Michael P. v. Department of Education

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL P.; ELIZABETH G., as 

Guardian Ad Litems of Courtney

G., an incompetent minor;

No. 09-16078

COURTNEY G., an incompetent

minor, D.C. No.

Plaintiffs-Appellants,  1:08-cv-00146-

HG-BMK

v.

OPINION

DEPARTMENT OF EDUCATION,

STATE OF HAWAII,

Defendant-Appellee.



Appeal from the United States District Court

for the District of Hawaii

Helen Gillmor, Senior District Judge, Presiding

Argued and Submitted

June 18, 2010—Honolulu, Hawaii

Filed September 8, 2011

Before: Betty B. Fletcher, Harry Pregerson, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Pregerson;

Dissent by Judge Clifton

17023

17026 MICHAEL P. v. DEPARTMENT OF EDUCATION

COUNSEL

Carl M. Varady, Honolulu, Hawaii, for the plaintiffs-

appellants.

Rebecca A. Copeland, Department of Education, State of

Hawaii, Honolulu, Hawaii, for the defendant-appellee.

OPINION

PREGERSON, Circuit Judge:

Courtney G., a minor with dyslexia, by and through her

mother and Guardian Ad Litem, Elizabeth G.,1 appeals from

the district court’s order affirming the Administrative Hear-

ings 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 deter-

mined that Courtney did not qualify for special education

under the “specific learning disability” classification because

1

Courtney’s grandfather, Michael P., filed a complaint individually and

as Guardian ad Litem of Courtney, appealing the Hearing Officer’s deci-

sion. The district court granted leave to amend the complaint to substitute

Courtney’s mother as Guardian. The district court ultimately dismissed

Michael P. from the lawsuit for lack of standing. This determination is not

at issue on appeal.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17027

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 exclu-

sively 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.

BACKGROUND

A. Statutory Background

“Congress enacted IDEA in 1970 to ensure that all children

with disabilities are provided a free appropriate public educa-

tion 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 pro-

tected.” Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2491

(2009) (internal marks omitted) (citing Sch. Comm. of Bur-

lington 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 disabili-

ty” classification, a student must show that she (1) has “a dis-

order 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, includ-

ing 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” clas-

sification by showing a “severe discrepancy” between actual

achievement and intellectual ability. See Dixie Snow Huefner,

17028 MICHAEL P. v. DEPARTMENT OF EDUCATION

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 discrepan-

cy,” but rather, left the matter to the discretion of each state.

Perry A. Zirkel, The Legal Meaning of Specific Learning Dis-

ability 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). Alter-

natively, if standardized tests were invalid or did not reveal a

statistically significant deviation, Hawaii permitted consider-

ation 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 indi-

cator 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, Accommodat-

ing 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 intelli-

gence. 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.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17029

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 expres-

sion, listening comprehension, written expression, basic read-

ing 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 dis-

tricts to use an alternative model to determine whether a stu-

dent 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 spe-

cific learning disability, a local educational agency may use

a process that determines if the child responds to scientific,

research-based intervention . . . ”). Moreover, legislative his-

tory 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 Dis-

abilities 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 instruc-

tion is deemed eligible for special education. See id.; see also

17030 MICHAEL P. v. DEPARTMENT OF EDUCATION

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 regula-

tions 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 Dis-

abilities 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 educa-

tion 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 intellec-

tual development, which indicates a “specific learning disabili-

ty.”2 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 inter-

vention 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

2

These regulations incorporate the “response to intervention model” as

a possible way to identify a child eligible for special education under the

“specific learning disability” classification.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17031

a student to qualify for special education absent a “severe dis-

crepancy” between actual achievement and intellectual ability.3

B. Factual Background

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 stan-

dardized and informal reading tests. From the second through

the fourth grade, Courtney was placed in the “at risk” cate-

gory 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 “re-

sponse to intervention model.”

Hawaii DOE’s “in-depth achievement evaluation” con-

3

The amended Hawaii regulation provides that an evaluation team may

determine that a student has a “specific learning disability” if the student

demonstrates (1) inadequate achievement or a severe discrepancy between

intellectual ability and academic achievement, and (2) insufficient prog-

ress or a pattern of strengths and weaknesses relevant to identifying a

“specific learning disability”. See Haw. Code R. § 8-60-41(a).

17032 MICHAEL P. v. DEPARTMENT OF EDUCATION

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 com-

prehends 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 “Aver-

age 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

team4 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 stan-

dardized 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 deter-

mine whether Courtney was eligible for special education.

4

At a minimum, federal regulations require evaluation teams to include

the child’s parents, the child’s regular teacher, and at least one person

qualified to conduct diagnostic tests of children, such as a school psychol-

ogist, speech-language pathologist, or remedial reading teacher. 34 C.F.R.

§ 300.308. At Courtney’s meeting, the following individuals participated:

the principal, psychological examiner, school psychologist, student ser-

vices coordinator, resource teacher, several general education teachers,

and Courtney’s mother and grandfather.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17033

3. Dr. Murphy-Hazzard’s Neuropsychological

Evaluation

In June 2006, Courtney’s mother requested another special

education evaluation of Courtney, including a neuropsy-

chological 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 neuropsychologi-

cal 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 recog-

nition and spelling. Based on these observations, Dr. Murphy-

Hazzard diagnosed Courtney with dyslexia and recommended

immediate remediation and intensive tutoring.5

4. November 29, 2006, Eligibility Meeting

Courtney’s final eligibility meeting occurred after the first

quarter of the fifth grade on November 29, 2006. At the meet-

ing, the evaluation team considered Dr. Murphy-Hazzard’s

report and the results of informal reading tests conducted by

Liza Galindo (“Ms. Galindo”), Courtney’s fifth grade teacher.

