MR. AND MRS. DOE, Plaintiffs, Appellants,
CAPE ELIZABETH SCHOOL DISTRICT, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Jon D. Levy, U.S. District Judge]
Richard O'Meara, with whom Kaitlyn M. Wright and Murray,
Plumb & Murray were on brief, for appellant.
R. Herlan, with whom Erin R. Feltes and Drummond Woodsum
& MacMahon were on brief, for appellee.
Phalon and Gibbons Stevens Law Office on brief for amici
curiae International Dyslexia Association et al.
Saideman, Law Office of Ellen Saideman, Selene
Almazan-Altobelli, and Council of Parent Attorneys and
Advocates on brief for amicus curiae Council of Parent
Attorneys and Advocates.
Barron, Selya, and Lipez, Circuit Judges.
case raises an important issue regarding eligibility for
special education under the Individuals with Disabilities
Education Act ("IDEA"). We are asked, in essence,
to decide whether a child with a strong academic record may
still be found to have a learning disability and a need for
special education, thereby entitling her to special education
and related services.
Mr. and Mrs. Doe ("the Does") appeal the decision
of the district court, which affirmed the administrative
hearing officer's determination that their child, Jane
Doe ("Jane"), is no longer eligible to receive
special education under the IDEA despite allegedly suffering
from a reading fluency deficit. The Does argue that the
district court erred as a matter of law in its eligibility
inquiry because (i) the court considered Jane's overall
academic achievement, when her deficiency in reading fluency
is sufficient by itself to support eligibility, and (ii) the
district court did not make an independent judgment as to
Jane's reading fluency deficit, instead deferring to the
hearing officer's factual findings, while summarily
dismissing the additional evidence that the Does submitted.
carefully considered the claims, we conclude that, while
Jane's overall academic performance could potentially be
relevant in determining whether she has a reading fluency
deficit, the district court erred in relying on such evidence
without regard to how it reflects her reading fluency skills.
Additionally, we find that the court failed to make an
independent judgment as to the additional evidence submitted
by the Does and afforded excessive deference to the hearing
officer's determinations in weighing the relevant reading
fluency measures. Hence, we vacate and remand the case.
clarify, however, that even if the district court finds on
remand that Jane has a reading fluency deficit, she would not
be eligible for special education unless she also
"needs" special education. In assessing that need,
grades and standardized test results are not categorically
barred from consideration any more than they are
categorically barred under the first prong inquiry, so long
as they were determined to be relevant in discerning a
factual and procedural history of this case is informed by
the statutory framework governing the eligibility inquiry and
judicial review of administrative decisions. We thus preface
our discussion of the facts with a brief overview of the
relevant statutory regime.
IDEA was enacted to provide "free appropriate public
education" to children with disabilities. 20 U.S.C.
§ 1400(d)(1)(A). Pursuant to this objective, the statute
mandates that states receiving federal funds under the
statute provide "special education and related
services" to students who qualify as children with
disabilities. Id. §§ 1401(3)(A)(ii),
1412(a)(1)(A). All determinations regarding eligibility for
special education are hence governed, in the first instance,
by the definition of a "child with a disability."
See id. § 1401(3)(A). A "child with a
disability" is a child:
(i) with intellectual disabilities, hearing impairments
(including deafness), speech or language impairments, visual
impairments (including blindness), serious emotional
disturbance (referred to in this chapter as "emotional
disturbance"), orthopedic impairments, autism, traumatic
brain injury, other health impairments, or specific learning
(ii) who, by reason thereof, needs special education and
eligibility determinations proceed in two steps. The first
prong determines the existence of a disorder -- here, a
specific learning disability ("SLD"). Id.
§ 1401(3)(A)(i). The second prong identifies whether the
child with a qualifying disorder "needs" special
education and related services as a result of that disorder.
Id. § 1401(3)(A)(ii).
promulgated by the U.S. Department of Education ("U.S.
DOE") provide further guidance on how to identify a
child with an SLD. An SLD is "a disorder in one or more
of the basic psychological processes involved in
understanding or in using language, spoken or written, that
may manifest itself in the imperfect ability to listen,
think, speak, read, write, spell, or to do mathematical
calculations, including conditions such as perceptual
disabilities, brain injury, minimal brain dysfunction,
dyslexia, and developmental aphasia." 34 C.F.R. §
300.8(c)(10)(i). A child has an SLD if:
(1) The child does not achieve adequately for the child's
age or  meet State-approved grade-level standards in one or
more of the following areas, when provided with learning
experiences and instruction appropriate for the child's
age or State-approved grade-level standards:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading fluency skills.
(vi) Reading comprehension.
(vii) Mathematics calculation.
(viii) Mathematics problem solving.
(2)(i) The child does not make sufficient progress to meet
age or State-approved grade-level standards in one or more of
the areas identified in paragraph (a)(1) of this section when
using a process based on the child's response to
scientific, research-based intervention; or
(ii) The child 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 . . . to be relevant to the
identification of a specific learning disability, using
appropriate assessments, consistent with §§ 300.304
Id. §§ 300.309(a)(1),
child is determined to have an SLD, the eligibility inquiry
asks whether the child also "needs special education and
related services" "by reason [of]" her
disability. 20 U.S.C. § 1401(3)(A)(ii). "Special
education" is defined as "specially designed
instruction, at no cost to parents, to meet the unique needs
of a child with a disability, including . . . instruction
conducted in the classroom, in the home . . . and in other
settings, " as well as "instruction in physical
education." Id. § 1401(29). "Related
services" means "transportation, and such
developmental, corrective, and other supportive services
(including . . . psychological services, physical and
occupational therapy, . . . medical services . . .) as may be
required to assist a child with a disability to benefit from
special education." Id. § 1401(26)(A).
Neither the statute nor the agency regulations specifies the
object or the scope of the need determination.
Factual Background 
early as preschool, Jane struggled with reading and learning
to talk. When she was in second grade in the Cape Elizabeth
School District ("school district"), Jane's
Individualized Education Program team ("IEP team")
-- which included her parents and teachers (among other
individuals), see id. § 1414(d)(1)(B) --
concluded that Jane was eligible to receive special education
under the IDEA as a student with an SLD based on her
deficiency in reading fluency. Jane's IEP team thus
developed an Individualized Education Program
("IEP") to provide Jane with specialized
instruction to improve her reading fluency skills. As a
bright, hard-working student with dedicated parents, Jane
improved her reading skills over the years, and she continued
to perform well in school, as well as on standardized tests.
March 2012, when Jane was in seventh grade, her IEP team
decided to place her on consult status for the remainder of
the year, based on the fact that she was achieving well in
school, including in the area of reading fluency. Although
the Does did not object, they expressed a concern that Jane
might regress without specialized instruction. To address
this concern, the IEP team agreed to administer monthly