United States v. 2007-09-05 | 05-35181 | VAN DUYN VBAKER SCHOOL DISTRICT | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JAMES N. VAN DUYN, for his son,
Christopher J. Van Duyn, a minor No. 05-35181
& incapacitated person, D.C. No.
Plaintiff-Appellant, CV-02-01060-MO 
v. AMENDED
BAKER SCHOOL DISTRICT 5J, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
November 14, 2006—Portland, Oregon
Filed April 3, 2007
Amended September 6, 2007
Before: Warren J. Ferguson, Diarmuid F. O’Scannlain and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Dissent by Judge Ferguson
11761

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COUNSEL
Pamela C. Van Duyn (argued), Baker City, Oregon, and
Damien R. Yervasi, Baker City, Oregon, for the plaintiff-
appellant.
Richard Cohn-Lee (argued) and Nancy J. Hungerford, The
Hungerford Law Firm, Oregon City, Oregon, for the
defendant-appellee.
Lewis Bossing, The Legal Aid Society of San Francisco, San
Francisco, California, for the amici curiae The Legal Aid
Society of San Francisco - Employment Law Center, the
Learning Rights Law Center, the Oregon Advocacy Center
and Protection & Advocacy, Inc.
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The opinion filed at 481 F.3d 770 (9th Cir. 2007), is
amended in full as follows:
OPINION
FISHER, Circuit Judge:
This case arises from the difficult transition of Christopher
J. Van Duyn (“Van Duyn”), a severely autistic child, from
elementary to middle school. Van Duyn alleges that Baker
School District 5J (“District”) failed to implement key por-
tions of his individualized educational program (“IEP”) dur-
ing the 2001-02 school year, his first year at Baker Middle
School, thereby depriving him of the free appropriate public
education guaranteed by the federal Individuals with Disabili-
ties Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.1 An
administrative law judge (“ALJ”) ruled that the District failed
to provide Van Duyn sufficient math instruction, but other-
wise found that the District had adequately implemented the
IEP. The district court affirmed the ALJ’s decision in all
respects and declined to award any attorney’s fees to Van
Duyn.
Van Duyn brings to us a detailed list of complaints about
the District’s variances from his IEP, arguing that the ALJ
and district court were much too forgiving of the District’s
failures to provide him the special instructional and support
services agreed to in the IEP. Accordingly, we must decide
how much leeway a school district has in implementing an
IEP as it translates the plan’s provisions into action at school
and in the classroom. We hold that when a school district does
not perform exactly as called for by the IEP, the district does
not violate the IDEA unless it is shown to have materially
failed to implement the child’s IEP. A material failure occurs
1Unless otherwise indicated, all statutory citations are to the IDEA.
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when there is more than a minor discrepancy between the ser-
vices provided to a disabled child and those required by the
IEP.
Applying this standard to the various implementation fail-
ures Van Duyn alleges, we conclude that none of them was
material (with the exception of the math instruction shortfall,
which was later remedied in response to the ALJ’s order), and
that the District therefore did not violate the IDEA. Because
Van Duyn did partially prevail, however, we hold that Van
Duyn is to that extent entitled to reasonable attorney’s fees for
the relevant work done at the administrative hearing level —
though not for Van Duyn’s mother, who has acted as one of
his attorneys in these proceedings. Accordingly, we affirm in
part and reverse in part the district court’s judgment and
remand for further proceedings consistent with this opinion.
I. Factual and Procedural Background
A. Factual History
Van Duyn is a severely autistic boy who was 13 years old
during the 2001-02 school year. During the three years prior
to 2001-02, Van Duyn was a student at South Baker Elemen-
tary School, where he received extensive special education
services. On February 22, 2001, a team comprised of teachers,
district representatives and Van Duyn’s mother finalized a
comprehensive IEP for the 2001-02 school year, during which
Van Duyn would transition to Baker Middle School.
Van Duyn’s 2001-02 IEP called for him to work on “lan-
guage arts - reading and written work” for 6-7 hours per
week, “math computation/math computer drills” for 8-10
hours per week and “adaptive P.E. - gymnastics and swim-
ming” for 3-4 hours per week. At the middle school, his
schedule consisted of alternating “red” and “white” days, with
gym, language arts/reading, math and study skills on red days,
and social studies/language arts, computers/vocational, lan-
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guage arts and reading on white days. Classes each lasted for
about 80 minutes, and he worked on math skills during his
designated red day math classes as well as during his advisory
time and study skills and computers/vocational classes. Van
Duyn attended gym class, which included a two-week gym-
nastics segment, on red days, and had swimming lessons
twice per week.
Van Duyn’s IEP also included a behavior management plan
that was to be implemented full-time. Like the elementary
school that he had previously attended, the middle school
employed a daily behavior card, a visual schedule, social sto-
ries and a quiet room. However, his behavior was not accu-
rately recorded on the card, he did not set up his daily
schedule before starting each school day, social stories were
not properly used and he was not ordered to go to the quiet
room after all incidents of misbehavior.
The IEP further called for all material to be presented at
Van Duyn’s level and for him to be placed in a “self-
contained” special education room. During class, he typically
received one-on-one instruction from his personal aide, Linda
Baxter, as well as some personal instruction from his two
main teachers, Sue Irby and Kathleen Walker. It is unclear
whether he generally proceeded at his own pace or instead
received instruction about whatever subject the class was
studying that day. His classes varied in size from 7 to 15 stu-
dents and were composed entirely of special education stu-
dents.
Other provisions in the IEP required the regional autism
specialist to visit the middle school twice per week, “augmen-
tative communication” services to be provided for two hours
per month and Van Duyn’s aide, Ms. Baxter, to receive state
autism training. The regional autism consultant visited the
middle school a dozen times over the first three months of the
2001-02 school year, and other autism consultants also came
by with some regularity. Augmentative communication ser-
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vices were provided to Van Duyn in the form of visual aids,
social stories, creative computer programs and other learning
tools, though not by regional staff. His aide, Ms. Baxter, did
not receive state-level training in educating autistic children,
but she did attend local autism classes and meet with individ-
uals who had worked with him in the past.
