E. M. v. Pajaro Valley Unified School D

Filing

FILED OPINION (JOHN T. NOONAN, RICHARD A. PAEZ and CARLOS T. BEA) For the reasons stated, the district court s decision is AFFIRMED with respect to E.M. s claim that he qualified for special education and related services as a child with ADD/ADHD and REVERSED and REMANDED for a determination whether, during all relevant times, PVUSD met its affirmative obligation to locate, evaluate, and identify E.M. as a child with an other health impairment or a specific learning disability related to his auditory processing disorder. Each party shall bear its own costs on appeal. Judge: JTN Authoring, Judge: CTB Dissenting. FILED AND ENTERED JUDGMENT. [7819671]

Case: 09-17084 07/14/2011 Page: 1 of 20

ID: 7819671 DktEntry: 31-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
E. M., a minor, by and through
his parents, E.M. and E.M.,
Plaintiff-Appellant,
v.
PAJARO VALLEY UNIFIED SCHOOL
DISTRICT OFFICE OF ADMINISTRATIVE
HEARINGS,
Defendant-Appellee.




No. 09-17084
D.C. No.
5:06-cv-04694-JF
OPINION



Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
November 5, 2010—San Francisco, California
Filed July 14, 2011
Before: John T. Noonan, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Noonan;
Dissent by Judge Bea

9577

Case: 09-17084 07/14/2011 Page: 2 of 20

9580

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

COUNSEL
Mandy G. Leigh, Jay T. Jambeck (of counsel), Sarah J. Fairchild, Leigh Law Group, San Francisco, California, for
plaintiff-appellant E.M.
Laurie E. Reynolds, Kimberly A. Smith, Fagen, Friedman &
Fulfrost, Oakland, California, for defendant-appellee Pajaro
Valley Unified School District.

OPINION
NOONAN, Circuit Judge:
E.M. is a bilingual student in Pajaro Valley Unified School
District (“PVUSD”), California. He has performed poorly in
school, although by most measures, he is of average to aboveaverage intellectual ability. E.M.’s parents brought this action
to challenge PVUSD’s determination that E.M. did not qualify for special education under the Individuals with Disabilities Education Act (“IDEA”). The Special Education Division
of the California Office of Administrative Hearings (“OAH”)
upheld PVUSD’s assessment. The district court, in turn,
upheld the OAH’s decision.

Case: 09-17084 07/14/2011 Page: 3 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9581

This appeal comes to us after careful consideration by an
able district judge. We disagree with his assessment only to
the extent that we find one claim not addressed and one report
not measured for its relevance. We affirm the judgment of the
district court in part, reverse in part, and remand for further
proceedings.
FACTS
At all relevant times, E.M. was a student in PVUSD. In the
third and fourth grades, he struggled in school. His teachers
identified attention and homework completion as problem
areas. They used interventions designed to help him succeed
in a regular educational program. They had limited success.
E.M. was designated as “at risk for retention.” However, his
teachers did not perceive him as a candidate for special education.
The summer before E.M. entered fifth grade, his parents
brought him to a psychologist, Roslyn Wright, to have him
evaluated for a learning disability. Dr. Wright assessed E.M.
using a test of intellectual ability, the Wechsler Intelligence
Scale for Children, Third Edition (“WISC-III”), and a battery
of achievement tests, the Woodcock-Johnson Tests of
Achievement-III (“WJ-III”). Based on the test results, Dr.
Wright diagnosed E.M. with a learning disability.
E.M.’s parents then requested PVUSD to assess their son
for eligibility for special education and related services under
IDEA. PVUSD’s psychologist administered to E.M. the Kaufman Assessment Battery for Children (“K-ABC”), a comprehensive intelligence test, and the WJ-III achievement tests.
Based on this assessment, PVUSD determined that E.M. was
not eligible for special education.
At the request of E.M.’s parents, PVUSD reassessed E.M.
in May of his fifth-grade year and reached essentially the
same result as it did in its first assessment. PVUSD performed