5

Dr. Murphy-Hazzard also diagnosed Courtney with “attention deficit

hyperactivity disorder” and “mixed receptive-expressive language disor-

der.” The school psychologist, psychological examiner, and speech pathol-

ogist disputed some of these diagnoses at the eligibility meeting held on

November 29, 2006. Courtney’s eligibility for special education as a result

of these diagnoses are not at issue in this appeal.

17034 MICHAEL P. v. DEPARTMENT OF EDUCATION

These tests showed that Courtney read at the fourth grade

level at the start of the fifth grade. Courtney’s reading did not

significantly improve during the first quarter of the fifth

grade. Despite evidence that Courtney had dyslexia and was

not progressing adequately with regular intervention, Hawaii

DOE once again determined that Courtney was not eligible

for special education because her academic achievement was

commensurate with her ability, as measured by her IQ.6

5. Individualized Dyslexia Tutoring

Approximately one month after Hawaii DOE denied Court-

ney eligibility for special education, Courtney took another

informal reading test. Courtney performed very poorly on

fourth grade level reading comprehension and even struggled

to comprehend at the third grade level. Frustrated with Court-

ney’s lack of progress, Courtney’s mother, at the family’s

expense, hired Dr. Kathy Ferguson (“Dr. Ferguson”), who is

certified to teach dyslexic students, to help Courtney improve

her reading skills.

Dr. Ferguson began tutoring Courtney in January 2007, the

middle of Courtney’s fifth grade year. Based on her initial

assessments, Dr. Ferguson concluded that Courtney had a

“quite severe reading disability” and that she read three grade

levels behind. Dr. Ferguson provided Courtney with weekly

dyslexia reading tutoring, which resulted in significant prog-

ress. By the end of her fifth grade year, Courtney “approached

reading proficiency” according to a standardized state test.

Moreover, Courtney performed better on informal reading

tests, reading a fifth-grade-level passage with 95 percent

6

Dr. Murphy-Hazzard found that Courtney had a higher IQ than indi-

cated by Hawaii DOE’s evaluation. According to Hawaii DOE, Courtney

possessed only low-average intelligence, but Dr. Murphy-Hazzard’s

assessment showed that Courtney possessed average intelligence. Never-

theless, no severe discrepancy existed between Courtney’s achievement

and ability because Courtney’s academic achievement scores were not sig-

nificantly lower than her IQ score.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17035

accuracy and 50 percent comprehension at the beginning of

the sixth grade. Before Dr. Ferguson’s tutoring, Courtney read

a fourth grade passage with only 90 percent accuracy and 10

percent comprehension.

6. Assets School

Despite Courtney’s progress, Courtney still needed more

help because she was so far behind. According to Dr. Fergu-

son, Courtney needed more intensive special education ser-

vices to address her reading fluency and vocabulary deficits.

In addition to private dyslexia tutoring, Dr. Ferguson recom-

mended that Courtney enroll in Assets School, a private

school for dyslexic and gifted children that incorporates spe-

cialized instruction into its curriculum. At the beginning of

Courtney’s sixth grade year, while administrative proceedings

were still pending, Courtney’s mother withdrew Courtney

from public school and, at her own expense, enrolled Court-

ney at Assets School.7

C. Procedural Background

1. Administrative Proceedings

On March 15, 2007, in the middle of Courtney’s fifth grade

year, Courtney’s mother and grandfather requested a due pro-

cess hearing, alleging that Hawaii DOE improperly denied

Courtney special education services. Courtney’s mother and

grandfather asked the Hearing Officer to determine that

Courtney was eligible for special education under the “spe-

cific learning disability” classification and requested intensive

dyslexia tutoring and remediation, reimbursement for tutoring

and non-DOE evaluations, and compensatory education for

Courtney’s fourth and fifth grade years.

7

The annual tuition for Assets is $15,600, plus $1,600-$1,700 for bus-

ing. Courtney also attended a summer school at Assets, which cost

approximately $1,600.

17036 MICHAEL P. v. DEPARTMENT OF EDUCATION

Courtney’s mother produced four expert witnesses at the

hearings, held on August 29-31 and December 27, 2007.

These witnesses included Dr. Murphy-Hazzard, the clinical

psychologist who performed Courtney’s neuropsychological

evaluation; Dr. Ferguson, a certified teacher of dyslexic stu-

dents who provided Courtney private tutoring; Dr. Patricia

Edelen-Smith, a professor in the Special Education Depart-

ment at the University of Hawaii; and Dr. Peter Dorwick, a

professor of Disability Studies at the University of Hawaii.

These experts consistently testified that the discrepancies

between Courtney’s sub-test scores indicate that she has a

learning disability and that her learning disability depressed

her IQ score. Dr. Ferguson testified from her personal experi-

ence tutoring Courtney that Courtney had a severe reading

disability. Moreover, all the experts testified that Courtney

needed special education to benefit from general education

and avoid academic failure.

