Appeal from the United States District Court for the Western District of Washington D. C. No. CV-06-00494-MJP Marsha J. Pechman, District Judge, Presiding.
The opinion of the court was delivered by: Beezer, Circuit Judge
Argued and Submitted December 10, 2008 -- Seattle, Washington
Filed August 6, 2009; Amended January 13, 2010
Before: Robert R. Beezer, Ronald M. Gould and Consuelo M. Callahan, Circuit Judges.
This appeal stems from Plaintiffs' allegation that Defendant Mercer Island School District ("District") failed to provide K.L. with a free appropriate public education as required by the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1491.*fn1 The administrative law judge ("ALJ") analyzed Plaintiffs' claims using the free appropriate public education "educational benefit" standard interpreted by the Supreme Court in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), and concluded that the District provided a free appropriate public education. The district court concluded that Congress superseded Rowley in the 1997 Individuals with Disabilities Education Act amendment and held that K.L. was denied a free appropriate public education. The District appeals.
The district court exercised federal question jurisdiction over the instant case under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We hold that Rowley continues to set the free appropriate public education standard. We vacate the district court's orders except to the extent that we reverse the district court's conclusion that the District committed procedural violations of the Individuals with Disabilities Education Act that resulted in the denial of a free appropriate public education. We remand to the district court to review the ALJ's determination that the District provided K.L. with educational benefit as required by Rowley.
K.L. is a student of average intelligence that the District diagnosed with learning disabilities in first grade.*fn2 For second and third grades, the District educated K.L. in several general education classes upon determining that she would benefit from an education alongside her typically-developing peers for social and academic purposes. To "level the playing field" in K.L.'s mainstreamed general education classes, the District provided K.L. with accommodations. The District also provided K.L. with specially designed instruction (i.e., "special education") in reading and writing in a "resource room" for special students. For fourth and fifth grades, Parents paid for K.L. to attend a private school serving children with reading and writing difficulties.
K.L. returned to the District for her sixth grade education at Islander Middle School. The District reevaluated K.L. and determined that she was still eligible for special education. K.L.'s intelligence quotient ("IQ") revealed that she was in the average range at the low end. In accordance with K.L.'s individualized educational program, the District educated K.L. with specially designed instruction in reading, writing and mathematics. The District provided K.L. with accommodations in her general education classes including peers to help her read and take notes, use of spelling software, modified instructions, alternate exam methods, reduced assignments and extra time for assignments. K.L. ended her sixth grade year with an "A-" in special education reading, an "A-" in special education language arts, a "B" in special education mathematics, an "A" in special education structured study, an "A-" in general education science, a "pass" in general education art and a "pass" in general education Spanish.
In seventh grade, K.L. continued with largely the same individualized educational program that she followed in sixth grade after her individualized educational program team concluded that the program was effective. At the end of seventh grade, K.L. received an "A-" in special education language arts (i.e., reading and writing), an "A" in special education mathematics, an "A-" in special education structured study, a "B" in general education biology and an "A" in general education art.
In eighth grade, the District modified K.L.'s individualized educational program and provided 750 minutes per week of specially designed instruction in reading, writing, mathematics and study skills. K.L.'s accommodations basically stayed the same. Halfway through eighth grade, in January 2003, Mother contacted the District regarding K.L.'s frustrations with her language arts class. K.L. considered her language arts class "boring," "stupid" and "too hard." Specifically, K.L. did not like being singled out to give an answer in front of her classmates. In response, K.L.'s language arts teacher changed her teaching style, thereby galvanizing K.L. to increase her classroom participation and self-confidence.
K.L. took a standardized test of basic skills and scored in the second percentile of eighth graders. Although K.L. made progress on all of her eighth grade individualized educational program objectives, she failed to meet all writing objectives, two reading objectives, one mathematics objective and one study skills objective. At the end of eighth grade, K.L. received a "B" in special education language arts, a "B" in special education mathematics, an "A" in special education structured study, an "A" in general education science, an "A" in general education social studies and a "pass" as a teacher's assistant.
The District reevaluated K.L. after eighth grade in June 2003. K.L.'s IQ showed improvement in mathematics and regression in numerical operations. One of K.L.'s teachers observed that K.L. performed much better in class than her standardized test results showed. This was due to a combination of K.L.'s sporadic lack of motivation and propensity to get frustrated on tests and simply give up. K.L's individualized educational program team met shortly thereafter to discuss the District's reevaluation. A few days later, K.L.'s individualized educational program team met and developed a ninth grade individualized educational program with lofty objectives. Based on K.L.'s great progress in eighth grade mathematics, K.L. was placed in a ninth grade algebra class with a difficulty level between special education mathematics and general education algebra.
