                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 E.M., a minor, by and through his                No. 12-15743
 parents, E.M. and E.M.,
                   Plaintiff-Appellant,             D.C. No.
                                                 3:06-cv-04694-
                     v.                              MMC

 PAJARO VALLEY UNIFIED SCHOOL
 DISTRICT OFFICE OF                                 OPINION
 ADMINISTRATIVE HEARINGS,
                Defendant-Appellee.


      Appeal from the United States District Court
         for the Northern District of California
   Maxine M. Chesney, Senior District Judge, Presiding

                    Argued and Submitted
          April 7, 2014—San Francisco, California

                       Filed July 15, 2014

     Before: Mary M. Schroeder, Kermit V. Lipez*, and
          Consuelo M. Callahan, Circuit Judges.

                  Opinion by Judge Callahan


  *
    The Honorable Kermit V. Lipez, Senior Circuit Judge for the First
Circuit, sitting by designation.
2                 E.M. V. PAJARO VALLEY USD

                           SUMMARY**


                          Education Law

   The panel affirmed the district court’s judgment on
remand in an action brought by a student, by and through his
parents, under the Individuals with Disabilities Education
Improvement Act of 2004.

    The student’s school district determined in 2005 that,
despite his learning disability of auditory processing disorder
or central auditory processing disorder, the student was not
eligible for special education services. In 2008, as a result of
further testing procured by his parents, the school district
determined that the student did qualify for special education.
Shortly thereafter, he moved to another school district, which
also recognized that he qualified for special education.

   The panel held that the student failed to show that the
school district acted unreasonably in determining in 2005 that
he did not qualify for special education services under the
“specific learning disability” category because he lacked the
required severe discrepancy between his intellectual ability
and his achievement.

    The Department of Education, as amicus curiae, took the
position that a central auditory processing disorder is eligible
for consideration for benefits under the “other health
impairment” category. The panel held that this position
merited deference. The panel nonetheless determined that the

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              E.M. V. PAJARO VALLEY USD                  3

student failed to show that the school district acted
unreasonably in not considering him for benefits under the
“other health impairment” category in 2005.


                       COUNSEL

Mandy G. Leigh (argued), Jay T. Jambeck, and Sarah J.
Fairchild, Leigh Law Group, San Francisco, California, for
Plaintiff-Appellant.

Laurie E. Reynolds and Kimberly A. Smith (argued), Fagen
Friedman & Fulfrost, Oakland, California, for Defendant-
Appellee.

Philip H. Rosenfelt, United States Department of Education,
and Thomas E. Perez, Mark L. Gross, and Jennifer L.
Eichhorn (argued), United States Department of Justice,
Washington, D.C., Amicus Curiae United States of America.
4               E.M. V. PAJARO VALLEY USD

                          OPINION

CALLAHAN, Circuit Judge:

     In 2004, before E.M. entered the fourth grade, he was first
tested for a learning disability. Through this lengthy
litigation it has been established that E.M. has an auditory
processing disorder or a central auditory processing disorder.
However, in the fall of 2004 and the spring of 2005, E.M.’s
school district, the Pajaro Valley Unified School District
(“PVUSD”) tested E.M. and determined that, despite his
learning disability, E.M. was not eligible for special
education services. Subsequently, as a result of further
testing procured by E.M.’s parents, PVUSD determined in
February 2008 that E.M. did qualify for special education.
Shortly thereafter, E.M. moved to another school district
which also recognized that he qualified for special education.