Hawaii DOE presented expert testimony by Dr. Abigail

Royston (“Dr. Royston”), a Hawaii DOE school psychologist.

Dr. Royston did not attend any of Courtney’s special educa-

tion eligibility meetings, and unlike several of Courtney’s

mother’s expert witnesses, Dr. Royston had never met Court-

ney. Dr. Royston criticized Dr. Murphy-Hazzard’s neuropsy-

chological evaluation on a number of grounds, but ultimately

agreed that Courtney had dyslexia. Nevertheless, she agreed

with Hawaii DOE’s conclusion that Courtney was not eligible

for special education. Dr. Royston explained that a child with

a disability must need special education to qualify for ser-

vices. She surmised that Hawaii DOE determined that Court-

ney did not need special education because she was

progressing with “regular education intervention.” Dr. Roys-

ton conceded, however, that Courtney should be deemed eli-

gible for special education if her progress during the fifth

grade was attributable to the individualized dyslexia tutoring

she received from Dr. Ferguson. Such tutoring qualifies as

MICHAEL P. v. DEPARTMENT OF EDUCATION 17037

special education.8 According to Dr. Royston, the critical

question was whether Courtney “had started to make the

advances that we see that she made by the end of the fifth

grade year before she started that [individualized dyslexia

tutoring].”

Hawaii DOE also presented testimony by Ms. Galindo,

Courtney’s fifth grade teacher. Even though Ms. Galindo’s

informal reading tests showed that Courtney read below grade

level at the start of the fifth grade and that Courtney did not

improve by the time of her final eligibility meeting, Ms.

Galindo testified that she did not believe Courtney needed

special education because she observed some progress in the

classroom.

On February 29, 2008, the Hearing Officer issued his deci-

sion, concluding that Hawaii DOE properly determined that

Courtney was ineligible for special education under the “spe-

cific learning disability” classification. Although the Hearing

Officer found that Courtney suffered from dyslexia, he deter-

mined that Courtney did not need special education because

no “severe discrepancy” existed between her actual achieve-

ment and intellectual ability. The Hearing Officer also noted

that Courtney did not need special education because the evi-

dence suggested that she was progressing and had nearly

reached proficiency in reading.

2. District Court Proceedings

The district court affirmed the Hearing Officer’s decision

that Courtney was ineligible for special education under

IDEA. First, the district court determined that the Hearing

Officer’s decision was entitled to deference because the Hear-

ing Officer considered and discussed the available evidence,

including testimony by Courtney’s expert witnesses. Second,

8

According to Dr. Royston, general tutoring provided by a private tutor-

ing center did not qualify as special education.

17038 MICHAEL P. v. DEPARTMENT OF EDUCATION

the district court held as a matter of law that Hawaii DOE

may use the “severe discrepancy model” under the 2006 fed-

eral regulations. Third, the district court held that Courtney’s

test results did not demonstrate a “severe discrepancy”

between her intellectual ability and academic achievement

because her scores on standardized achievement tests were

higher than her IQ score.

Courtney’s mother appeals the district court’s decision, pri-

marily arguing that Hawaii DOE improperly relied exclusively

on the “severe discrepancy model” to determine whether

Courtney was eligible for special education under the “spe-

cific learning disability” classification.9 We agree.

STANDARD OF REVIEW

We review a district court’s findings of fact in IDEA cases

for clear error, and we review its conclusions of law de novo.

Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir.

1996). We review the Hearing Officer’s decision de novo, but

we “must give deference to the [Hearing Officer]’s findings,

particularly when . . . they are thorough and careful[,] [and]

must give ‘due weight’ to judgments of educational policy.”

Id. (internal citations and quotation marks omitted). “We

define ‘due weight’ as follows: [t]he court, in recognition of

9

Courtney also argues that Hawaii DOE violated IDEA by failing to

consider the results of Dr. Murphy-Hazzard’s neuropsychological evalua-

tion. This argument fails because the record shows that the evaluation

team discussed the neuropsychological evaluation at length. IDEA only

requires a school district to consider the results of a parent-initiated evalu-

ation; it does not require a school district to adopt the conclusions of such

an evaluation. See 34 C.F.R. § 300.502(c)(1).

Courtney also argues that Hawaii DOE shirked its child find duty.

Under IDEA, all states have an obligation to ensure that children with dis-

abilities residing in their state are identified, located and evaluated. See 20

U.S.C. § 1412(a)(3).

We need not reach this argument because we reverse and remand on the

eligibility question.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17039

the expertise of the administrative agency, must consider the

findings carefully and endeavor to respond to the hearing offi-

cer’s resolution of each material issue. After such consider-

ation, the court is free to accept or reject the findings in part

or in whole.” N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d

1202, 1212 (9th Cir. 2008) (internal citations and quotation

marks omitted).

DISCUSSION

I. Hawaii DOE’s Regulations Requiring Exclusive Reli-

ance on the “Severe Discrepancy Model” Violate

IDEA

[1] Federal regulations cabin states’ discretion to create

special education eligibility criteria in two ways. First, states

“[m]ust not require the use of the severe discrepancy between

intellectual ability and achievement for determining whether

a child has a specific learning disability.” 34 C.F.R.