Finally, under the IEP, Van Duyn’s progress was to be
measured by quarterly report cards, and approximately 70
short-term objectives corresponding to a series of annual
goals were to be pursued. The middle school issued quarterly
report cards to Van Duyn containing percentage scores in a
range of categories. Some of these categories corresponded to
the IEP goals while others did not, and on the whole the mid-
dle school report cards did not track the IEP as well as the ele-
mentary school report cards did. Van Duyn also worked
toward many but not all of the short-term objectives set out
in the IEP. For example, he did not participate in any tele-
phone activities or write a daily note home until December
2001.
There is evidence that Van Duyn’s reading skills deterio-
rated during the 2001-02 school year, though it is unclear
whether the regression amounted to three years or less than
one. However, the school’s therapist and psychologist both
testified that his behavior improved in 2001-02 and that he
was more engaged with his surroundings as the year prog-
ressed. Ms. Walker also testified that Van Duyn’s math skills
showed progress in 2001-02. Finally, his report cards indi-
cated improvement in the vast majority of categories from
October 2001 to June 2002.
B. Procedural History
On September 25, 2001, a few weeks after the 2001-02
school year had begun, Van Duyn’s parents filed a request for
a due process hearing pursuant to 20 U.S.C. § 1415(f). They
alleged that the District had completely failed to provide cer-
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tain services described in the IEP and materially failed to
implement other IEP provisions. According to his parents,
these failures were depriving Van Duyn of a free appropriate
public education. The ALJ issued a detailed decision on April
8, 2002. She found that the District had failed to implement
the IEP with regard to Van Duyn’s math goals because he was
not being given the requisite 8-10 hours of weekly math
instruction. Accordingly, the ALJ ordered the District to pro-
vide Van Duyn with the “average of five hours per week of
instruction in math that he has not been receiving.” In every
other contested area, the ALJ ruled in favor of the District.
She found that Van Duyn’s aide and teachers had been prop-
erly trained, that he had been placed in a self-contained class-
room, that his teachers had worked with him on oral language
skills, that he had received daily instruction in reading and
that short-term objectives such as taking a daily note home
had not initially been implemented but were now being fol-
lowed.
Van Duyn appealed the ALJ’s decision to the district court.
The court first ruled that only events prior to February 1, 2002
(the date of the administrative hearing) could be used to deter-
mine whether the District failed to implement the IEP, though
later events could be considered in crafting a remedy. The
court then divided Van Duyn’s allegations of failed imple-
mentation into several categories, affording the ALJ’s com-
prehensive findings considerable deference. The court
concluded that there had been no failure to implement a sub-
stantial provision of the IEP. The court also ruled that the Dis-
trict had complied with the ALJ’s order that additional math
instruction be provided to Van Duyn, and that Van Duyn was
not entitled to attorney’s fees because he was not the prevail-
ing party.
Van Duyn timely appealed. We have jurisdiction under 28
U.S.C. § 1291.
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II. Standard of Review
We review the district court’s findings of fact for clear
error, even when they are based on the written record of
administrative proceedings. Amanda J. v. Clark County Sch.
Dist., 267 F.3d 877, 887 (9th Cir. 2001). The district court’s
legal conclusions are reviewed de novo. Id. However, “com-
plete de novo review” of the administrative proceeding “is
inappropriate.” Id. Under the IDEA, federal courts are to “re-
ceive the records of the administrative proceedings” and
“bas[e their] decisions[s] on the preponderance of the evi-
dence.” 20 U.S.C. § 1415(i)(2)(C). This means that “due
weight” must be given to the administrative decision below
and that courts must not “substitute their own notions of
sound educational policy for those of the school authorities
which they review.” Bd. of Educ. of Henrick Hudson Cent.
Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 206
(1982) (“Rowley”); see also Capistrano Unified Sch. Dist. v.
Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995) (“The amount
of deference accorded the hearing officer’s findings increases
where they are thorough and careful.”) (internal quotations
and citation omitted).
III. Discussion
A. Legal Background
[1] The IDEA was enacted in 1975 because of Congress’
belief that “the educational needs of millions of children with
disabilities were not being fully met.” 20 U.S.C. § 1400(c)(2).
The statute’s stated purposes include “to ensure that all chil-
dren with disabilities have available to them a free appropriate
public education . . . designed to meet their unique needs and
prepare them for further educational, employment, and inde-
pendent living,” and “to ensure that the rights of children with
disabilities and parents of such children are protected.”
§ 1400(d)(1)(A), (B). According to Senator Harrison Wil-
liams, the IDEA’s principal drafter, “[t]his measure fulfills the
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promise of the Constitution that . . . handicapped children no
longer will be left out.” 121 Cong. Rec. 37,413 (1975).
One of the IDEA’s most important mechanisms for achiev-
ing these lofty goals is the formulation and implementation of
IEPs. Under § 1414(d), every disabled child must have an IEP
drafted and put into effect by the local educational authority.
The IEP is to be formulated by a team that includes the child’s
parents, regular and special education teachers, a district rep-
resentative and other individuals with relevant expertise.
§ 1414(d)(1)(B). It must address such matters as the child’s
present level of academic achievement, annual goals for the
child, how progress toward those goals is to be measured and
the services to be provided to the child. § 1414(d)(1)(A)(i).
The child’s parents are entitled to participate in meetings
regarding the IEP, § 1415(b)(1), and must receive written
notice of any proposed changes to the IEP, § 1415(b)(3).
Either the child’s parents or the local educational authority
may bring a complaint to the state educational agency about
any matter relating to the IEP or the child’s free appropriate
public education. § 1415(b)(6), (7). If such a complaint is not
otherwise resolved, a due process hearing is held to determine
“whether the child received a free appropriate public educa-
tion.” § 1415(f)(3)(E)(i). After going through the due process
hearing and any other available administrative remedies, an
aggrieved party may file a civil action in federal district court.