Case: 09-17084 07/14/2011 Page: 4 of 20

9582

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

a third assessment in June, resulting in recommendations for
additional interventions in the general education classroom.
At the end of fifth grade, PVUSD again designated E.M. as
at risk for retention.
In November 2005, in the first half of E.M.’s sixth-grade
year, E.M.’s parents obtained an auditory evaluation by Dr.
Ruth Kaspar. She concluded that E.M. had an auditory processing disorder.
PROCEEDINGS
E.M.’s parents disagreed with PVUSD’s assessments and,
on December 5, 2005, E.M. filed a complaint with the Special
Education Division of the OAH. The OAH held a six-day due
process hearing and issued a decision in favor of PVUSD on
all issues. E.M. appealed the decision to the district court,
where the parties filed cross-motions for summary judgment.
In the district court, E.M. moved to supplement the record
with evidence obtained after the conclusion of the OAH hearing. This evidence included a report by Cheryl Jacques, a clinical psychologist, who reviewed E.M.’s records and
conducted a battery of tests. Dr. Jacques tested E.M.’s intelligence using the WISC-IV, an updated version of the WISCIII test that Dr. Wright used. Based on her assessment and
review of the records relating to E.M., Dr. Jacques concluded
that E.M. had a “specific learning disability” as defined under
IDEA. See 20 U.S.C. § 1401(30). She also reviewed the data
from prior assessments and concluded that it was “puzzling”
that PVUSD did not find that E.M. qualified for special education in 2004. The district court denied E.M.’s request to
supplement the record with Dr. Jacques’s report.
The district court initially denied PVUSD’s motion for
summary judgment and remanded E.M.’s case to the OAH for
further written analysis as to some of the prior conclusions of
the administrative law judge (“ALJ”). In the meantime,

Case: 09-17084 07/14/2011 Page: 5 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9583

PVUSD re-assessed E.M. and, on February 22, 2008, found
him eligible for special education as of that date. PVUSD did
not admit that it had previously failed to locate, evaluate, and
identify E.M. as a student with a disability.
The OAH returned E.M.’s case to the district court, where
E.M. argued that he was entitled to compensatory educational
services, among other forms of relief, based on PVUSD’s failure to meet its obligations to him under IDEA prior to its February 22, 2008 reassessment. The district court found that the
ALJ’s amended opinion provided a sufficient basis for deciding the parties’ cross-motions for summary judgment. It
granted PVUSD’s motion.
This appeal followed.
ANALYSIS
We have jurisdiction to review the district court’s grant of
summary judgment under 28 U.S.C. § 1291. We review de
novo an award of summary judgment. Parents of Student W.
v. Puyallup Sch. Dist., 31 F.3d 1489, 1494 (9th Cir. 1994).
Evidentiary rulings are reviewed for abuse of discretion.
United States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th
Cir. 2009).
E.M. claims that the district court erred in concluding that
PVUSD met its affirmative obligation to locate, evaluate, and
identify him as a student with a disability (its “child find”
obligation). See 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R.
§ 300.111(a)(1)(ii); Cal. Educ. Code §§ 56300, 56301. In particular, E.M. argues that PVUSD did not properly evaluate
him and identify him as a student eligible for special education and related services based on his specific learning disability and on his “other health impairments” of Attention
Deficit Disorder/Attention Deficit Hyperactivity Disorder
(“ADD/ADHD”) and auditory processing disorder. See 20
U.S.C. § 1401(3)(A)(i); 20 U.S.C. § 1401(30). E.M. claims

Case: 09-17084 07/14/2011 Page: 6 of 20

9584

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

entitlement to additional educational services to compensate
him for PVUSD’s failure to meet its obligations to him under
IDEA. See Puyallup, 31 F.3d at 1496.
I.
We first address E.M.’s eligibility for special education as
a child with a specific learning disability. Under California
law in effect during the relevant period, a child is found to
have a specific learning disability when it is determined that
(1) a “severe discrepancy” exists between the child’s intellectual ability and achievement in one or more of seven designated academic areas; (2) “[t]he discrepancy is due to a
disorder in one or more of the basic psychological processes
and is not the result of environmental, cultural, or economic
disadvantages”; and (3) “[t]he discrepancy cannot be corrected through other regular or categorical services offered
within the regular instructional program.” Cal. Educ. Code
§ 56337 (2005). The parties dispute whether E.M. met the
first and second criteria.
E.M. argues that the district court improperly concluded
that he failed to establish that he suffered from a “disorder in
a basic psychological process.” We agree. The only person
who formally assessed E.M. for an auditory processing disorder was Dr. Ruth Kaspar. Dr. Kaspar, an audiologist, diagnosed E.M. with an auditory processing disorder. The school
district hired Dr. Jody Winzelberg, also an audiologist, as an
expert witness. Based on a review of Dr. Kaspar’s report, Dr.
Winzelberg testified that she would characterize E.M.’s test
results as showing “some weakness in the auditory system,”
and that she could not rule out an auditory processing disorder
diagnosis.
E.M. also argues that the district court erred in concluding
that he failed to show that there was a “severe discrepancy”
between his intellectual ability and achievement scores. In
determining whether a severe discrepancy existed, PVUSD