§ 300.307(a)(1). Second, states “[m]ust permit the use of a

process based on the child’s response to scientific, research-

based intervention.” 34 C.F.R. § 300.307(a)(2). These regula-

tions were effective beginning October 13, 2006, and there-

fore were controlling at the time of Courtney’s final eligibility

meeting on November 29, 2006.

The district court held that § 300.307(a) does not bar use of

the “severe discrepancy model.” This holding misses the

point. Courtney’s mother concedes that the federal regulations

permit use of the “severe discrepancy model,” but contends

that Hawaii DOE may not use the “severe discrepancy model”

as “the sole basis of determining eligibility” (emphasis

added).

[2] The plain and unambiguous language of § 300.307(a)

prohibits states from requiring exclusive reliance on the “se-

vere discrepancy model” and also requires states to allow use

of the “response to intervention model.” The Hawaii regula-

17040 MICHAEL P. v. DEPARTMENT OF EDUCATION

tions in effect at the time of Courtney’s final eligibility meet-

ing conflicted with § 300.307(a) by conditioning eligibility

for special education on the existence of a “severe discrepan-

cy” between academic achievement and intellectual ability

without permitting use of the “response to intervention

model.” See Haw. Code R. § 8-56-26 (repealed Nov. 23,

2009). Hawaii DOE did not amend its regulations to conform

with federal law until November 23, 2009—more than three

years after the federal regulations were effective. See Haw.

Code R. § 8-60-41. Accordingly, Hawaii DOE procedurally

violated IDEA by requiring use of the “severe discrepancy

model” to determine whether a child is eligible for special

education under the “specific learning disability” classifica-

tion.

[3] Hawaii DOE argues that it is not subject to

§ 300.307(a)(1). By its terms, § 300.307(a)(1) applies to states

and not to local school districts. See John Dinan, The Meaning

of State Constitutional Education Clauses: Evidence from the

Constitutional Convention Debates, 70 Alb. L. Rev. 927, 965

(2007). Unlike other states, Hawaii only has a state educa-

tional agency and does not have separate local school dis-

tricts. Id. Thus, Hawaii DOE serves both as the state

educational agency, which creates statewide education regula-

tions, and as the local school district, which provides educa-

tional services directly to students. Id. Because of these

unique circumstances, Hawaii DOE argues that § 300.307(a)

should not apply. According to Hawaii DOE, application of

§ 300.307(a) would deprive Hawaii DOE of its right to

choose the best method for identifying students with a “spe-

cific learning disability,” a right every other school district

enjoys.

[4] While Hawaii DOE is correct that it functions as both

a state agency entrusted with IDEA compliance and as a

direct provider of educational services, Hawaii DOE is incor-

rect that it may shirk its responsibilities as a state educational

agency just because it also provides educational services

MICHAEL P. v. DEPARTMENT OF EDUCATION 17041

directly to students. Under the amended regulations, no state

educational agency may condition eligibility for special edu-

cation on the existence of a “severe discrepancy” between

academic achievement and intellectual ability, and every state

must allow use of the “response to intervention” model.10 34

C.F.R. § § 300.307(a)(1), (2). As a state educational agency,

Hawaii DOE was required to promulgate regulations that are

consistent with federal regulations. See 20 U.S.C. §§ 1407(a),

1412(a)(11). Hawaii DOE failed to fulfill this obligation by

continuing to operate under regulations that required use of

the “severe discrepancy model” and did not permit use of the

“response to intervention model.” Accordingly, Hawaii DOE

procedurally violated IDEA.11 To hold otherwise would be

detrimental to the children of Hawaii and contrary to legisla-

tive intent. See H.R. Rep. 108-77, at 107 (noting that exclu-

sive reliance on the “severe discrepancy model” may result in

delayed or incorrect identification of students who are eligible

for services under IDEA); accord Weber, supra 123-27.

10

Our dissenting colleague agrees that “34 C.F.R. § 300.307(a)(1) pro-

hibits states from requiring local districts to use the severe discrepancy

model.” Dis. Op. at 17049. Our colleague further notes that “[t]he final

regulations left the choice of whether to use the severe discrepancy model

or alternative procedures to the discretion of local school districts.” Dis.

Op. at 17048. But, according to the dissent, Hawaii DOE’s unique

situation—as a direct provider of educational services—renders it more

like a local school district and, thus, the regulation’s prohibition is inappli-

cable. If that were so, any state could effectively remove from any local

school district the discretionary authority to choose whether to use the

severe discrepancy model or an alternative model by providing direct edu-

cational services itself, for whatever reason that state chose to do so.

Moreover, Congress was presumably aware of Hawaii’s unique situation

and made no exception for it.

11

In so holding, we certainly mean no disrespect to our dissenting col-

league or to the State of Hawaii. We merely hold Hawaii and Hawaii DOE

to the same standards Congress has chosen for all states and state agencies

entrusted with IDEA compliance.

17042 MICHAEL P. v. DEPARTMENT OF EDUCATION

II. Whether Courtney Was Erroneously Found Ineligi-

ble for Special Education

[5] A procedural violation of IDEA is harmless unless it

deprives the child of an educational opportunity. See R.B. v.

Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th Cir.