§ 1415(i)(2)(A).
The Supreme Court’s first and most significant opinion
interpreting the IDEA was its 1982 decision in Rowley, in
which the Court considered the content of an IEP that was
allegedly deficient because it did not call for a sign-language
interpreter to assist the deaf child in all of her classes. The
Court rejected this challenge, concluding that all of the
IDEA’s procedural requirements had been followed and that
the statute did not aim “to maximize the potential of each
handicapped child” but rather merely “to provide them with
access to a free public education.” 458 U.S. at 200 (emphasis
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added). The Court also set out a two-part test for evaluating
complaints about the content of an IEP: “First, has the State
complied with the procedures set forth in the Act? And sec-
ond, is the individualized educational program developed
through the Act’s procedures reasonably calculated to enable
the child to receive educational benefits?” Id. at 206-07 (inter-
nal footnotes omitted).
We have applied the Rowley framework in numerous cases.
See, e.g., M.L. v. Federal Way Sch. Dist., 394 F.3d 634, 644-
46 (9th Cir. 2005); Amanda J., 267 F.3d at 890-95; Warten-
berg, 59 F.3d at 891-97. However, we have not previously
considered challenges to the implementation — as opposed to
the content — of an IEP. As discussed in more detail below,
the Fifth Circuit addressed IEP implementation challenges in
Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341 (5th Cir.
2000), holding that de minimis failures to implement an IEP
do not amount to a violation of the IDEA, but rather that the
statute is violated only by failures to implement “substantial”
or “significant” IEP provisions. Id. at 349. The Eighth Circuit
took a similar position in Neosho R-V Sch. Dist. v. Clark, 315
F.3d 1022 (8th Cir. 2003), holding that the IDEA is violated
when a school fails to implement an “essential” element of an
IEP, i.e., an element “necessary for the child to receive an
educational benefit.” Id. at 1027 n.3.
B. Violations of the IDEA’s Procedural Requirements
Against this background, we turn to Van Duyn’s argument
that the District’s alleged failures to implement his IEP
amounted to both a violation of the IDEA’s procedural
requirements and a substantive violation that denied him a
free appropriate public education. We conclude there were
neither procedural nor substantive violations of the statute.
Van Duyn’s first contention is that by failing to implement
portions of the IEP, the District “changed” the IEP without
notifying his parents in advance — a violation of the IDEA’s
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procedural requirements for the formulation and revision of
IEPs. See § 1415(b)(3). In his view, this procedural defect
impeded his parents’ right to participate in decisions regard-
ing the IEP and hence violated the statute even if he cannot
directly establish that he was deprived of educational benefits
or a free appropriate public education. See
§ 1415(f)(3)(E)(ii)(II) (IDEA violated if procedural flaws
“significantly impede[ ] the parents’ opportunity to participate
in the decisionmaking process regarding the provision of a
free appropriate public education to the parents’ child”).
[2] Van Duyn’s procedural argument fails because there is
no evidence in the record that the District ever attempted to
change his IEP after the 2001-02 school year began. He points
to no concrete proposals to change the IEP, nor is there any
testimony or documentary evidence that the District decided
to revise the IEP in secret. The District did request a
“[m]eeting to discuss Augmentative Communication and
Autism Service Time” in May 2001. But Van Duyn’s parents
were notified about the meeting, it took place well before the
2001-02 school year started and it resulted in no change to the
IEP because the IEP team decided that “[t]ransitioning to a
new school and teachers is a major change for an Autistic stu-
dent and more services are needed.”
[3] Van Duyn’s procedural argument thus boils down to the
novel proposition that failures to implement an IEP are equiv-
alent to changes to an IEP. If accepted, this proposition would
convert all IEP implementation failures into procedural viola-
tions of the IDEA, but there is no indication that a conflation
of this sort is intended or permitted by the statute. Moreover,
the one case that Van Duyn cites as support, an unpublished
Maryland district court decision, is unhelpful to him. Mana-
lansan v. Board of Educ. of Baltimore City, No. Civ. AMD
01-312, 2001 WL 939699 (D. Md. Aug. 14, 2001) (unpub-
lished), held that the Baltimore educational authority violated
the IDEA because of substantive failures in implementing an
IEP — not because of any procedural shortcomings in the
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IEP’s formulation or implementation. See 2001 WL 939699,
at *15 (free appropriate public education denied because “the
only rational determination . . . is that defendants have failed
to implement Brandon’s IEP”). Like all other courts to have
considered the relationship between IEP implementation fail-
ures and IDEA procedural violations, Manalansan understood
the tardiness and absences of the plaintiff’s aides as failures
to implement the IEP, not surreptitious attempts to alter it.
C. Failures To Implement the IEP
We therefore turn to Van Duyn’s principal contention —
that the District in fact failed to implement portions of his
IEP. In addressing his argument, we hold that the ALJ did not
erroneously allocate the burden of proof at the administrative
hearing, that state contract law does not apply to the interpre-
tation of an IEP and that only material failures to implement
an IEP constitute violations of the IDEA. Applying this stan-
dard, we conclude that none of the implementation failures
that Van Duyn alleges was material.
1. Burden of Proof
[4] Van Duyn argues that the ALJ erroneously placed the
burden of proof on him to establish that the District failed to
implement the IEP. Although the ALJ never specified which
party bore the burden, even if she did place the burden on Van
Duyn, doing so was proper under Schaffer v. Weast, 546 U.S.
49 (2005). The Supreme Court held in Schaffer that “[t]he
burden of proof in an administrative hearing challenging an
IEP is properly placed upon the party seeking relief.” Id. at
537. Van Duyn, as the party objecting to the IEP’s implemen-
tation, thus bore the burden of proof at the administrative
hearing.
