Appeal from the United States District Court for the District of Hawaii Helen Gillmor, Senior District Judge, Presiding D.C. No. 1:08-cv-00146-HG-BMK
The opinion of the court was delivered by: Pregerson, Circuit Judge:
Argued and Submitted June 18, 2010-Honolulu, Hawaii
Before: Betty B. Fletcher, Harry Pregerson, and Richard R. Clifton, Circuit Judges.
Opinion by Judge Pregerson;
Courtney G., a minor with dyslexia, by and through her mother and Guardian Ad Litem, Elizabeth G.,*fn1 appeals from the district court's order affirming the Administrative Hearings Officer's ("Hearing Officer") conclusion that the Hawaii Department of Education ("Hawaii DOE") properly found Courtney ineligible for services under the Individuals with Disabilities Education Act ("IDEA"). Hawaii DOE determined that Courtney did not qualify for special education under the "specific learning disability" classification because she could not demonstrate a "severe discrepancy" between her actual achievement and her intellectual capacity. Both the Hearing Officer and the district court rejected Courtney's argument that Hawaii DOE violated IDEA by relying exclusively on the "severe discrepancy model" to determine whether she had a "specific learning disability." We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
"Congress enacted IDEA in 1970 to ensure that all children with disabilities are provided a free appropriate public education which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of such children and their parents or guardians are protected." Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2491 (2009) (internal marks omitted) (citing Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 367 (1985)). To qualify for services under IDEA, a child must show (1) the existence of one or more disability classifications, and (2) a need for special education. 20 U.S.C. § 1401(3)(A).
To establish eligibility under the "specific learning disability" classification, a student must show that she (1) has "a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to . . . read, write, spell, or to do mathematical calculations, including conditions such as . . . dyslexia," 34 C.F.R. § 300.8(c)(10)(i); and (2) she needs special education. 20 U.S.C. § § 1401(3)(A), 1401(30)(A). For many years, federal regulations required students to demonstrate their need for special education under the "specific learning disability" classification by showing a "severe discrepancy" between actual achievement and intellectual ability. See Dixie Snow Huefner,
The Final Regulations for the Individuals with Disabilities Education Improvement Act (IDEA '04), 217 Ed. Law Rep. 1, 8-9 (2007); see also Mark C. Weber, The IDEA Eligibility Mess, 57 Buff. L. Rev. 83, 123-24 (2009).
The federal regulations did not define "severe discrepancy," but rather, left the matter to the discretion of each state. Perry A. Zirkel, The Legal Meaning of Specific Learning Disability for Special Education Eligibility, 28 (2006). Hawaii defined a "severe discrepancy" as a 1.5 standard deviation between actual achievement and intellectual ability scores. Haw. Code R. § 8-56-26(b) (repealed Nov. 23, 2009). Alternatively, if standardized tests were invalid or did not reveal a statistically significant deviation, Hawaii permitted consideration of additional evidence to determine whether a "severe discrepancy" existed, such as work samples and information provided by the parent. Haw. Code R. § 8-56-26(b) (repealed Nov. 23, 2009).
Over the last decade, scientific research has established that the "severe discrepancy model" is not necessarily a good indicator of whether a child has a learning disability. See Weber, supra at 123-27; H.R. Rep. No. 108-77 at 112 (2003). The "severe discrepancy model" is based on the premise that underperforming students with relatively high IQs must have a learning disability, whereas underperforming students with low IQs are just "slow." See Suzanne Wilhelm, Accommodating Mental Disabilities in Higher Education: A Practical Guide to ADA Requirements, 32 J.L. & Educ. 217 (2003). This premise is subject to dispute because intelligence testing is not the best indicator of academic potential. See Susan E. McGuigan, Documenting Learning Disabilities: Law Schools' Responsibility to Set Clear Guidelines, 36 J.C. & U.L. 191, 196. As a result, reliance on the "severe discrepancy model" tends to under-identify children with below average intelligence. Id. Moreover, education experts have criticized the model as unreliable, invalid, easily undermined, and harmful because it delays early treatment. See Weber, supra at 124.
To address these growing concerns, Congress eliminated the "severe discrepancy" requirement when it reauthorized IDEA in 2004. See 20 U.S.C. § 1414(b)(6)(A) ("[W]hen determining whether a child has a specific learning disability . . . , a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning."); see also H.R. Rep. No. 108-77 at 112 (2003) (indicating that Congress is "discouraged by the widespread reliance on the IQ-achievement discrepancy model that serves as the determining factor of whether a child has a specific learning disability").
Although the amended statute does not require school districts to use an alternative model to determine whether a student has a "specific learning disability," it expressly permits use of the "response to intervention model." See 20 U.S.C. § 1414(b)(6)(B) ("In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention . . . "). Moreover, legislative history endorses this model. See H.R. Rep. No. 108-77, at 107 ("The Committee is greatly encouraged by the growing use of alternative measures that are being used in place of the IQ-achievement discrepancy model [including the 'response to intervention model'].").