2007). A child experiences an egregious loss of educational

opportunity when she is erroneously denied eligibility for spe-

cial education services. Cf. T.A., 129 S. Ct. at 2495 (“It would

be particularly strange for the Act to provide a remedy, as all

agree it does, when a school district offers a child inadequate

special education services but to leave parents without relief

in the more egregious situation in which the school district

unreasonably denies a child access to services altogether.”).

Thus, our next task is to determine whether Hawaii DOE’s

unlawful regulations, which require use of the “severe dis-

crepancy model,” resulted in an improper special education

eligibility determination.

Hawaii DOE eventually amended the unlawful regulations

applied at Courtney’s eligibility meeting to conform with fed-

eral law. Haw. Code R. § 8-60-41(a)(1)-(2). Under these new,

conforming regulations, an evaluation team may find a stu-

dent eligible for special education under the “specific learning

disability” classification if:

(1) (A) The student does not achieve adequately for

the student’s age or to meet State-approved grade-

level standards in one or more of the following areas,

when provided with learning experiences and

instruction appropriate for the student’s age or State-

approved grade-level standards:

(i) Oral expression;

(ii) Listening comprehension;

(iii) Written expression;

MICHAEL P. v. DEPARTMENT OF EDUCATION 17043

(iv) Basic reading skill (including phone-

mic awareness, phonics, and/or vocabu-

lary);

(v) Reading fluency skills;

(vi) Reading comprehension;

(vii) Mathematics calculation;

(viii) Mathematics problem solving; or

(B) The student demonstrates a severe discrepancy

between actual achievement and intellectual ability

by a difference of at least one and one-half standard

deviations in one or more of the areas in subpara-

graph (A); and

(2) (A) The student does not make sufficient prog-

ress to meet age or State-approved grade-level stan-

dards in one or more of the areas identified in

paragraph (1)(A) when using a process based on the

student’s response to scientific, research-based inter-

vention; or

(B) The student exhibits a pattern of strengths and

weaknesses in performance, achievement, or both,

relative to age, State-approved grade-level standards,

or intellectual development, that is determined by the

group to be relevant to the identification of a specific

learning disability, using appropriate assessments

....

Haw. Code R. § 8-60-41(a)(1)-(2). Unlike Hawaii’s prior reg-

ulations, these new regulations do not require a “severe dis-

crepancy” between intellectual ability and academic

achievement. Moreover, these new regulations permit use of

the “response to intervention model.” Id.

17044 MICHAEL P. v. DEPARTMENT OF EDUCATION

[6] Under Hawaii’s new regulations, a child will be

deemed eligible for special education under the “specific

learning disability” classification if she satisfies two sets of

criteria. First, the child must demonstrate either (1) inadequate

achievement, or (2) a severe discrepancy between achieve-

ment and ability. Id. Second, the child must demonstrate

either (1) insufficient progress, or (2) a pattern of strengths or

weaknesses in performance consistent with a “specific learn-

ing disability.” Id. 20 U.S.C. § 1415(i)(2)(C)(iii) provides that

a court should base its decision with respect to a child’s eligi-

bility on the preponderance of the evidence. The district court

is the traditional forum in which facts are assessed and evi-

dence is weighed, as it has the ability to delve deeply into fac-

tual records and, where necessary, conduct evidentiary

hearings. See Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 402-03 (1990) (noting, in the context of Rule 11, that

“the district court is better situated than the court of appeals

to marshal the pertinent facts and apply the fact-dependent

legal standard”); In re Bradford, 112 B.R. 347, 352 (9th Cir.

1990) (citing Anderson v. City of Bessemer City, N.C., 470

U.S. 564, 574 (1985)) (“The trial judge’s major role is the

determination of fact, and with experience in fulfilling that

role comes expertise.”). Therefore, the district court is the

appropriate authority to assess and reach a conclusion as to

Courtney’s eligibility for special education under the “specific

learning disability” classification, a primarily fact-based

inquiry. Accordingly, this court hereby remands this case

back to the district court to determine, by a preponderance of

the evidence, whether Courtney would be eligible for special

education under the “specific learning disability” classifica-

tion.

III. Reimbursement

Courtney’s mother seeks reimbursement for Courtney’s pri-

vate school tuition at Assets, private tutoring, and related

expenses.12 We may award reimbursement for private school

12

Although Courtney’s mother requested reimbursement for non-DOE

evaluations at the due process hearing, she does not request such reim-

bursement in her civil action.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17045

placement if a school district unreasonably finds a child with

disabilities ineligible for services under IDEA and the private

school placement is appropriate. See T.A., 129 S. Ct. at 2495-

96. Reimbursement is also available for private tutoring and

related services, such as transportation. See, e.g., Union Sch.

Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir. 1994) (holding

that reimbursement for reasonable transportation to private

school placement is permitted as a related expense); W.G. v.

Bd. of Trs. of Target Range Sch. Dist. No. 23, 960 F.2d 1479,

1487 (9th Cir. 1992) (awarding parents reimbursement for

private tutoring).

[7] As discussed above, the district court must determine

whether Hawaii DOE erroneously denied Courtney eligibility

for special education under the “specific learning disability”

classification. We remand to the district court to determine

whether Courtney’s privately procured education, including

private school placement, private tutoring and related ser-

vices, was appropriate and to award reimbursement accord-

ingly. See, e.g., Adams v. Oregon, 195 F.3d 1141, 1151 (9th

Cir. 1999) (finding in favor of student, but remanding to the

district court to determine whether private services obtained

by student’s parents were appropriate); accord D.S. v. Bay-

onne Bd. of Educ., 602 F.3d 553, 569 (3d Cir. 2010) (finding

in favor of student, but remanding to the district court to

determine the precise relief that should be afforded to the stu-

dent, including reimbursement).