[5] Van Duyn contends that Schaffer is inapplicable
because it dealt with a challenge to the content rather than the
implementation of an IEP, but that is a distinction without a
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difference. Nothing in Schaffer hinged on the kind of chal-
lenge being made to the IEP. Rather, the Court cited “the
ordinary default rule that plaintiffs bear the risk of failing to
prove their claims,” holding that “[a]bsent some reason to
believe that Congress intended otherwise, . . . we will con-
clude that the burden of persuasion lies where it usually falls,
upon the party seeking relief.” Id. at 535; see also Stringer v.
St. James R-1 Sch. Dist., 446 F.3d 799, 803 (8th Cir. 2006)
(following Schaffer in context of claim that IEP was not being
implemented). Neither Schaffer nor the text of the IDEA sup-
ports imposing a different burden in IEP implementation
cases than in formulation cases. Accordingly, we hold that if
the ALJ placed the burden of proof on Van Duyn, that alloca-
tion was correct.2
2. Interpretation of the IEP
[6] Van Duyn next argues that contested terms in the IEP
should be interpreted under Oregon contract law, in particular
the principle that ambiguities must be resolved in Van Duyn’s
favor because the document was drafted by the District for his
benefit. This argument, raised for the first time on appeal, is
meritless. First, the IEP is entirely a federal statutory creation,
and courts have rejected efforts to frame challenges to IEPs
as breach-of-contract claims. See, e.g., Ms. K. v. City of South
Portland, 407 F. Supp. 2d 290, 301 (D. Me. 2006) (“[A]n IEP
is not a legally binding contract.”). Van Duyn offers no exam-
ple of a court treating an IEP as a contract, nor have we been
able to locate any.
2There is language that appears to impose the burden on the school dis-
trict in Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1398 (9th Cir.
1994). But that language is in direct conflict with the Court’s subsequent
decision in Schaffer, and is also mere dictum since only the burden of
proof at the district court (as opposed to administrative) level was at issue
in Clyde K. See also B.B. ex rel. J.B. v. Hawaii Dep’t of Educ., 2006 WL
3002235, *6 (D. Haw. Oct. 19, 2006) (noting that “the law [has] changed”
since Clyde K. as a result of the Court’s decision in Schaffer).
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[7] Second, even if the principle that ambiguous terms are
interpreted against the drafting party applied, it would not
help Van Duyn. His parents played a central role in the draft-
ing of the IEP, so it is unclear who the IEP’s “author” is for
contract law purposes. In addition, the terms Van Duyn cites
as ambiguous simply do not mean what he claims, even tak-
ing the favorable contract law principle into account. In our
view, Van Duyn’s real objection is not to the ambiguity of the
IEP’s terms but rather to its omission of additional require-
ments for the District. This is not a problem we can solve. An
IEP is not a contract — but even if it were, we could not read
into it additional terms the parties did not agree to include.
3. The Materiality Standard
[8] The core of Van Duyn’s case is his allegation that the
District failed to implement his IEP. Because most IDEA
cases involve the formulation rather than the implementation
of an IEP, our court has not yet articulated the standard for
assessing an IEP’s implementation. To determine this stan-
dard, we look to both the statutory text and decisions of other
courts.
[9] The IDEA defines a free appropriate public education
as “special education and related services that . . . are pro-
vided in conformity with the [child’s] individualized educa-
tion program.” § 1401(9). The statute also allows a party to
challenge an IEP because of procedural flaws in the IEP’s for-
mulation as well as “on substantive grounds based on a deter-
mination of whether the child received a free appropriate
public education.” § 1415(f)(3)(E)(i). This language surely
indicates that a failure to implement an IEP may deny a child
a free appropriate public education and thereby give rise to a
claim under the statute. The language also counsels against
making minor implementation failures actionable given that
“special education and related services” need only be pro-
vided “in conformity with” the IEP. There is no statutory
requirement of perfect adherence to the IEP, nor any reason
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rooted in the statutory text to view minor implementation fail-
ures as denials of a free appropriate public education.
[10] As noted earlier, the Supreme Court in Rowley was
faced with a challenge to an IEP’s content. Nevertheless, the
Court’s approach is instructive in the IEP implementation
context as well. In particular, it is significant that, according
to the Court, procedural flaws in an IEP’s formulation do not
automatically violate the IDEA, but rather do so only when
the resulting IEP is not “reasonably calculated to enable the
child to receive educational benefits.” 458 U.S. at 207. This
suggests that minor failures in implementing an IEP, just like
minor failures in following the IDEA’s procedural require-
ments, should not automatically be treated as violations of the
statute. The Court’s description of the IDEA’s purpose as pro-
viding a “basic floor of opportunity” to disabled students
rather than a “potential-maximizing education” also supports
granting some flexibility to school districts charged with
implementing IEPs. Id. at 197 n.21, 201.
The two circuits to have explicitly addressed IEP imple-
mentation failures both did so in a manner consistent with our
reading of the statutory text and Rowley. In Bobby R., the
Fifth Circuit considered a disabled child whose IEP had not
been perfectly implemented and whose academic performance
had improved in some areas and declined in others. The court
held that “to prevail on a claim under the IDEA, a party chal-
lenging the implementation of an IEP must show more than
a de minimis failure to implement all elements of that IEP,
and, instead, must demonstrate that the school board or other
authorities failed to implement substantial or significant pro-
visions of the IEP.” 200 F.3d at 349. Employing this standard,
the court concluded that conceded implementation failures did
not violate the IDEA because “the significant provisions of
[the child’s] IEP were followed, and, as a result, he received
an educational benefit.” Id.3
3The implementation failures in Bobby R. included not providing the
one hour a week of speech therapy required by the IEP for part of the
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Similarly, the Eighth Circuit held in Clark that the IDEA
is violated “if there is evidence that the school actually failed
to implement an essential element of the IEP that was neces-
sary for the child to receive an educational benefit.” 315 F.3d
at 1027 n.3. To determine if the “fact that no cohesive plan
was in place to meet [the child’s] behavioral needs” gave rise
to a statutory violation, the court considered both the shortfall
in services provided and evidence regarding the child’s prog-
ress in several areas. Id. at 1029. The court concluded that the
IDEA was indeed violated because the actions taken by the
school “did not appropriately address [the child’s] behavior
problem,” id. at 1028, and “any slight benefit obtained was
lost due to behavior problems that went unchecked and inter-
fered with [the child’s] ability to obtain a benefit from his
education.” Id.