    Meanwhile, E.M. filed an administrative complaint with
the Special Education Division of the California Office of
Administrative Hearings. When the Administrative Law
Judge (“ALJ”) issued a decision in favor of PVUSD, E.M.,
through his parents (the “Plaintiffs”), filed a complaint in the
United States District Court for the Northern District of
California alleging that E.M. had been denied a “Free and
Appropriate Public Education” as set forth in the Individuals
with Disabilities Education Improvement Act of 2004
(“IDEA”). 20 U.S.C. §§ 1400, et seq. The district court
granted summary judgment in favor of PVUSD, Plaintiffs
appealed, and we issued an opinion affirming in part,
reversing in part and remanding. E.M. v. Pajaro Valley
Unified Sch. Dist., 652 F.3d 999 (9th Cir. 2011). On remand
the district court again denied Plaintiffs any relief and further
ruled that E.M.’s central auditory processing disorder could
                E.M. V. PAJARO VALLEY USD                       5

not be considered an “other health impairment” under the
applicable federal and state regulations. See 34 C.F.R.
§ 300.7(c)(9) (2005); Cal. Code Regs. Tit. 5, § 3030(f)
(2005).1

    On this appeal we address three primary issues. First, we
conclude that Plaintiffs have failed to show that PVUSD
acted unreasonably in determining in 2005 that E.M. did not
qualify for special education services under the “specific
learning disability” category. See 20 U.S.C. § 1403(1)(A).
Second, we conclude that the Department of Education’s
position that a central auditory processing disorder is eligible
for consideration for benefits under the “other health
impairment” category merits deference.            Finally, we
determine that Plaintiffs have failed to show that PVUSD
acted unreasonably in not considering E.M. for benefits under
the “other health impairment” category in 2005.
Accordingly, we affirm the denial of relief to Plaintiffs.

                                I

    A. PVUSD’s Initial Assessment of E.M.

    E.M. enrolled in PVUSD as a kindergarten student in
1999. Plaintiffs assert that E.M. struggled at school and that
PVUSD should have referred him for a special education
assessment as early as December 2002, pursuant to its “child
find” obligation. This provision of the IDEA requires school
districts to identify children with disabilities and to ensure




   1
     Both the federal and state regulations have been subsequently
amended.
6                     E.M. V. PAJARO VALLEY USD

that each child is evaluated and provided appropriate special
education services.2

    In the summer of 2004, before E.M. entered the fifth
grade, Plaintiffs had E.M. tested by psychologist Dr. Roz
Wright, who administered the Weschsler Intelligence Scale
for Children (3d ed.) and the Woodcock Johnson Tests of
Achievement-III (“WISC”). Dr. Wright estimated E.M.’s
intelligence quotient (“IQ”) to be 104, based on the test.
Plaintiffs then requested that PVUSD evaluate E.M. and
submitted Dr. Wright’s assessment.

    In October 2004, PVUSD convened a meeting of E.M.’s
Individualized Education Program (“IEP”) team. In addition
to Dr. Wright’s assessment, the IEP team considered the
results of additional tests administered by Leslie Viall,
PVUSD’s psychologist.

    Ms. Viall, who had more than fifteen years of experience
administering educational assessments of children, testified
that she thought the WISC score of 104 was a valid measure
of E.M.’s intellectual ability. She stated that in October 2004,


    2
        20 U.S.C. § 1412(a)(3)(A) states:

             All children with disabilities residing in the State,
             including children with disabilities who are homeless
             children or are wards of the State and children with
             disabilities attending private schools, regardless of the
             severity of their disabilities, and who are in need of
             special education and related services, are identified,
             located, and evaluated and a practical method is
             developed and implemented to determine which
             children with disabilities are currently receiving needed
             special education and related services.
               E.M. V. PAJARO VALLEY USD                    7

she had given E.M. the Kaufman Assessment Battery for
Children test (“K-ABC” test) and that E.M. had obtained a
higher score of 111. Ms. Viall explained that she
administered the K-ABC test because the parents’ assessor,
Dr. Wright, had recently administered the WISC test and that
re-administering the same test less than four months later
would have produced an invalid score. When the K-ABC test
produced a significantly higher score, Ms. Viall administered
a third intelligence test, the Test of Nonverbal Intelligence
(“TONI”), on which E.M. scored a 98. Because E.M.’s TONI
score was consistent with his performance on the WISC,
rather than the higher score on the K-ABC, Ms. Viall
determined that 104 was the most reliable measure of E.M.’s
intellectual ability.