CONCLUSION

Hawaii DOE procedurally violated IDEA by applying regu-

lations that require exclusive reliance on the “severe discrep-

ancy model” at Courtney’s final eligibility meeting. This

violation deprived Courtney of a significant educational

opportunity because it resulted in an erroneous eligibility

determination. Accordingly, we REVERSE the district court’s

order affirming the Hearing Officer’s decision and REMAND

for further proceedings to determine (1) whether Courtney has

17046 MICHAEL P. v. DEPARTMENT OF EDUCATION

a “specific learning disability” and is eligible for services

under IDEA, (2) whether Courtney’s placement at Assets and

private dyslexia reading tutoring is appropriate, and (3) the

appropriate amount of reimbursement.

REVERSED AND REMANDED.

CLIFTON, Circuit Judge, dissenting:

According to the majority, there is only one school district

in the entire country which is forbidden from deciding for

itself whether to use the “severe discrepancy model” in deter-

mining whether a student has a specific learning disability.

That school district is not one in which either of the judges in

the majority live. It is where I live: the state of Hawaii.

The majority’s decision is not based on any particular ani-

mus toward me, nor, I am sure, by any antagonism toward the

state of Hawaii. Nonetheless, I view the majority opinion as

remarkably disrespectful towards the state, simply because

Hawaii has decided to operate its public schools through a

single statewide school district. Because the majority opinion

is also wrong in its interpretation of federal law regarding the

authority of the Hawaii Department of Education (“Hawaii

DOE”) under IDEA and has not shown the proper deference

to the findings of the hearing officer, I respectfully, but force-

fully, dissent.

I. Hawaii DOE’s Regulations Requiring Exclusive

Reliance on the “Severe Discrepancy Model” Did Not

Violate IDEA

Hawaii is the only state in the nation that has placed the pri-

mary responsibility for public education on the state itself. It

does not operate public schools through smaller local districts.

The majority ignores the fact that the Hawaii DOE is the local

MICHAEL P. v. DEPARTMENT OF EDUCATION 17047

educational agency and treats it instead as if its role was that

of supervising the actual local school authorities.

Neither the federal statute nor the regulations prevent any

local educational agency from using the severe discrepancy

model to determine the existence of a specific learning dis-

ability. Indeed, the statute, as amended, is explicitly worded

in a way that reflects the intent to permit the local agency to

decide for itself. As the majority opinion describes, at

17027-28, federal regulations formerly compelled the use of

the severe discrepancy measure. In 2004, Congress eliminated

that requirement. As amended, 20 U.S.C. § 1414(b)(6)(A)

provides that “when determining whether a child has a spe-

cific 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.”

Notably, the statute was not amended to say that a local

school district was forbidden to use that measure. Congress

could have so provided if that was its intent, but it did not.

Instead, Congress left the matter to the local district’s judg-

ment. The legislative history behind the 2004 amendments to

IDEA clearly indicated the intent of Congress to “specifically

allow[s] local educational agencies to continue to use the dis-

crepancy model.” See H.R. Rep. 108-77, Sec. 204, at 107

(2003).

That Congress intended for the decision to be made by the

local school district was further demonstrated by its approach

to the alternative “response to intervention” model. The stat-

ute allows but does not require use of that 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 scien-

tific, research-based intervention”). Language in proposed

regulations would have authorized states to completely forbid

local educational agencies from using the severe discrepancy

17048 MICHAEL P. v. DEPARTMENT OF EDUCATION

model, but that language was deleted in response to concerns

that it exceeded the language of the statute. See 70 Fed. Reg.

35864 (June 21, 2005); Dixie Snow Huefner, The Final Regu-

lations for the Individuals with Disabilities Education

Improvement Act (IDEA ‘04), 217 Ed. Law Rep. 1, 8-9

(2007). The final regulations left the choice of whether to use

the severe discrepancy model or alternative procedures to the

discretion of local school districts. See 34 C.F.R.

§ 300.307(a)(2); Paul Secunda, “At Best An Inexact Science”:

Delimiting the Legal Contours of Specific Learning Disability

Eligibility Under IDEA, 36 J.L. & Educ. 155, 161 (2007)

(book review) (noting that the federal regulations allow local

school districts substantial latitude in choosing between

severe learning disability eligibility criteria).