[11] In accordance with the IDEA itself, the Court’s deci-
sion in Rowley and the decisions of our sister circuits, we hold
that a material failure to implement an IEP violates the IDEA.
A material failure occurs when there is more than a minor dis-
crepancy between the services a school provides to a disabled
child and the services required by the child’s IEP. Because the
parties debate whether Van Duyn’s skills and behavior
1994-95 academic year and not offering a special speech program during
the first two months of the 1996-97 academic year. See id. at 344, 348.
The school sought to compensate for these shortcomings by providing 25
hours of speech therapy during the summer of 1995 and offering supple-
mental services in 1996-97 (which were rejected by the parents). See id.
Bobby R. went on to consider whether the child had benefitted from the
IEP, holding that, despite some contrary testimony, “the objective evi-
dence of increased scores and grade levels” showed that the child had
received an educational benefit. Id. at 350. The court’s discussion of edu-
cational benefit was responsive to one of four factors that govern in the
Fifth Circuit. See Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118
F.3d 245, 247-48 (5th Cir. 1997). We, of course, are not bound to follow
the Cypress-Fairbanks factors, and we would disagree with Bobby R. if it
meant to suggest that an educational benefit in one IEP area can offset an
implementation failure in another.
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improved or deteriorated during the 2001-02 school year, we
clarify that the materiality standard does not require that the
child suffer demonstrable educational harm in order to pre-
vail. However, the child’s educational progress, or lack of it,
may be probative of whether there has been more than a
minor shortfall in the services provided. For instance, if the
child is not provided the reading instruction called for and
there is a shortfall in the child’s reading achievement, that
would certainly tend to show that the failure to implement the
IEP was material. On the other hand, if the child performed
at or above the anticipated level, that would tend to show that
the shortfall in instruction was not material. We also empha-
size that nothing in this opinion weakens schools’ obligation
to provide services “in conformity with” children’s IEPs.
§ 1401(9). IEPs are clearly binding under the IDEA, and the
proper course for a school that wishes to make material
changes to an IEP is to reconvene the IEP team pursuant to
the statute — not to decide on its own no longer to implement
part or all of the IEP. See §§ 1414(d)(3)(F), 1415(b)(3).4
4Our dissenting colleague criticizes the standard set forth here as incon-
sistent with the statutory text, “inappropriate for the judiciary” and “un-
workably vague.” Dissent at 11788. Although we share the dissent’s
concerns for the welfare of disabled schoolchildren, we respectfully dis-
agree with its proposed per se rule. First, there is no tension between the
IDEA and the materiality standard, because services to a disabled child are
still provided “in conformity with” or “in accordance with” the child’s IEP
if an implementation failure is not material. See 20 U.S.C. § 1401(9)(D);
34 C.F.R. § 300.323(c)(2). We do not believe we must interpret the IDEA
in such a way that even minor implementation failures automatically vio-
late the statute, nor has any other court done so. Second, although a mate-
riality standard lacks the precision of the dissent’s proposed per se rule,
determining “materiality” has been a part of judging for centuries — for
example, deciding whether a contractual breach is material. See, e.g.,
American Law Institute, Restatement (Second) of Contracts § 241 (1981)
(discussing concept of material breach); Krebs Hop Co. v. Livesley, 92 P.
1084, 1086-87 (Or. 1907) (same). For this reason, not even Van Duyn has
advocated a per se rule like the dissent’s; indeed, at oral argument his
counsel agreed that a standard akin to that endorsed in Bobby R. would be
satisfactory.
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4. Implementation of the IEP
Applying the standard for evaluating alleged IEP imple-
mentation failures here, we turn to the various areas in which
Van Duyn asserts that the District failed to implement his
IEP. Because both the ALJ and the district court have already
considered at length Van Duyn’s alleged implementation fail-
ures — and because we largely agree with their analyses —
we focus on what we understand to be Van Duyn’s weightiest
claims: that he did not receive sufficient math instruction, that
his behavior management plan was not implemented properly,
that work was not presented at his level and that he was not
placed in a self-contained classroom.5
[12] First, Van Duyn’s IEP required 8-10 hours of math
instruction per week. The ALJ found that he was not being
provided with sufficient instruction and therefore ordered that
he receive the “five hours per week of instruction in math that
he has not been receiving.” We agree that the initial five-hour
shortfall was a material implementation failure. Van Duyn
5On the remaining allegations of implementation failure, our conclu-
sions, briefly, are as follows: Van Duyn did receive daily reading and writ-
ing instruction, as required by his IEP, since he had language arts/reading
on red days and three relevant classes on white days. He did not work
toward all of the short-term objectives laid out in his IEP, but this failure
was not material given the extremely large number of such objectives. The
IEP did not require augmentative communication services to be provided
solely by regional staff, only that Van Duyn be exposed to such services
for two hours per month, which he was. The regional autism consultant’s
failure to visit the school twice-weekly was not material given the frequent
visits that she and the other autism consultants made. Van Duyn did take
part in gymnastics and swimming for approximately the required amount
of time per week. The middle school report cards largely resembled the
elementary school report cards used previously and tracked many of the
IEP’s goals and short-term objectives. And even though she was never
trained at the state level, Ms. Baxter did attend autism classes and meet
with people knowledgeable about Van Duyn’s experience with the condi-
tion. Accordingly, the District did not materially fail to implement Van
Duyn’s IEP in any of these areas.