Case: 09-17084 07/14/2011 Page: 7 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9585

used E.M.’s performance score of 104 on the WISC-III test
administered by Dr. Wright rather than E.M’s mental processing composite score of 111 on the K-ABC test that PVUSD
itself administered. PVUSD does not dispute that had it used
the K-ABC score, it would have found a severe discrepancy.
Instead, PVUSD argues that it made a reasonable determination that E.M. did not show a severe discrepancy based on all
available material on E.M. E.M. contends that PVUSD impermissibly considered the fact that he is bilingual and “cherry
picked” among his test scores to reach a predetermined result.
[1] This court has held that school districts have discretion
in selecting the diagnostic tests they use to determine special
education eligibility. See Ford v. Long Beach Unified Sch.
Dist., 291 F.3d 1086, 1088-89 (9th Cir. 2002) (holding that a
school district need not use any traditional IQ test to assess
for specific learning disability). E.M.’s case presents a related,
but different, question: does IDEA permit a school district to
exclude the valid results of a test the district itself selected
and administered? This question touches on a fundamental
tension in special education law — that between ensuring that
all disabled children have access to educational opportunity
and ensuring that non-disabled children are not improperly
identified as disabled. This tension is particularly salient for
minority students, who historically have been over-identified
as disabled and disproportionally placed in segregated educational settings, due in part to biased IQ tests. See, e.g., Larry
P. by Lucille P. v. Riles, 793 F.2d 969 (9th Cir. 1984); Diana
v. Cal. Bd. of Educ., No. C-70-37 RFP (N.D. Cal. 1970, 1973)
(resolved through a stipulated settlement). IDEA mandates
that states implement safeguards aimed at ensuring that testing procedures are not racially or culturally discriminatory,
and that “no single procedure shall be the sole criterion for
determining an appropriate educational program for a child.”
20 U.S.C. § 1412(a)(6)(B). In line with this requirement, California Code of Regulations, title 5, § 3030(j) mandates that
school districts consider “all relevant material which is available on the pupil” and not use any “single score or product of

Case: 09-17084 07/14/2011 Page: 8 of 20

9586

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

scores, test or procedure” in determining eligibility based on
a specific learning disability. Where a comparison of IQ
scores and achievement scores yields an ambiguous result, the
application of a blanket rule barring a school district from
considering other factors in determining whether a child has
a specific learning disability would upset the balance IDEA
attempts to achieve. Accordingly, we hold that a school district, considering all relevant material available on a pupil,
must make a reasonable choice between valid but conflicting
test results in determining whether a “severe discrepancy”
exists. See Cal. Code Regs., tit. 5, § 3030(j).
[2] Before determining whether PVUSD’s choice among
test scores was reasonable, it is necessary to address the parties’ dispute over whether the district court properly excluded
the assessment of E.M. conducted by Dr. Jacques. IDEA mandates that, on review of an administrative decision, the district
court “shall hear additional evidence at the request of a
party.” 20 U.S.C. § 1415(i)(2)(C)(ii). But not all evidence is
“additional evidence.” In Ojai Unified Sch. Dist. v. Jackson,
we held that a district court need not consider evidence that
simply repeats or embellishes evidence taken at the administrative hearing, nor should it admit evidence that changes
“ ‘the character of the hearing from one of review to a trial de
novo.’ ” 4 F.3d 1467, 1473 (9th Cir. 1993), cert. denied, 513
U.S. 825 (1994) (quoting Town of Burlington v. Dep’t of
Educ., 736 F.2d 773, 791 (1st Cir. 1984), aff’d sub nom. Sch.
Comm. v. Dep’t of Educ., 471 U.S. 359 (1985)). Adopting the
First Circuit’s rule in Town of Burlington, we held that “additional evidence” includes, inter alia, “evidence concerning relevant events occurring subsequent to the administrative
hearing.” Ojai, 4 F.3d at 1473. Applying this rule, we determined that the district court properly admitted evidence
related to an alternative educational placement for a disabled
child. Id. The placement first became available after the
child’s administrative hearing. Id. Similarly, in Adams v. Oregon, we observed that after-acquired evidence “may shed
light” on the objective reasonableness of a school district’s