The Hawaii DOE, though obviously an arm of state govern-

ment, is the local educational agency for Hawaii. It would

make far more sense for us to treat it that way. IDEA defines

“local educational agency” as a “public authority legally con-

stituted within a State for either administrative control or

direction of, or to perform a service function for public ele-

mentary schools or secondary schools in a city, county, town-

ship, or school district.” 20 U.S.C. § 1401(19)(A). Hawaii has

only one school district. The Hawaii DOE, together with the

state Board of Education, is responsible for making policy

decisions, performing administrative functions, and providing

educational services directly to students.1

1

It is possible, of course, to debate the merit of having a single school

district for the entire state. That subject has been discussed in Hawaii on

a recurring basis, but proposals to break the state into smaller local school

districts have not been enacted. The statewide district is consistent with

Hawaii’s approach to governance generally. The division of responsibility

and authority in Hawaii is unusually tilted toward state government versus

municipalities. Similarly, the only political subdivisions in Hawaii are four

county governments, each covering one or more entire islands. There are

no town or city governments covering smaller areas.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17049

According to the majority, the Hawaii DOE, simply

because it is a state agency, lacks the ability to decide for

itself how to determine eligibility criteria under IDEA. Every

other school district in the country has that authority, even

local districts with student populations that far exceed

Hawaii’s.2

The majority’s interpretation contradicts legislative intent

and the plain text of the statute and federal regulations. The

majority is right that 34 C.F.R. § 300.307(a)(1) prohibits

states from requiring local districts to use the severe discrep-

ancy model. But this prohibition was clearly intended to limit

what states may compel local educational agencies to do, in

the typical situation where local agencies are entities other

than the state. See H.R. Rep. 108-77, Sec. 204, at 107 (2003).

It does not limit how the state may define eligibility criteria

in the unique situation — applicable only to Hawaii — when

it is also acting in the capacity of a local educational agency.

Congress surely did not intend to deny the local school

authority in Hawaii the same authority that is expressly recog-

nized in all other school districts. The majority opinion gives

no logical reason for doing so.

Hawaii DOE did not “shirk its responsibilities as a state

educational agency,” as the majority opinion claims, at 17040.

It has not “required” that school districts under its supervision

use the severe discrepancy measure. Rather, it simply exer-

cised its authority under the IDEA to choose whether or not

2

In 2009, the Los Angeles Unified School District served approximately

688,000 K-12 students. New York City’s Department of Education pro-

vided education to 1.1 million students. Hawaii’s DOE served only about

180,000 students. See Los Angeles Unified School District, “Fingertip

Facts,” http://www.teachinla.com/Research/faq_notebook/2009-2010/

A1.pdf; New York City Department of Education, “About Us,”

http://schools.nyc.gov/AboutUs/default.htm; Hawaii Department of Edu-

cation, “About Us,” http://doe.k12.hi.us/about/index.htm (last visited Aug.

23, 2011).

17050 MICHAEL P. v. DEPARTMENT OF EDUCATION

it would itself use the severe discrepancy standard.3 As such,

the Hawaii regulations in place at the time of Courtney’s eli-

gibility hearing did not procedurally violate the IDEA.

The majority opinion’s effort to justify its conclusion in

response to this dissent is remarkably unpersuasive. The

majority suggests that if the State of Hawaii is treated as a

“local educational agency” under the regulation, then “any

state could effectively remove from local school districts the

discretionary authority to choose whether to use the severe

discrepancy standard or an alternative model by providing

direct educational services itself.” Majority opinion, at 17041

n. 10. So what? If any other state adopted Hawaii’s system of

a single statewide school district, there would, of course, be

no other “local school districts” within that state to exercise

any authority. But what does that establish? Hawaii’s state-

wide system existed long before the federal statute and regu-

lations were amended in 2004 and 2006, so it obviously

wasn’t set up to evade those enactments. And nobody can

seriously suggest that any state would abolish local school

districts and take on for itself the entire responsibility for pub-

lic education simply to evade the regulation in order to be

able to require the use of a severe discrepancy standard. Con-

gress very clearly did not prohibit a local agency from decid-

ing to use the severe discrepancy standard. Hawaii should

have the same freedom to decide for itself that all other school

districts in the country do.

The second justification offered in the same footnote of the

majority opinion is even emptier, if that’s possible. That Con-

gress did not make an exception for Hawaii is not a surprise

3

As the majority opinion notes, at 17028, in 2009 Hawaii decided to

move away from the severe discrepancy approach itself, by repealing the

regulations that called for use of that measure. But in doing so, Hawaii did

not thereby “conform its regulations to federal law,” as asserted by the

majority opinion, at 17030. It simply exercised its judgment as to what

measure to use in determining the existence of specific learning disabili-

ties, as federal law authorized it to do.

MICHAEL P. v. DEPARTMENT OF EDUCATION 17051

because the statute and regulation, read logically, do not

require an exception for Hawaii. The Hawaii Department of

Education is the “local educational agency” for Hawaii; it is

not some state overseer. The majority opinion justifies its

result only by assuming the correctness of that result. The

majority opinion fails to explain why Hawaii should be

treated differently, and its inability to do so underscores the

emptiness of its reasoning.

II. Courtney Was Not Erroneously Found Ineligible for

Special Education

Since the previous regulations were lawful, it should not be

necessary to consider Courtney’s eligibility under the

amended regulations. Nevertheless, under either version, the

hearing officer had a sufficient basis to conclude that Court-

ney did not demonstrate a specific learning disability.4

We must accord deference to the hearing officer’s findings

when they are “thorough and careful.” Seattle Sch. Dist., No.

1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996). We also accord

deference to the policy decisions of a school district when it

is acting within the boundaries of federal and state law. Union

Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 2004). It is

not the role of this court to substitute its “own notions of

sound educational policy for those of the school authorities

which they review.” See Wilson v. Marana Unified Sch. Dist.,

735 F.2d 1178, 1183 (9th Cir. 1984). Unfortunately, the

majority opinion wants to reach a different result so it does

exactly what we are not supposed to do.