    In 2005, to qualify for special education under the
“specific learning disability” (sometimes referred to as
“SLD”) category in California, a child had to meet three
requirements: (1) “there must be a severe discrepancy
between intellectual ability and achievement in oral
expression, listening comprehension, written expression,
basic reading skills, reading comprehension, mathematics
calculation, or mathematical reasoning”; (2) “the severe
discrepancy must be due to a disorder in one or more of the
basic psychological processes and must not be primarily the
result of an environmental, cultural, or economic
disadvantage”; and (3) “the discrepancy cannot be
ameliorated through other regular or categorical services
offered within the regular education program.” Cal. Educ.
Code § 56337 (2005).

   PVUSD determined that E.M. had not demonstrated the
requisite “severe discrepancy between intellectual ability and
achievement.” The applicable California regulations defined
8              E.M. V. PAJARO VALLEY USD

a severe discrepancy as a difference of at least 22.5 points,
adjusted by 4 points, between a child’s ability and
performance. Faced with three scores, 111 on the K-ABC,
104 on the WISC, and 98 on the TONI, PVUSD opted to use
the middle score, 104 on the WISC. E.M.’s lowest standard
score in any academic area was 87 on listening
comprehension. The discrepancy between 87 and 104 was
only 17 points, not sufficient to constitute a severe
discrepancy.

    B. Plaintiffs’ Initial Proceedings Before the
       Administrative Law Judge and the District Court

    When PVUSD denied E.M. special education benefits,
Plaintiffs filed an administrative complaint with the Special
Education Division of the California Office of Administrative
Hearings. A hearing was held, and on May 2006, the ALJ
issued a final decision denying Plaintiffs any relief.

     Plaintiffs then commenced this action in the United States
District Court for the Northern District of California. In
October 2007, the district court denied cross-motions for
summary judgment and remanded the case to the ALJ. The
ALJ was asked to “set forth more completely his reasoning as
to why the WISC test was favored over the K-ABC, as well
as his approach to evaluating all of the quantitative test data
in light of the mixed results of that data.”

    Meanwhile, Plaintiffs had E.M. tested by Dr. Cheryl
Jacques, who estimated his IQ to be 110. PVUSD then
retested E.M. for eligibility for special education and found
E.M.’s IQ to be 114. This led PVUSD to determine in
February 2008 that E.M. was eligible for special education
benefits. Shortly thereafter, E.M. moved to the Fullerton
                  E.M. V. PAJARO VALLEY USD                              9

Joint Union High School District, which also determined that
he was eligible for special education services.

    On remand, the ALJ again determined that Plaintiffs were
not entitled to any relief. Plaintiffs appealed to the district
court.

    On August 27, 2009, the district court granted PVUSD’s
motion for summary judgment. In doing so, the court first
agreed with the ALJ that Ms. Viall was credible and her
reasoning persuasive.3 The court noted the irony that PVUSD
relied on the diagnostic score provided by Plaintiffs, while
Plaintiffs claimed that PVUSD should have used its own K-
ABC scores. The district court further agreed with the ALJ
that PVUSD had administered multiple tests to E.M. and had
used the totality of the results to arrive at its ultimate
determination of ineligibility.