Case: 09-17084 07/14/2011 Page: 9 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9587

actions at the time the school district rendered its decision.
195 F.3d 1141, 1149 (9th Cir. 1999). In summary, under our
precedent, evidence that is non-cumulative, relevant, and otherwise admissible constitutes “additional evidence” that the
district court “shall” consider pursuant to 20 U.S.C.
§ 1415(i)(2)(C)(ii).
IDEA’s requirement that courts consider additional evidence is grounded in the somewhat unusual nature of judicial
review under the Act. In Ojai, we observed that “judicial
review in IDEA cases differs substantially from judicial
review of other agency actions, in which courts generally are
confined to the administrative record and are held to a highly
deferential standard of review.” 4 F.3d at 1471. Under IDEA,
“the federal court has a continuing obligation to ensure that
the state standards themselves and as applied are not below
the federal minimums . . . . [which] persists despite any state
administrative rulings on federal law or state recodifications
of federal law.” Town of Burlington, 736 F.2d at 792. The
requirement that federal courts consider additional evidence
when evaluating state administrative rulings implements the
intent that federal courts enforce the minimum federal standards IDEA sets out.
It is argued that our reading of 20 U.S.C.
§ 1415(i)(2)(C)(ii) conflicts with the Fourth Circuit’s holding
in Schaffer v. Weast, 554 F.3d 470, 476 (4th Cir. 2009). But
in Schaffer, the contention that the district court violated
IDEA’s mandate that it hear additional evidence failed for the
“straightforward reason” that the district court in fact had
admitted the evidence. Id. at 475. It simply concluded that the
evidence should not “determine the merits of the case.” Id.
Here, the district court did not admit Dr. Jacques’s report and
did not consider it in deciding the merits of E.M.’s case.
It is also argued that our opinion is inconsistent with the
Eighth Circuit’s holding in West Platte R-II School District v.
Wilson, 439 F.3d 782 (8th Cir. 2006). In West Platte, the court

Case: 09-17084 07/14/2011 Page: 10 of 20

9588

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

upheld the district court’s exclusion of evidence of a child’s
progress subsequent to the administrative hearing because the
proponent of the evidence — the school district — failed to
“provide a solid justification for supplementing the record.”
Id. at 785. The court in West Platte did not cite 20 U.S.C.
§ 1415(i)(2)(C)(ii), and the court appears not to have
accounted for the unusual nature of judicial review in IDEA
cases. See Ojai, 4 F.3d at 1471. Moreover, West Platte’s
unelaborated requirement that the school district offer a “solid
justification” for the admission of after-acquired evidence
does not appear to conflict with our reading of 20 U.S.C.
§ 1415(i)(2)(C)(ii). The determinations of a state agency are
entitled to greater deference where, as in West Platte, the
agency finds that one of its school systems has not complied
with the state’s implementation of the IDEA. See Town of
Burlington, 736 F.2d at 792.
Our reading of 20 U.S.C. § 1415(i)(2)(C)(ii) finds support
in Susan N. v. Wilson School District, 70 F.3d 751, 760 (3d
Cir. 1995), in which the Third Circuit ruled that a district
court “must exercise particularized discretion in its rulings so
that it will consider evidence relevant, non-cumulative and
useful in determining whether Congress’ goal has been
reached for the child involved.” The court concluded that the
district court lacked discretion to summarily exclude evidence
that was not available at the time of the administrative hearing
and was relevant to the district court’s assessment of the reasonableness of the school district’s decision at the time the
decision was made. Id. at 758.
Similarly, in Town of Burlington, the First Circuit declined
to adopt a rule disallowing testimony by “all who did, or
could have, testified [at] the administrative hearing.” 736 F.2d
at 790. The court commented on the particular usefulness of
expert testimony to the district court in “illuminating the
nature of the controversy” and “bringing the court up to date
on the child’s progress from the time of the hearing to the
trial.” Id. at 791.