The hearing officer laid out the factual basis for his deci-

4

Under the amended regulations, the child must demonstrate either (1)

inadequate achievement, or (2) a severe discrepancy between achievement

and ability; and either (1) insufficient progress, or (2) a pattern of

strengths or weaknesses in performance consistent with a “specific learn-

ing disability.” See Haw. Code R. § 8-60-41(a)(1)-(2).

17052 MICHAEL P. v. DEPARTMENT OF EDUCATION

sion and carefully considered all of the testimony and reports.

The officer discussed, in detail, instances where the testimony

of an expert or teacher contradicted the findings of Courtney’s

expert witnesses. His conclusions that Courtney did not show

a need for special education and services, Haw. Code R. § 8-

56-15, and that she did not qualify for special education under

the specific learning disability category, Haw. Code R. § 8-

56-26(b), were thorough and well-reasoned. The district court

concluded that the evidence in the record supported his find-

ings, and I agree.

The hearing officer did not err in finding that Courtney did

not demonstrate a discrepancy between her academic achieve-

ment and intellectual ability sufficient to constitute a specific

learning disability. Haw. Code R. § 8-56-26(b). The DOE

measured Courtney’s IQ using the Wechsler Intelligence

Scale for Children — Fourth Edition. Courtney’s full-scale IQ

was 82, which was in the low-average range. However, aca-

demic assessments conducted by the DOE in May 2006 indi-

cated that her reading skills were in the average range. On the

Woodcock-Johnson III Tests of Achievement (“WJ-III”), her

“basic reading” and “reading comprehension” scores were

average, and her “broad reading” score was “low average.”

On the Kaufman Test of Educational Achievement, Second

Edition (“KTEA-II”), her “reading” and “reading fluency”

scores were rated as average. The DOE’s psychological

examiner concluded that Courtney’s “sight vocabulary, pho-

nics, structural analysis skills, and reading comprehension

skills were all measured within the average range for her age”

on both tests. Her scores were equivalent to if not higher than

her IQ.

Courtney clearly struggled with reading, and she demon-

strated signs of dyslexia. But according to school psychologist

Dr. Abigail Royston, the evidence suggested that her dyslexia

was mild. The hearings officer, noting substantial evidence of

Courtney’s adequate reading performance, properly rejected

the conclusions of Courtney’s expert witnesses that her diffi-

MICHAEL P. v. DEPARTMENT OF EDUCATION 17053

culties with reading were severe enough to warrant special

education. The WJ-III and KTEA-II scores, and the observa-

tions of school psychologists and Courtney’s teachers, indi-

cated that Courtney was near-proficient in reading by her

fifth-grade year. Psychological examiner Cigdem Fernandez,

who administered the reading assessment tests, noted that

Courtney demonstrated “the ability to read high-frequency

words, sound out unfamiliar words, and comprehend con-

nected discourse while reading at an age appropriate level.”

After a November 9, 2006 evaluation of Courtney’s speech,

hearing, and language abilities, speech pathologist Hanna

Mendes concluded that Courtney’s overall language skills

were in the average range and that she has “adequate language

and articulation abilities to succeed in a regular education

classroom.” Courtney’s score on a state standardized reading

test in the spring of 2007 was 296, which was on the upper

end of the “approaches proficiency” range. Her score was

similar to the average score of fifth graders in her school and

fifth graders statewide.

The majority incorrectly suggests that Courtney’s strong

performance on the 2007 state reading test was the direct

result of her weekly reading tutoring with Dr. Ferguson. In

reality, Courtney was showing substantial progress before she

began her tutoring with Dr. Ferguson in January 2007. Burns

and Roe reading assessments conducted in August 2006 and

November 2006, at the beginning of Courtney’s fifth grade

year, indicated that she was reading at the fourth grade level.

According to Courtney’s teacher Liza Galindo, Courtney

showed substantial improvement on the November 2006

assessment. On that test, she “went back and reread for under-

standing and went back and corrected word substitutions,”

strategies Galindo had not seen before. By the spring of that

academic year, according to the state’s reading assessment,

Courtney was reading at a level near-equivalent to her peers.

By her sixth grade year, according to Galindo, Courtney had

continued to improve and was showing increased reading

comprehension and fluency.

17054 MICHAEL P. v. DEPARTMENT OF EDUCATION

The record does not compel the conclusion that Courtney’s

academic achievement was incommensurate with her intellec-

tual abilities, that her reading performance was substantially

below average, or that she required special education to per-

form adequately in school. Haw. Code R. § 8-56-15; § 8-60-

41(a)(1)-(2). The DOE determined that Courtney’s difficulties

with reading could be addressed through assistance in the reg-

ular classroom setting. Courtney’s improvement during her

fifth and sixth grade year attest to her ability to make progress

without special education. We must defer to the hearing offi-

cer’s appropriate conclusion that a given child did not demon-

strate eligibility for special education. See Union Sch. Dist.,

15 F.3d at 1524. We should do so here.

III. Conclusion

The judgment of the district court should be affirmed. It is

wrong for the majority to substitute its judgment for that of

the hearing officer. It is even more wrong for the majority to

treat Hawaii as a second-class state, unable to make for itself

a decision that every other school district in the country is

permitted to make. I dissent.