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now claims that only 100 minutes of math instruction per
week were added in response to the ALJ’s order and that the
District was thus still not in compliance with the IEP. How-
ever, he makes no effort to rebut the testimony to the contrary
by Ms. Walker, who taught three of Van Duyn’s eight classes,
and Ms. Irby, his other main teacher. Ms. Walker testified that
Van Duyn worked on math in two red day classes, one white
day class and his “advisory time,” and therefore received the
requisite math instruction. Similarly, Ms. Irby testified that
Van Duyn used math computer programs in her classes for
roughly 100 minutes per week. We therefore hold that after
the District’s corrective actions, there was no material failure
to provide Van Duyn with the required amount of weekly
math instruction.6
Second, Van Duyn is correct that several elements of his
behavior management plan were not implemented in the same
way at the middle school as at the elementary school. The
daily behavior card was not used as strictly as it was before.
Social stories were never employed in Ms. Walker’s three
classes and were improperly used by Ms. Baxter and Ms.
Irby. And Van Duyn was not told to go to the “quiet room”
after all incidents of misbehavior, nor was the room ade-
quately equipped until just before the administrative hearing.
[13] Although we do not condone these failures to imple-
ment the behavior management plan, we conclude that they
were not material for several reasons. First, the IEP did not
clearly describe how the daily behavior card, social stories
and quiet room were used at the elementary school, nor did
it require that they be used in the same way at the middle
6Our conclusion is bolstered by the fact that Van Duyn’s math skills
appear to have improved in 2001-02. Ms. Walker testified that he made
progress toward his measurable annual goal in math and that “[h]e’s really
good with adding. He’s fast. He is, he’s like a little machine on some
problems.” Ms. Walker added that Van Duyn’s IEP team was looking to
add new, more difficult math goals for the 2002-03 calendar year.
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school. It is undisputed that the behavior management plan
was not implemented identically at the two schools, but the
IEP did not say that it had to be. Second, the middle school
did employ many of the techniques outlined in the behavior
management plan, even if not quite as Van Duyn envisioned.
Third, there is evidence that the elementary school behavior
management plan was inappropriate for the middle school
context. Van Duyn’s former aide testified that “[i]t looks to
me like the system that we used at South Baker doesn’t work
at the middle school, and so it’s not being used the same.”
Finally, Van Duyn’s behavior appears to have improved in
2001-02. The school speech therapist stated that while “in the
previous [reports] it’s mentioned that Chris doesn’t notice
others in his environment,” “[t]he following year we see that
Chris does notice others in his environment and is engaging
more.” The school psychologist added that Van Duyn was
being sent to the quiet room only about once per month at the
middle school, a much lower rate than at the elementary
school.
[14] Next, there is some ambiguity in the record about
whether, as required by the IEP, work was presented at Van
Duyn’s level. On the one hand, Ms. Baxter testified that what
Van Duyn would learn about on any given day depended on
what the class was taught that day. On the other hand, his two
main teachers, Ms. Walker and Ms. Irby, testified that he was
never subjected to lecture-style teaching and generally
received one-on-one instruction. Ms. Walker described “filter-
[ing] around to the students” while Ms. Irby stated that Van
Duyn’s instruction was largely one-on-one with her or the
assistant. On this conflicting record, we cannot conclude that
the District materially failed to present work at Van Duyn’s
level. We also note that there is no evidence that his educa-
tional progress was hindered as a result of exposure to materi-
als that were too advanced for him.
Finally, the parties dispute the meaning of “self-contained
sp[ecial] ed[ucation] room” and whether Van Duyn was pro-
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vided with such placement. He contends that his IEP required
a learning environment like the one he enjoyed at the elemen-
tary school, with a single classroom where highly disabled
students receive instruction individually or in small groups
and there is complete flexibility as to the timing and content
of instruction. See Ash v. Lake Oswego Sch. Dist. No. 7J, 766
F. Supp. 852, 856 (D. Or. 1991) (self-contained classroom
contains 8-12 students with one teacher and two aides). The
District, however, asserts that a self-contained classroom is a
“service” rather than a “placement,” and exists whenever a
student spends more than 60 percent of his time in a special
education classroom.
[15] Even under Van Duyn’s definition, which appears
nowhere in the IEP and is at odds with Oregon practice as
well as the testimony of one of his own witnesses, we hold
that the District did not materially fail to provide him with a
self-contained classroom. His class sizes varied from 7 to 15
students (a range with an almost identical midpoint to the 8-
12 range cited in Ash), and there were always one teacher and
one aide present (comparable to the one teacher and two aides
in Ash). Whereas the student-teacher/aide ratio was somewhat
higher in the middle school than in Ash, it is significant that
Ms. Baxter was Van Duyn’s personal full-time aide. There is
no indication that the two aides in Ash were specifically des-
ignated for individual students.
Furthermore, there was substantial flexibility in the instruc-
tion that Van Duyn received at the middle school. While he
was on a block schedule with set times for classes, he could
take breaks whenever they were necessary, he received cons-
tant attention from Ms. Baxter and frequent one-on-one
instruction from Ms. Walker and Ms. Irby and the projects he
worked on were typically unrelated to his classes’ nominal
subject matter. This may not have been quite as beneficial a
learning environment as the elementary school, but we cannot
conclude that it constituted a material failure to provide Van
Duyn with a self-contained classroom.
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[16] We therefore hold that the District did not materially
fail to implement any provisions in Van Duyn’s IEP (with the
exception of the math instruction requirement, which we hold
was satisfied after the ALJ’s order).
D. Attorney’s Fees
Van Duyn requests two remedies from this court: compen-
satory education and attorney’s fees. No compensatory educa-
tion is warranted because he has failed to establish any
material failure by the District in implementing his IEP. Con-
trary to the district court, however, we hold that Van Duyn is
entitled to reasonable attorney’s fees for the administrative
hearing to the extent he partially prevailed in that proceeding,
but only for counsel other than his attorney-mother.