Case: 09-17084 07/14/2011 Page: 11 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9589

[3] We hold that the district court applied an incorrect
standard for admission of after-acquired evidence in excluding Dr. Jacques’s report. The district court excluded Dr.
Jacques’s report as not “necessary to evaluate the ALJ’s
determination.” The proper inquiry was whether the report
was relevant, non-cumulative, and otherwise admissible.
[4] Dr. Jacques’s report shows that E.M. had a legally significant discrepancy between ability and achievement in 2007.
This showing may make it more likely that a legally significant discrepancy was present in 2004. Moreover, Dr. Jacques
observed that PVUSD would have found that a severe discrepancy existed in 2004 had it used either the K-ABC nonverbal score of 113 or the K-ABC mental processing
composite score of 111. Her report concluded that “it is puzzling that the district did not find [E.M.] eligible for special
education in 2004.”
It is true that we have said that “actions of the school systems . . . cannot be judged exclusively in hindsight.” Adams,
195 F.3d at 1149-50 (quoting Fuhrmann v. E. Hannover Bd.
of Educ., 993 F.2d 1031, 1041 (3d Cir. 1993)). But that exclusive use of hindsight is forbidden does not preclude consideration of subsequent events. Id. The clear implication of
permitting some hindsight is that additional data, discovered
late in the evaluation process, may provide significant insight
into the child’s condition, and the reasonableness of the
school district’s action, at the earlier date.
[5] It might be thought that the more exacting test, developed in 2007, is not relevant to 2004: the 2007 test could not
have been used in 2004. The school district cannot be faulted
for failing to use a test that was not available in 2004. The
intent of 20 U.S.C. § 1415(i)(2)(C)(ii), however, is that the
school district’s 2004 actions be reviewed with the help available in 2007.
On remand, the district court should consider whether Dr.
Jacques’s report is relevant to the determination whether

Case: 09-17084 07/14/2011 Page: 12 of 20

9590

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

PVUSD met its obligations to E.M. under the IDEA and is
otherwise admissible.
E.M. also argues that the district court should have considered PVUSD’s 2008 assessment finding him eligible for special education and related services on the basis of his specific
learning disability. IDEA provides that the district court “shall
receive the records of the administrative proceedings.” 20
U.S.C. § 1415(i)(2)(C)(i). E.M. asserts that the 2008 assessment was submitted to the OAH after the district court
remanded his case. PVUSD does not dispute this assertion. It
is unclear to us why the assessment does not appear in the district court’s record. The district court should consider the
assessment on remand. See M.L. v. Fed. Way Sch. Dist., 394
F.3d 634, 641 n.8 (9th Cir. 2005).
II.
[6] E.M. asserts that the district court should have considered whether his auditory processing disorder diagnosis qualified him for special education as a child with an “other health
impairment[ ].” See 20 U.S.C. § 1401(3)(A)(i). It is argued
that E.M. failed to raise this claim. The argument overlooks
the record. In E.M.’s complaint to the OAH, he requested
“[t]o be found eligible for special education and related services under the IDEA . . . as a child having an other health
impairment due to his auditory processing deficits.” E.M.’s
complaint to the district court alleged that “testimonial and
documentary evidence established a strong basis for suspecting that E.M. can qualify for special education under other
[than specific learning disability] eligibility categories.” This
evidence included Dr. Kaspar’s evaluation diagnosing E.M.
with an auditory processing disorder. The OAH apparently
ignored E.M.’s other health impairment claim and the district
court did not consider it. In a brief E.M. submitted to the district court after the OAH amended its first decision, E.M.
asserted that the OAH erred in concluding that PVUSD properly assessed him in “the suspected area of disability of audi-