During first semester of ninth grade at Mercer Island High School, not only did K.L. earn good grades, such as an "A-" in algebra, but she also participated in athletics and enjoyed an active (and sometimes distractive) social life. Unfortunately, in March 2004, K.L. missed three weeks of school due to an illness. One of K.L.'s teachers believed that K.L. "was not the same student" after she returned and that she was less motivated. K.L. turned in only half of her algebra homework and her quiz and test grades decreased as a result. At K.L.'s request, her individualized educational program team returned her to special education mathematics and provided her with another resource room period. Parents hired a private educational consultant and began researching private schools for K.L.
At the end of ninth grade, K.L. received a "B-" in special education English foundations, an "A-" in special education mathematics, a "C" in general education history, a "B" in general education chemistry and an "A" as a teacher's assistant. K.L.'s grade point average was a 3.49, which was higher than both the median and mean grade point average for ninth graders in the District. By the end of ninth grade, K.L. met all of her mathematics and study skills individualized educational program objectives, however, she did not meet two of her reading objectives and any of her writing objectives. Never theless, K.L.'s individualized educational program team thought that K.L. "had a very successful year, her grades have been high and though at times she is frustrated or afraid, she has managed to tackle the projects with support." Unbeknownst to anyone at the District, Mother completed much of K.L.'s ninth grade homework, sometimes even in K.L.'s absence.
Shortly after ninth grade concluded, in June 2004, the District held an individualized educational program meeting and presented a proposed tenth grade individualized educational program to Parents. The proposed program provided 972 minutes per week of specially designed instruction in reading, writing, mathematics, study skills and transitions. K.L.'s reading goal was to increase reading decoding and comprehension skills on grade-level materials. K.L.'s written language goal was to increase written expression skills in a more independent manner. The individualized educational program provided most of the same accommodations as K.L.'s ninth grade individualized educational program with the addition of access to books on tape. The individualized educational program's transition statement indicated that K.L.'s programming "is aimed at attending a community or technical college."*fn3
Parents told the District that they were displeased with K.L.'s ninth grade education and were "looking at other options." This was the first time that Parents had ever expressed dissatisfaction with K.L.'s education.
On the same day, Parents applied to Landmark School, a private residential school in Massachusetts exclusively for learning-disabled students.*fn4 In her part of the application, K.L. indicated that she did not like attending Mercer Island High School because "my resource room teacher does not let me relax" and "I don't like the pressure to be an A student." K.L. generally thought that her peers were "competitive academically" and that if a student did not receive a 4.0 grade point average, "you were the odd one out" and "didn't fit in."
The day after the individualized educational program meeting, the District emailed Parents to set up another individualized educational program meeting to address Parents' dissatisfaction with the proposed program. Parents received the District's email but chose not to respond. Sometime thereafter, Mother told K.L.'s case manager at the District that K.L.'s primary problem was with the teaching style utilized in English foundations. K.L.'s case manager asked Mother if K.L. would be more comfortable in a class with either a oneto-one or one-to-two teacher to student ratio, although K.L.'s case manager personally believed that this environment would be too restrictive. Mother declined this more reading intensive proposal.
Later in June 2004, Parents sent the District a letter requesting an independent educational evaluation at the District's expense to be performed by Dr. Deborah Hill. See 20 U.S.C. § 1415(b)(1)(A). Parents indicated that they disagreed with the District's June 2003 reevaluation primarily because of inappropriate recommendations for instructional strategies and special education services. The District first rejected Dr. Hill because she was not on the District's approved list of evaluators; however, the District approved Dr. Hill shortly thereafter.
A few days later, the District sent a letter to Parents seeking their consent for an independent educational evaluation to be conducted by Children's Hospital Regional Medical Center ("Children's Hospital"). See 20 U.S.C. § 1414(a)(2). Parents did not return the consent form.
Dr. Hill evaluated K.L. in early July 2004. Dr. Hill found that K.L. was generally average and had an IQ of 101. K.L. scored in the borderline or extremely low range in written comprehension and written language. Dr. Hill concluded that K.L.'s special education at the District had been inadequate because K.L. needed an intensive approach to remedy her disability. Ultimately, Dr. Hill determined, no public school in Washington could provide K.L. with an ...