  3
     The district court noted that Ms. Viall had stated that she felt “the
WISC is a test of choice and it showed consistency with the TONI, and [I]
didn’t use the full scale score because of [E.M.’s] bilingual background,
so it seemed more valid to use the performance score.” The court also
observed that Ms. Viall had indicated that she thought E.M.’s score on the
K-ABC was inflated because it was not consistent with the WISC or
TONI scores, and testified that she “no longer used the K-ABC because
she had found that the test failed to provide ‘good information for looking
at student’s processing.’” The court further observed that “Ms. Viall had
conferred with other educators, who had confirmed the possibility of
inflated K-ABC scores, and at the time of the due process hearing she
believed that ‘the WISC is a much more researched and much more
reliable and valid measure.’” The court discounted Dr. Wright’s
testimony to a certain extent because she did not observe E.M. in the
classroom, review his school records, or speak with his teachers, and Dr.
Wright’s assessment “was intended to serve an entirely different purpose,
namely a finding of eligibility under the ADA that would be relevant to
the family’s immigration proceedings.”
10                 E.M. V. PAJARO VALLEY USD

    The district court further noted that “viewed as a whole,
the observational and anecdotal evidence describes a student
who was distracted easily but who also responded to various
forms of classroom intervention.” It opined that had E.M.
“been able to complete assignments and homework on a more
consistent basis, it seems likely that he would have been a
consistently average to above-average performer.”

    Finally, addressing Plaintiffs’ allegation that PVUSD
failed to perform assessments with respect to E.M.’s auditory
processing, hearing and behavior, the district court
commented that at least one auditory processing test was
administered by Ms. Viall, and that PVUSD’s resource
specialist “conducted the Brigance test in both Spanish and
English as part of the initial assessment, and this test arguably
addresses auditory processing through a subtest involving
sentence repetition.”4

      C. Plaintiffs’ Initial Appeal to the Ninth Circuit

    Plaintiffs appealed, and we issued an opinion affirming in
part and reversing in part. E.M. v. Pajaro Valley Unified Sch.
Dist., 652 F.3d 999 (9th Cir. 2011). We recognized that
“school districts have discretion in selecting the diagnostic
tests they use to determine special education eligibility.” Id.
at 1003. Noting the different tests used to evaluate E.M., we

  4
    The district court related that “Ms. Viall testified that E.M. did not
appear to suffer from auditory processing difficulties because he started
tasks immediately when given oral instructions, and the WISC-III
assessment had not shown a processing disorder.” She further stated that
“the fact that E.M. had progressed to an A-level student in certain
academic areas, as well as his improvement in standardized math skills to
the basic level, are highly probative of an ability to succeed in the regular
classroom environment.”
                     E.M. V. PAJARO VALLEY USD                      11

held 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.” Id. at 1004.

    We did not determine whether PVUSD’s choice was
reasonable because we determined that the district court had
erred in excluding Dr. Jacques’s 2007 report.5 Id. at 1006.
Accordingly, the district court was instructed on remand to
consider whether Dr. Jacques’s report, as well as PVUSD’s
2008 assessment of E.M., were “relevant to the determination
whether PVUSD met its obligations to E.M.” Id.

    We then held, over a dissent, that Plaintiffs had not
waived their assertion that the district court should have
considered whether E.M.’s auditory processing disorder
qualified him for special education as a child with an “other
health impairment.” Id. at 1006. We remanded the case to
the district court “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.” Id at 1007.




 5
     We explained:

          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.

652 F.3d at 1006.
12                 E.M. V. PAJARO VALLEY USD

      D. The District Court’s Opinion on Remand

    On remand, the district court read our opinion as holding
that “E.M. had a ‘disorder in a basic psychological process,’
specifically, ‘an auditory processing disorder.’” However,
the court found that we had not reached “the issue of whether
PVUSD’s choice among test scores was reasonable; rather
[we] remanded the matter for further consideration of that
issue.” The district court proceeded to determine whether
Plaintiffs had shown that there was a “severe discrepancy”
between E.M.’s intellectual ability and his achievement.

    The district court noted that all agree that E.M.’s lowest
academic standard score was 87. The court then reviewed the
three test scores, and concluded that the ALJ’s use of the
WISC’s score of 104, and the consequential finding that there
was no severe discrepancy (only 17 points difference), were
“thorough and careful” and entitled to deference. The court
further conducted its own de novo review of the evidence in
the administrative record, and concluded that Plaintiffs had
not met their burden of showing that it was unreasonable for
PVUSD to use the WISC test score.