Case: 09-17084 07/14/2011 Page: 13 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9591

tory processing.” In his opening brief to this court, E.M.
argued that he qualified for special education based on his
auditory processing disorder. In short, E.M. had asserted his
auditory processing disorder claim no less than four times —
to the OAH; twice to the district court; and in his opening
brief to us. Both parties addressed the issue at oral argument.
See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992).
E.M. did not waive his other health impairment claim.
[7] The regulations define “other health impairment” as
“having limited strength, vitality, or alertness, including a
heightened alertness to environmental stimuli, that results in
limited alertness with respect to the educational environment.” 34 C.F.R. § 300.8(c)(9). The impairment must be
attributable to “chronic or acute health problems” and must
have an adverse effect on the child’s educational performance. Id. The regulations contain a non-exhaustive list of
chronic and acute health problems, which does not include
auditory processing disorder. See id. On remand, the district
court should address whether an auditory processing disorder
may qualify as an other health impairment, and if so whether
PVUSD met its obligation to assess E.M. and identify him as
a child with an other health impairment.
III.
[8] E.M. contends that the district court erred in holding
that the ALJ properly struck E.M.’s allegations that PVUSD
failed to assess him for ADD/ADHD. The party requesting a
due process hearing before the ALJ in an IDEA case may not
raise issues at the hearing that were not included in its complaint unless the other party consents. Cal. Educ. Code
§ 56502(i) (2005). The district court correctly concluded that
E.M. did not include an ADD/ADHD claim in his complaint
to the ALJ. Accordingly, the district court did not err in
upholding the ALJ’s decision to strike E.M.’s ADD/ADHD
allegations.

Case: 09-17084 07/14/2011 Page: 14 of 20

9592

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

CONCLUSION
For the reasons stated, the district court’s decision is
AFFIRMED with respect to E.M.’s claim that he qualified for
special education and related services as a child with
ADD/ADHD and REVERSED and REMANDED for a determination whether, during all relevant times, PVUSD met its
affirmative obligation to locate, evaluate, and identify E.M. as
a child with an other health impairment or a specific learning
disability related to his auditory processing disorder.
Each party shall bear its own costs on appeal.

BEA, Circuit Judge, dissenting:
I respectfully dissent. The district court did not err when it
failed to admit the 2007 Jacques report, which could not possibly have had any relevance to the school district’s 2004
evaluation of E.M. Nor did the district court err by “failing”
to consider a claim with which neither we nor the district
court were presented: that E.M.’s auditory processing disorder
qualified him for special education under the “other health
impairment” provision of the IDEA. See 20 U.S.C.
§ 1401(3)(A). In my view, the majority reverses the district
court for its failure to admit—or “adequately” to consider—
evidence and claims which were either irrelevant, waived, or
improperly presented.
The majority reverses and remands based on two perceived
“failings” by the district court. First, the majority faults the
district court’s discretionary determination that a 2007 report
by Cheryl Jacques did not qualify as relevant “additional evidence.” 20 U.S.C. § 1415(e)(2). Second, the majority holds
that the district court was required to consider (apparently sua
sponte) E.M.’s contention—raised for the first time at oral
argument before this court—that his auditory processing dis-

Case: 09-17084 07/14/2011 Page: 15 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9593

order qualified him for special education as a child with an
“other health impairment.” 20 U.S.C. § 1401(3)(A).
As to the Jacques report, the relevant statutory requirement
provides that the district court “shall receive the records of the
administrative proceedings, shall hear additional evidence at
the request of a party, and . . . shall grant such relief as the
court determines is appropriate.” 20 U.S.C. § 1415(e)(2).
Despite the seemingly mandatory language of the statute, “the
district court has discretion to determine what qualifies as
‘additional evidence.’ ” Ojai Unified School Dist. v. Jackson,
4 F.3d 1467, 1473 (9th Cir. 1993). In the district court’s discretion, additional evidence “might include . . . evidence concerning relevant events occurring subsequent to the
administrative hearing.” Id. at 1473 (emphasis added). However, “actions of the school systems . . . cannot be judged
exclusively in hindsight,” and a school district’s actions must
be judged as “a snapshot, not a retrospective.” Adams by &
Through Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir.
1993).
In light of these standards, the district court correctly determined that the Jacques report was not “relevant” additional
evidence. Throughout this litigation, E.M. has contended that
the school district erred in October 2004 when it determined
E.M. was ineligible for special education. E.M. seeks monetary compensation for that claimed 2004 error.1 But Dr.
1
E.M. contends that this court may award monetary “remedies” under
the IDEA. However,”money damages are not available under the IDEA,”
Robb v. Bethel Sch. Dist. #403, 308 F.3d 1047, 1049 (9th Cir. 2002), and
E.M. does not seek reimbursement of private schooling costs under 20
U.S.C. § 1412(a)(10)(C), because E.M. never enrolled at a private institution. Thus, the only monetary remedies E.M. can obtain are attorneys’ fees
and costs, which may only be awarded to a “prevailing party.” 20 U.S.C.
§ 1415(i)(3)(B)(i)(I). E.M. can prevail only if the school district erred in
its 2004 evaluation. As explained above, I do not think the district court
erred in ruling in favor of the school district; E.M. did not prevail. He
should take nothing.

