Ninth Circuit Holds That Student is Entitled to Special Education Services Under IDEA Despite Satisfactory Academic Performance.
On September 1, 2016, the Ninth Circuit reversed the District Court’s ruling in L.J. v. Pittsburg U.S.D. that a student with several disabilities under IDEA was not eligible for special education services because his academic performance was “satisfactory” in the general education classroom.
L.J. is an elementary school student who had been diagnosed with bipolar disorder, oppositional defiant disorder, and ADHD, and who has frequently exhibited suicidal tendencies. As a result, L.J. demonstrated behavioral issues both in class and away from school, including difficulties with anger, self-control, violent outbursts, and bullying. L.J.’s mother requested evaluation and that the School District find L.J. eligible for special education services. The District convened a student study team, which lead to L.J. being placed in another school and receiving a behavioral plan and a one-on-one aide.
Two IEP meetings were held, in which the District determined that L.J. did not have a qualifying disability and that L.J.’s academic performance was satisfactory.
An Administrative Law Judge upheld the District’s determination that L.J. was not eligible for special education, finding that L.J. did not have a qualifying disability, and even if he did, he would not be eligible for special education services because his academic performance was satisfactory.
L.J.’s mother appealed the ALJ’s ruling to the District Court, which granted summary judgment for the School District. The District Court found that L.J. did indeed have three qualifying disabilities under the IDEA (specific learning disability, serious emotional disturbance due to his ODD and bipolar disorder, and other health impairment due to his ADHD.) However, the District Court found that “L.J. did not need special education services because of his satisfactory performance in general education.” L.J. v. Pittsburg U.S.D., at 11.
The Ninth Circuit reversed the District Court’s ruling, finding that L.J.’s “satisfactory performance,” including average or above-average testing scores, did not render him ineligible for special education services because even though L.J.’s “satisfactory performance” occurred in a general education classroom, this improvement was likely attributable to L.J. receiving one-on-one assistance and behavioral counseling. Id., at 16-19. The Court further held that “L.J. has shown himself to be an intelligent child, so his academic performance could have been even more improved with the appropriate specially designed instruction.” Id., at 19. As such, the Ninth Circuit determined that L.J. should be found eligible under IDEA ordered the School District to formulate an IEP. Id., at 21.
- Under this ruling, “satisfactory performance” does not, without further examination, disqualify a student from being found eligible for special education services.
- In determining whether a student is eligible for special education, the substantive focus of an IEP team should be whether or not the student has a qualifying disability as defined by the IDEA.
- Once it is determined that the student has a disability, the team must determine whether the “support provided through the regular school program is sufficient” for the student to be successful. J. v. Pittsburg U.S.D., at 13-14; see also 20 U.S.C. § 1401(3)(A), Cal. Educ. Code § 56026.
- If the regular school program is sufficient, the IEP team may determine that the student does not need special education services.
- However, the IEP team must examine whether the student’s success in a “general education classroom” is attributable to special education-like services or student-specific accommodations that the student may already have been receiving.
- If the student’s satisfactory performance is at least partially attributable to services previously provided that are not part of the general education program, such as one-on-one assistance, extra time, behavioral plans, etc., the student should be found eligible for special education services under the IDEA and the School District should provide an IEP.
Supreme Court to Revisit What Level of Educational Benefit a Child Must Receive From an IEP to Satisfy the IDEA
Summary: In a landmark 1982 case on special education and the IDEA, the Supreme Court held that an IEP must be reasonably calculated to enable a child to receive “educational benefits.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley (1982) 458 U.S. 176, 206-207 (“Rowley”). The Supreme Court added that a child must receive “some educational benefit” sufficient to provide “access” to education that is “meaningful.” Rowley at 192, 200. In the 34 years since Rowley was decided, federal courts have reached different conclusions regarding what level of educational benefit has to be provided by an IEP to satisfy the IDEA. The Supreme Court has agreed to hear an appeal out of Colorado in the case of Endrew F. v. Douglas County School District RE-1 (No. 15-827) to consider this question and, hopefully, provide a clear answer.
Federal courts in the United States are divided into twelve geographic “Circuits,” each with its own Court of Appeals. A number of these Courts of Appeals disagree on what level of educational benefit a child must receive from an IEP to satisfy the IDEA’s guarantee of a free appropriate public education (“FAPE”).
The Ninth Circuit Court of Appeals, which has jurisdiction over California, requires a local educational agency (“LEA”) to provide a child with a “meaningful benefit.” N.B. v. Hellgate Elementary Sch. Dist., ex rel. Bd. of Dirs., Missoula Cnty., Mont., (9th Cir. 2008) 541 F.3d 1202, 1212-13; see M.M. v. Lafayette Sch. Dist. (9th Cir. 2014) 767 F.3d 842, 852.
In practice it can be difficult and fact-intensive to determine what constitutes a “meaningful benefit,” and different panels of Ninth Circuit Justices have disagreed with each other about what this means. Compare N.B. v. Hellgate at 1212-13 with J.L. v. Mercer Island Sch. Dist. (9th Cir. 2010) 592 F.3d 938, 951 n.10 (“Some confusion exists within this circuit . . . .”). However, the Ninth Circuit’s standard is clearly higher than the Tenth Circuit Court of Appeals requirement of “some educational benefit” that “must merely be more than de minimis” (a minimal or “trifling” amount). Thompson R2-J Sch. Dist. v. Luke P. ex rel. Jeff P. (10th Cir. 2008) 540 F.3d 1143, 1149. The Tenth Circuit’s standard is similar to the prevailing standard in five other circuits covering broad swaths of the United States.
The Supreme Court has agreed to hear an appeal from the Tenth Circuit to consider which, if any, of the varying standards the different circuit courts have created over the last three decades is the correct measure of “educational benefit” necessary to provide a FAPE.