[17] Under the IDEA, “the court, in its discretion, may
award reasonable attorney’s fees as part of the costs . . . to a
prevailing party who is the parent of a child with a disability.”
20 U.S.C. § 1415(i)(3)(B)(i) (emphasis added). A prevailing
party is one who “succeed[s] on any significant issue in litiga-
tion which achieves some of the benefit the parties sought in
bringing the suit.” Parents of Student W. v. Puyallup Sch.
Dist., No. 3, 31 F.3d 1489, 1498 (9th Cir. 1994) (internal quo-
tation omitted). The success must materially alter the parties’
legal relationship, cannot be de minimis and must be causally
linked to the litigation brought. Id.; see also Park v. Anaheim
Union High Sch. Dist., 464 F.3d 1025, 1034-37 (9th Cir.
2006).
Under this standard, Van Duyn was not the prevailing party
at the district court level because that court affirmed the
ALJ’s decision in its entirety and refused to grant him any
additional relief. Van Duyn also was not the prevailing party
in his challenge to his 2002-03 IEP before the Oregon Depart-
ment of Education because the Department did not revisit the
contested IEP but rather ordered the parties to work together
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to formulate a new IEP for the 2003-04 school year. Nor, of
course, is he the prevailing party here.
[18] We hold, however, that Van Duyn was the prevailing
party at the administrative hearing to the extent the ALJ ruled
in his favor regarding the amount of math instruction he was
due. The amount of math instruction was a “significant issue”
in the proceeding, and the remedy the ALJ ordered — an
additional five hours of math instruction per week — clearly
produced “some of the benefit” that Van Duyn sought. See
Parents of Student W., 31 F.3d at 1498. The District is correct
that the math instruction issue was only one issue out of 11
raised at the administrative hearing, but there is no reason to
view it as less important than Van Duyn’s other claims;
indeed, it appears weightier than several of them. The relevant
point is that he prevailed on the issue’s merits and obtained
a remedy — the extra weekly math instruction — that materi-
ally altered his legal relationship with the District. The Dis-
trict argues that because the ALJ ordered only the provision
of services already required by the IEP, there was no change
in the parties’ existing legal relationship. We reject this argu-
ment because the ALJ’s order created a legal obligation for
the District to provide services that it had not previously been
offering. Were the District’s argument accepted, it would
mean that a plaintiff in an implementation failure suit could
win attorney’s fees only if he was awarded not only the reme-
dies mandated by his IEP, but also compensatory education
(or other relief) not called for by his IEP.
[19] The District correctly argues, however, that attorney’s
fees should not be granted to parent attorneys who represent
their children in IDEA proceedings. See Ford v. Long Beach
Unified Sch. Dist., 461 F.3d 1087, 1090 (9th Cir. 2006)
(“Next, we must determine whether the IDEA authorizes
attorneys’ fees for attorney-parents. We join three other cir-
cuits in concluding that it does not.”). Accordingly, Van Duyn
is entitled to attorney’s fees for the administrative hearing, but
only for counsel other than his mother. We remand to the dis-
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trict court to determine the appropriate sum. On remand, the
court has discretion to consider that Van Duyn prevailed on
one issue at the administrative hearing but lost on all the oth-
ers. See 20 U.S.C. § 1415(i)(3)(B) (“[T]he court, in its discre-
tion, may award reasonable attorney’s fees . . . .” ) (emphasis
added); Aguirre v. Los Angeles Unified Sch. Dist., 461 F.3d
1114, 1118 (9th Cir. 2006) (“ ‘[T]he level of a[n IDEA] plain-
tiff’s success is relevant to the amount of fees to be award-
ed.’ ”) (quoting Hensley v. Eckerhart, 461 U.S. 424, 430
(1983)).
IV. Conclusion
We hold that any failures by the District to implement Van
Duyn’s IEP did not constitute violations of the IDEA’s proce-
dural requirements. We also hold that any such failures were
not material. A material failure to implement an IEP occurs
when there is more than a minor discrepancy between the ser-
vices a school provides to a disabled child and the services
required by the child’s IEP. Applying that standard here, the
services the District provided were not materially different
from what was required by the IEP (again with the exception
of the math instruction provided prior to the ALJ’s order).
Finally, because Van Duyn partially prevailed in the adminis-
trative proceeding, he is to that extent entitled to reasonable
attorney’s fees, but not for his mother’s legal services. The
parties shall bear their own costs on appeal.
AFFIRMED IN PART AND REVERSED IN PART;
REMANDED.
FERGUSON, Circuit Judge, dissenting:
I.
The majority involves the judiciary in determining the “ma-
teriality” of a school district’s failure to implement a student’s
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Individualized Education Program (“IEP”). This standard is
inconsistent with the text of the Individuals with Disabilities
Education Act (“IDEA”), inappropriate for the judiciary, and
unworkably vague. Given the extensive process and expertise
involved in crafting an IEP, the failure to implement any por-
tion of the program to which the school has assented is neces-
sarily material. Therefore, I respectfully dissent.
II.
Under the IDEA, once a school district identifies or
assesses a student as learning disabled, it must convene an
IEP Team to determine the special needs of the child. 20
U.S.C. § 1414. The IEP Team consists of the child, the child’s
parents, at least one regular education teacher (if mainstream
participation is contemplated), at least one special education
teacher, a specially qualified representative of the school dis-
trict, an individual who can interpret the instructional implica-
tions of evaluation results, and other individuals with
expertise regarding the child’s needs and disability.
§ 1414(d)(1)(B).
Once convened, this IEP Team meets as many times as
necessary to draft an IEP for the student. § 1414(d). The IEP
is the central document that guides a child’s special education.