Case: 09-17084 07/14/2011 Page: 16 of 20

9594

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

Jacques’s report relied upon a test performed in 2007, and one
of the key assessment tools she used in performing the 2007
evaluation—the Woodcock-Johnson III 2005 Normative
Update—had not even been published in 2004. E.M.’s 2007
scores on a test which the school district could not possibly
have administered in 2004 is irrelevant to the question
whether the school district erred in its 2004 determination.
The majority nevertheless contends that Dr. Jacques’s
report—which showed a “legally significant discrepancy
between ability and achievement in 2007”—is potentially relevant because it “may make it more likely that a legally significant discrepancy was present in 2004.” As an initial
matter, the Jacques report itself undermines that conclusion.
Dr. Jacques stated that discrepancies between her evaluation
of E.M. and his previous assessments were likely attributable
to the fact that the “updated tests are harder” and the “increased academic load in middle school . . . contributed to a
widening gap in his intelligence and his achievement levels.”
(emphasis added). In 2004, E.M. was not yet in middle
school. He was in the fourth grade. Dr. Jacques’s report thus
makes it clear that E.M.’s disability was not as clearly noticeable in 2004 as it was in 2007.
Yet even if the majority is correct and the 2007 Jacques
report made it more likely that E.M. in fact had a learning disability in 2004, the issue in this case is not the apodictic truth
of E.M.’s condition when the school district first assessed
him. Rather, as the majority itself holds, the issue is “whether
[the school district’s] choice among test scores was reasonable.” Maj. Op. at 9586. The reasonableness of the school district’s choice of test scores in 2004 could not have been
affected by a test administered in 2007 using assessment tools
which were unknown in 2004. Thus, in light of our previous
admonitions that a school district’s actions cannot be judged

Case: 09-17084 07/14/2011 Page: 17 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9595

in “hindsight,” the district court was well within its discretion
when it declined to consider the Jacques report.2
I am therefore puzzled by the majority’s conclusion that the
district court did not weigh the Jacques report’s relevance,
and the majority’s decision to remand to the district court so
the district court may determine such relevance anew. The
district court’s order on E.M.’s motion to supplement the
record reads:
E.M. also argues his recent assessment . . . should be
admitted because this evidence will shed light on the
correctness of the ALJ’s determination. Defendants
argue that this evidence is not relevant to the
Court’s analysis of the diagnosis during the relevant
time period. . . . The Ninth Circuit has held that educational programs are reviewed not in hindsight but
in light of the information available at the time the
program was developed. Adams v. Oregon, 195 F.3d
1141, 1149 (9th Cir. 1993 (“Actions of the school
system cannot . . . be judged exclusively in hindsight.”). Because the Court concludes that the afteracquired evidence E.M. seeks to introduce is not
necessary to evaluate the ALJ’s determination, it will
not be admitted.
Emphasis added.
It is clear from this order that the district court did weigh
the relevance of the Jacques report. The district court credited
the defendants’ contention that the Jacques report—written
2

It is worth noting that E.M. is not challenging a continued failure by
the school district to diagnose him for special education in light of the
Jacques report. Indeed, only two months after Dr. Jacques completed her
assessment, the school district reassessed E.M. and found that he was eligible for such services. E.M. seeks monetary compensation based on the
school district’s alleged error in its 2004 evaluation.