The premise underlying the "response to intervention model" is that "a majority of students can learn if effective instruction is provided." Nicholas L. Townsend, Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students, 40 Creighton L. Rev. 229, 259 (2007). A student who does not progress adequately after exposure to increasingly intensive and individualized instruction is deemed eligible for special education. See id.; see also Weber, supra 128. "Thus, the definition of disability and the identification of learning disabled students become linked to instruction." Townsend, supra at 259. Many experts favor the "response to intervention model" because it identifies students with a "specific learning disability" before academic failure occurs, whereas the "severe discrepancy model" takes a "wait to fail" approach. See Weber, supra at 131-33; H.R. Rep. No. 108-77, at 112 (2003).
The United States Department of Education issued regulations implementing the 2004 amendments to IDEA on August 14, 2006, which became effective on October 13, 2006. See Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg. 46540, 46786 (Aug. 14, 2006) (to be codified at 34 C.F.R. § § 300.307). The amended regulations provide that an evaluation team may find a child eligible for special education under the "specific learning disability" classification if the child demonstrates (1) inadequate achievement relative to age or grade level standards; and (2) insufficient progress after intervention, or a pattern of strengths and weaknesses in achievement relative to age, grade-level standards, or intellectual development, which indicates a "specific learning disability."*fn2 See 34 C.F.R. § 300.309(a); see also Huefner, supra at 10-11. The regulations prohibit states from requiring school districts to use the "severe discrepancy model" and compel states to allow school districts to use the "response to intervention model." See 34 C.F.R. § 300.307(a)(1).
Hawaii DOE did not conform its regulations to federal law until November 23, 2009-more than three years after the federal regulations took effect. These new regulations permit a student to qualify for special education absent a "severe discrepancy" between actual achievement and intellectual ability.*fn3
From the second grade in 2003 until the beginning of the sixth grade in 2007, Courtney attended a public elementary school in Hawaii. During this period, Courtney struggled with reading and consistently read below grade level on both standardized and informal reading tests. From the second through the fourth grade, Courtney was placed in the "at risk" category according to a standardized literacy test. Despite daily reading practice at home with her grandfather, small group reading intervention at school, and private tutoring at her mother's expense, she still remained in the "at risk" category. By the middle of her fourth grade year, Courtney was 2.4 grade levels behind in reading.
1. Hawaii DOE Assessments
Towards the end of Courtney's fourth grade year, Court-ney's mother and grandfather requested a special education evaluation meeting with Hawaii DOE. At the meeting, Court-ney's mother and grandfather requested that Hawaii DOE use the "response to intervention model" to determine whether Courtney had a "specific learning disability." Although Hawaii DOE agreed to an in-depth achievement evaluation of Courtney's abilities, Hawaii DOE refused to use the "response to intervention model."
Hawaii DOE's "in-depth achievement evaluation" con- sisted of a classroom reading assessment report, conducted by a special education resource teacher for the school district, and a formal academic assessment, conducted by a "psycho-logical examiner." Both tests were conducted at the end of Courtney's fourth grade year. According to the classroom assessment report, "Courtney struggles as a reader, [is] able to decode at about the [third to fourth] grade level but comprehends at about the [second to third] grade level." The report also noted that Courtney needed to improve her oral fluency skills, which were at the second to third grade level. The formal academic assessment indicated that Courtney's overall academic performance was consistent with the "Average to Below Average" range, and that her weakest skills related to reading and math fluency.
2. June 7, 2006, Eligibility Meeting
At the end of Courtney's fourth grade year, the evaluation team*fn4 convened to determine whether Courtney was eligible for special education. After considering Hawaii DOE's assessments and an IQ test that indicated Courtney had a low-average IQ, Hawaii DOE determined that Courtney was not eligible for special education because no "severe discrepancy" existed between Courtney's IQ and her achievement on standardized tests. Courtney's mother and grandfather disputed Hawaii DOE's eligibility determination and requested that Hawaii DOE use the "response to intervention" model. Hawaii DOE never applied this alternative model to determine whether Courtney was eligible for special education.
3. Dr. Murphy-Hazzard's Neuropsychological Evaluation
In June 2006, Courtney's mother requested another special education evaluation of Courtney, including a neuropsychological evaluation and a dyslexia test. Hawaii DOE agreed to several additional assessments, but rejected these particular requests. After Courtney's pediatrician recommended that Courtney be evaluated for a possible learning disability by a neuropsychologist, Courtney's mother, at her own expense, hired Dr. Peggy Murphy-Hazzard ("Dr. Murphy-Hazzard"), a licensed clinical psychologist, to perform a neuropsychological evaluation of Courtney.
Dr. Murphy-Hazzard evaluated Courtney at the beginning of her fifth grade year. According to Dr. Murphy-Hazzard's tests, Courtney could only read at a third grade level, which fell in the low-average range, but comprehended at a fourth grade level, which fell in the average range. Dr. Murphy-Hazzard also noted that Courtney struggled with word recognition and spelling. Based on these observations, Dr. ...