Practice Tips: The Ninth Circuit is in the minority with its more demanding standard requiring a “meaningful benefit” from an IEP to satisfy the duty to provide a FAPE. However, for the time being this is still the law in California and in the future could be the legal standard applied throughout the United States.
 A thirteenth appellate court hears appeals in special cases, like those involving patent laws.
Education Code Section 7050 et seq. address the right of school officers and employees to participate in political activities. Section 7050 et seq. specifically applies to officers and employees of school districts, county superintendents of schools, and community colleges. In general, school officers and employees may not use public resources to urge the support or defeat of any ballot measure or candidate. However, public resources may be used for informational efforts regarding ballot measures. The potential penalties for improper use of public resources include county jail imprisonment for up to one year and/or a fine of up to $1,000, or imprisonment in state prison for up to three years. The following is a description of various political activities in which school officers and employees may or may not participate, as well as a few examples. Please note that applying these principles in specific situations requires a careful analysis of the facts of the particular case as well as a thorough review of the law.
- School funds, services, supplies, or equipment may not be used to urge the support or defeat of any ballot measure or candidate.
- School officers and employees may not directly or indirectly use, promise, threaten or attempt to use authority or influence for the purpose of influencing political action.
- Restrictions may not be placed on the political activities of school officers or employees except as provided in the Education Code, or as necessary to meet requirements of federal law.
- A school or community college district may not hire a consultant to develop and implement strategies to support a bond measure.
- School funds, services, supplies, and equipment may be used to provide information to the public about the possible effects of any bond issue or other ballot measure if the following conditions are met:
- The information activities are otherwise lawful; and
- The information provided is a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment on the matter.
- A forum under the control of the governing board of a school district or community college district may be used if the forum is made available to all sides on an equitable basis. 
- School officials may adopt policies related to school officers and employees engaging in political activities during working hours.
- School officials may adopt policies related to political activities on school property.
- School officials may adopt policies allowing the placement of school board candidate endorsements in school office mailboxes.
- School officials may adopt resolutions endorsing or opposing a ballot measure.
- School officials may allow employees to take up to two hours off work, without loss of pay, if needed to permit them to vote.
Note: School districts and county offices of education are required to post a notice to employees informing them of their right to such a leave of absence to vote at least 10 days before every statewide election.
- School officials may prohibit election campaigning on Election Day by the public on school property beyond 100 feet when a public school building is designated as a polling place.
EXAMPLES OF PROHIBITED ACTIVITIES
- An employee of a county office of education may not use school funds to purchase items such as bumper stickers, posters, advertising “floats,” and television and radio “spots” in opposition to a ballot initiative.
- A superintendent may not send an e-mail disseminating campaign literature prepared by private proponents of a ballot initiative.
- A school secretary may not use the school’s copy machine to make copies of campaign literature.
- A director of a county office of education program may not direct employees to spend working time preparing materials to oppose a ballot measure.
- A school may not conduct a public forum and debate at which only one side of an issue is presented.
- A personnel director in a school district may not promise a job applicant a position in the district in exchange for the applicant’s promise to vote for a ballot initiative.
- School districts may not restrict employees from wearing political buttons in non-instructional settings on school property, including Back-to-School Night.
EXAMPLES OF ALLOWABLE ACTIVITIES
- A classroom teacher, in his or her private capacity, may make an appearance before the City Council during non-working hours to urge the Council’s support of a ballot measure.
- A member of a school district governing board and a district superintendent may appear during working hours before a citizens’ group that requested such an appearance to respond to questions from the group regarding a ballot measure.
- An assistant superintendent of a county office of education may reply to an e-mail from a concerned parent providing the parent with a fair presentation of the facts related to a ballot measure.
- A school district may hold a public forum at which proponents and opponents of a ballot measure may appear and freely express their views on a ballot measure.
EXAMPLES OF ALLOWABLE ACTIVITIES (cont’d.)
- A school facility may be rented out to proponents of a ballot measure to hold a meeting, and the facility is also made available on an equitable basis to opponents of the ballot measure.
- A school district governing board may adopt a policy restricting employees from wearing political buttons in instructional settings.
- A school principal may direct an employee to remove a large campaign sign from the employee’s private vehicle parked in the school parking lot (or park the vehicle off school property) where the sign is visible to students in class and the public.
- A county board of education may adopt a resolution endorsing a ballot measure during a regularly scheduled meeting which is open to the public.
 Cal. Educ. Code §7051.  Id. at §7054(a).  Id. at §7054(b).  Id. at §7054(c).  Id. at §7054(a).  Id. at §7053.  Id. at §7052.  Op.Atty.Gen. 04-211 (April 7, 2005)  Id. at §7054(b).  Id. at §7058.  Id. at §7055(a).  Id. at §7055(b).  San Leandro Teachers Ass’n v. Governing Bd. of San Leandro Unified School Dist., 46 Cal.4th 822 (2009).  Choice-in-Education League v. Los Angeles Unified School District, 17 Cal.App.4th 415 (1993).  Cal. Elec. Code §14000.  Cal. Elec. Code §14001.  75 Cal.Ops.Atty.Gen. 232 (Oct. 8, 1992).  Stanson v. Mott, 130 Cal.Rptr. 697 (1976).  Choice-in-Education League v. Los Angeles Unified School District, 17 Cal.App.4th 415 (1993).  Cal. Educ. Code §7054.1.  Choice-in-Education League v. Los Angeles Unified School District, 17 Cal.App.4th 415 (1993).  CTA v. Governing Board of San Diego Unified School District, 45 Cal.App.4th 1383 (1996).  Wilmar Teachers Association, Cal. PERB Dec. No. 1371 (2000).