Case: 09-17084 07/14/2011 Page: 18 of 20

9596

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

three years after the school district’s purportedly erroneous
diagnosis—was not “relevant to the Court’s analysis” of that
error during the “relevant time period.” In so doing, the district court cited our decision in Adams, which holds that as a
matter of law, a school district’s actions cannot be judged
exclusively in hindsight. In determining that the district court
failed to consider the Jacques report’s relevance, the majority
plucks out of context the district court’s determination that the
Jacques report was “not necessary to evaluate the ALJ’s
determination,” and remands because it apparently finds fault
in this language. But it is clear from the order that the district
court so found because the Jacques report is irrelevant to the
issue whether the school district erred in 2004.3 I would not
remand to the district court—wasting time and resources—so
that the district court can again make a determination it has
already made.
The majority further holds that the district court erred when
it failed to consider whether a purported auditory processing
disorder qualified E.M. for special education as a child with
an “other health impairment.” See 20 U.S.C. § 1401(3)(A).
But we may not address the question whether E.M.’s auditory
processing disorder qualified him for special education as a
standalone “other health impairment,” because E.M. did not
raise this argument before the district court, nor in his opening
brief before this court. This court reviews only issues which
“are argued specifically and distinctly in a party’s opening
brief.” Brownfield v. City of Takima, 612 F.3d 1140, 1149 n.4
(9th Cir. 2010). Here—contrary to the majority’s misleading
contention that E.M. argued this issue in his opening brief,
E.M. did not submit his auditory-processing-disorder-as-another-health-impairment claim in his opening brief at all.4
3

Moreover, the phrase “necessary to evaluate” is synonymous with “relevant.” Evidence is relevant if it “moves the needle” towards one determination or another; if it “moves the needle,” it must be evaluated. It follows
that, if irrelevant, it need not be evaluated.
4
The majority further notes that “[B]oth parties addressed the issue at
oral argument.” Maj. Op. at 9591. This is true, but only because E.M.’s

Case: 09-17084 07/14/2011 Page: 19 of 20

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

9597

Thus, as an initial matter, I would not reach the question
whether the district court failed to consider E.M.’s other
health impairment claim.
Yet even were we to disregard Ninth Circuit precedent and
consider such a claim, E.M. also did not raise an auditoryprocessing-disorder-as-an-other-health-impairment claim in
the district court. The majority misleadingly contends that
because 1) E.M.’s complaint to the district court alleged that
“testimonial and documentary evidence established a strong
basis for suspecting that E.M. can qualify for special education under other [than specific learning disability] eligibility
categories,” and 2) there was evidence that Dr. Kaspar diagnosed E.M. with an auditory processing disorder, the district
court should have pieced these two fragments together to
create an auditory-processing-disorder-as-an-other-healthimpairment claim on E.M.’s behalf. But throughout this litigation, E.M. contended that Dr. Kaspar’s diagnosis was relevant
only for his specific learning disability claim.5 E.M. never
contended before the district court—nor before this court—
that Dr. Kaspar’s diagnosis should have qualified him for specounsel raised the issue for the first time at oral argument, and devoted the
bulk of her oral argument to this claim. Indeed, during oral argument,
counsel for the school district noted that she would address the arguments
raised by E.M.’s counsel at opening argument, but further noted that this
was one of many “issues . . . which we consider new.” I am aware of no
authority which holds that a waived issue somehow ceases to be waived
if an attorney ambushes a party-opponent by raising the issue for the first
time at oral argument, and the party-opponent is thus forced to respond.
5
A specific learning disability requires that 1) a child has a “severe statistical discrepancy” between “ability” and “achievement” test scores, and
2) that discrepancy be caused by a disorder in a “basic psychological process.” See 20 U.S.C. § 1401(30); Cal. Educ. Code § 56337. A child has an
other health impairment when he has “limited strength, vitality, or alertness . . . [that] is due to chronic or acute health problems.” 20 U.S.C.
§ 1401(30); 34 C.F.R. § 300.8(c)(9). Throughout this litigation, E.M. has
contended that his alleged auditory processing disorder qualifies as a “disorder in a basic psychological process” for the purposes of a specific
learning disability.

Case: 09-17084 07/14/2011 Page: 20 of 20

9598

ID: 7819671 DktEntry: 31-1

E. M. v. PAJARO VALLEY UNIFIED SCHOOL

cial education as an other health impairment. Nor was the district court required to piece together vague and isolated
phrases from E.M.’s complaint to create an auditoryprocessing-disorder-as-an-other-health-impairment claim on
E.M.’s behalf. “Judges are not like pigs, hunting for truffles
buried in briefs.” Greenwood v. FAA, 28 F.3d 971, 977 (9th
Cir. 1994). I am puzzled as to how this court can reverse the
district court for its failure to consider a claim with which it
was never presented.
I would affirm the district court’s decision in its entirety.