9th Circuit Upholds District’s Finding that Student with Auditory Processing Disorder Was Not Eligible for Special Ed

July 2014

The Pajaro Valley Unified School District (“District”) acted reasonably when it determined that a student with an auditory processing disorder did not qualify for special education services under the category of “specific learning disability,” the 9th Circuit Court of Appeals ruled. (E.M. v. Pajaro Valley Unified School Dist. (7/15/14, No. 12-15743).)  Additionally, although the court recognized that a student may be eligible for special education under more than one category of disability, it found that the District did not act inappropriately by failing to qualify the student under the category of “other health impairment.”

The student, who has since graduated from high school, was initially assessed by the District for special education eligibility during the 2004-2005 school year after a private psychologist had diagnosed him with a learning disability (later established to be an auditory processing disorder).  Based on results from the tests selected by the District’s psychologist, the District determined that the student did not demonstrate a “severe discrepancy” between intellectual ability and achievement, which, under the laws existing at the time, was a prerequisite for qualifying for special education under the specific learning disability category. 

The parents filed a due process complaint with the Office of Administrative Hearings (“OAH”), which determined that the District did not deny student a free appropriate public education when it found him ineligible for special education.  On appeal, a federal District Court upheld OAH’s decision.  The case reached the 9th Circuit initially in 2011, which returned it to the District Court for further consideration of evidence.  The District Court reaffirmed its original determination in the District’s favor and also concluded that because an auditory process disorder was a “specific learning disability” it could not also be an “other health impairment.”

Again before the 9th Circuit, the court rejected a challenge to the District’s use of particular tests scores as a basis for its determination that the student did not meet eligibility criteria for a specific learning disability.  It stated that the tests used were well-respected tests for cognitive ability and that “districts have discretion in selecting the diagnostic tests they use to determine special education eligibility.”

The 9th Circuit then deferred to the position of the U.S. Department of Education that a student with a disability may be eligible for special education under more than one category of disability.  In particular, it concluded that in addition to “specific learning disability,” a student with an auditory process disorder may qualify under the category of “other health impairment” if the condition meets the category’s criteria (limited strength, vitality or alertness due to chronic or acute health problems that adversely affects his or her educational performance).

However, in finding that the District did not act unreasonably by failing to apply the “other health impairment” criteria, the 9th Circuit found no evidence that the student’s auditory processing disorder manifested itself by limiting the student’s alertness or that the disorder was due to chronic or acute health problems.  Even assuming that the student had limited alertness, the court added that there was scant evidence that it adversely affected his educational performance.  

If you have any questions regarding this case or any other special education matter, please call one of our six offices.

F3 NewsFlash prepared by Jennifer R. Rowe Gonzalez and John W. Norlin.
Jennifer is a partner in the F3 Fresno  office.
John is Special Counsel in the F3 San Diego office.

As part of the E-ducation™ Professional Development Series hosted by ACSA and F3, we offer webinars on various topics.  You can find the information on the ACSA website at www.acsa.org/e-ducation.


Keep up to the minute on the latest updates, NewsFlashes, and legal news by following F3 on Twitter:@F3Law.

© 2014 Fagen Friedman & Fulfrost, LLP


All rights reserved, except that the Managing Partner of Fagen Friedman & Fulfrost, LLP hereby grants permission to any client of Fagen Friedman & Fulfrost, LLP to use, reproduce and distribute this NewsFlash intact and solely for the internal, noncommercial purposes of such client.