It details the child’s present levels of academic achievement,
his or her goals, the criteria for measuring progress, and the
services and accommodations that the school has committed
to providing. § 1414(d)(1)(A)(i). An IEP is the product of an
extensive process and represents the reasoned conclusion of
the IEP Team that the specific measures it requires are neces-
sary for the student to receive a free appropriate public educa-
tion (“FAPE”). The school is required to implement the IEP
as part of the IDEA’s broad, overarching purpose “to ensure
that all children with disabilities have available to them a free
appropriate public education.” § 1400(d)(1)(A).
A school district’s failure to comply with the specific mea-
sures in an IEP to which it has assented is, by definition, a
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denial of FAPE, and, hence, a violation of the IDEA. See
§ 1401(9)(D) (“The term ‘free appropriate public education’
means special education and related services that . . . are pro-
vided in conformity with the individualized education pro-
gram.”) (emphasis added); M.L. v. Fed. Way Sch. Dist., 394
F.3d 634, 642 (9th Cir. 2005) (quoting statutory definition of
FAPE); 34 C.F.R. § 300.323(c)(2) (“Each public agency must
ensure that . . . special education and related services are
made available to the child in accordance with the child’s
IEP.”) (emphasis added).
Judges are not in a position to determine which parts of an
agreed-upon IEP are or are not material.1 The IEP Team, con-
sisting of experts, teachers, parents, and the student, is the
entity equipped to determine the needs of a special education
student, and the IEP represents this determination. Although
judicial review of the content of an IEP is appropriate when
the student or the student’s parents challenge the sufficiency
of the IEP, see, e.g., M.L., 394 F.3d at 642, such review is not
appropriate where, as here, all parties have agreed that the
content of the IEP provides FAPE. Having so agreed, the
school district must “provide[ ] [special education and related
services] in conformity with the individualized education pro-
gram.” 20 U.S.C. § 1401(9)(D).
Instead of trying to understand how material a failure is, we
must assume that the IEP Team knew what it was doing when
it settled on a specific educational service. Each IEP Team
chooses specific services with specific quantities and dura-
tions for the purpose of providing the student with FAPE. If
the IEP Team had thought another, lesser service would be
sufficient to provide FAPE, it would have included that ser-
vice in the IEP.
1The majority contends that “determining ‘materiality’ has been a part
of judging for centuries.” See maj op. at 11780 n.4. Curiously, it gives the
example of contract law to prove this point. Id. Yet only a few pages ear-
lier, it states, in no uncertain terms, that “[a]n IEP is not a contract” and
that contract law is irrelevant in cases like this one. Id. at 11777.
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Of course, if after implementing the IEP, the school district
believes that portions of the program are not essential to pro-
viding FAPE, it is free to amend the IEP through the required
channels, including a reconvening of the IEP Team.
§ 1415(b)(3). But allowing the school district to disregard
already agreed-upon portions of the IEP would essentially
give the district license to unilaterally redefine the content of
the student’s plan by default. Such license undermines the
collaborative role of the IEP Team and ignores the parental
participation provisions of the IDEA. § 1414(d)(3)(A)(ii), (e).
The majority’s standard also suffers from vagueness. It
holds that “[a] material failure occurs when there is more than
a minor discrepancy between the services provided to a dis-
abled child and those required by the IEP.” It provides little
guidance as to what constitutes a minor discrepancy. If an IEP
requires ten hours per week of math tutoring, would the provi-
sion of only nine hours be “more than a minor discrepancy”?
Eight hours? Seven hours? Because most IEPs contain such
quantitative requirements for special education services, the
majority’s standard will provide little guidance in resolving
these implementation issues.
III.
In the present case, no one disputes that the district failed
to fully implement the IEP. In particular, the IEP required,
inter alia, that (1) Christopher’s aide and teacher would be
trained in autism by the State; (2) Christopher would receive
augmentative communication services for two hours per
month from a regional provider; (3) the Autism Consultant
would visit Christopher’s school twice weekly for the “first
few months;” (4) Christopher’s report card would use his cur-
rent goals; (5) all work would be presented at Christopher’s
level; and (6) the school would fully implement Christopher’s
Behavior Management Plan. None of these services was pro-
vided as specified in the IEP.
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At Christopher’s initial hearing challenging the implemen-
tation of the IEP, the Administrative Law Judge properly
began its inquiry with the question, “Did the District fail to
implement [Christopher’s] Individualized Education Pro-
gram?” It then went a step further, however, asking, “If so,
did that failure result in a loss of educational opportunity such
that [Christopher] has been denied a Free and Appropriate
Public Education.” The district court and the majority appear
to follow this same sequence of questions. Yet, only the first
question is relevant. Having determined that the school dis-
trict failed to implement the IEP, our inquiry must end.
The IEP Team crafted the IEP with an eye toward provid-
ing Christopher with FAPE. Any subsequent deviation is nec-
essarily material. For example, Christopher’s IEP Team
concluded that the aide who spent all day, every day with this
severely autistic child must be trained by the State in working
with autistic children. If the IEP Team had determined, as the
majority has, that it was sufficient to have the aide attend
“local autism classes and meet with individuals who had
worked with [Christopher] in the past,” it would have explic-
itly stated as much in the IEP. The majority also finds it
excusable that the school district did not work toward all of
Christopher’s short-term objectives, “given the extremely
large number of such objectives.” If the IEP Team thought
fewer objectives were sufficient to provide FAPE, it could
have included fewer.
Not having met with Christopher and worked extensively
on his educational needs, this panel is not in a position to
determine whether any of these failings was material. We do
know, however, that Christopher’s IEP Team, made up of
twelve members including representatives of the district,
thought that each of these measures was sufficiently important
to be included in the IEP. We should not now second-guess
whether such inclusions, or the failure to provide them, were
material.
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IV.
I would reverse the district court and hold that the school
district’s failure to fully implement the IEP, to which it
expressly assented, violates the IDEA.
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