    The district court agreed with the ALJ that the school
psychologist’s testimony was more persuasive than Dr.
Wright’s perspective because of her experience
administrating educational assessments to children and her
actual knowledge of E.M.6 The court further found that


 6
     The ALJ had reasoned:

          Leslie Viall’s testimony established that the
          performance score on the WISC-III of 104 is the valid
          measure of [E.M.’s] intellectual ability. Ms. Viall is a
                E.M. V. PAJARO VALLEY USD                           13

neither Dr. Jacques’s report nor the PVUSD’s 2008
assessment of E.M. altered its determination that PVUSD’s
2005 assessment of E.M. was not unreasonable.

    Turning to the issue of whether E.M. could qualify for
special education on the basis of having an “other health
impairment,” the district court noted that 20 U.S.C.
§ 1401(3)(A)(i) listed nine defined categories such as
“intellectual disabilities,” “autism,” and “specific learning
disabilities,” and a tenth category described broadly as “other
health impairment.” At the time of the PVUSD assessment,
“other health impairment” (sometimes referred to as “OHI”)
was defined as follows:

       Other health impairment means having
       limited strength, vitality or alertness to
       environmental stimuli, that results in limited



       credentialed school psychologist with more than 15
       years’ experience administering educational
       assessments to children. She testified that the WISC is
       the most common intelligence quotient test
       administered to children, as well as the best predictor of
       school performance. Ms. Viall administered the K-
       ABC when she assessed [E.M.] in October 2004 only
       because the parents’ assessor, Dr. Wright, had recently
       administered the WISC-III.          If Ms. Viall had
       administered the WISC-III less than four months after
       Dr. Wright’s administration, Ms. Viall would have
       obtained an invalid score. When Ms. Viall obtained a
       significantly higher score on the K-ABC (111), she
       administered another intelligence test, the [TONI,] to
       obtain more information. [E.M.’s] TONI score of 98
       was consistent with [E.M.’s] performance score on the
       WISC-III, not the inflated score on the K-ABC.
14                 E.M. V. PAJARO VALLEY USD

          alertness with respect to the educational
          environment, that –

          (i) Is due to chronic or acute health problems
          such as asthma, attention deficit disorder or
          attention deficit hyperactivity disorder,
          diabetes, epilepsy, a heart condition,
          hemophilia, lead poisoning, leukemia,
          nephritis, rheumatic fever, and sickle cell
          anemia; and

          (ii) Adversely affects a child’s educational
          performance.

34 C.F.R. § 300.7(c)(9)).

    Despite Plaintiffs’ contrary assertion, the district court did
not find any decisions by courts or hearing officers
specifically holding that auditory processing disorders qualify
as OHIs. Accordingly, the court approached the question as
a matter of first impression, using canons of construction.
The court determined that “specific learning disability” and
“other health impairment” concerned two different categories
of impairment.7 The district court, noting that the statute


 7
     The district court explained:

          In the regulations, “specific learning disability” is
          defined to mean “a disorder in one or more of the basic
          psychological processes involved in understanding or
          in using language,” see 34 C.F.R. § 300.7(c)(10)
          (2005); Cal. Code Regs. tit. 5, § 3030(j) (2005),
          provided such disorder results in a “severe discrepancy
          between [the child’s] intellectual ability and
          achievement,” see Cal. Code Regs. tit. 5, § 3030(j)
                   E.M. V. PAJARO VALLEY USD                            15

included a non-exhaustive list, employed the dictionary
meaning of “other” as “another,” and concluded that because
a qualifying auditory processing disorder is a “specific
learning disability,” “it necessarily follows that an auditory
processing disorder cannot at the same time be an ‘other
health impairment.’” The court expressed concern that a
contrary finding would render superfluous the requirement of
showing severe discrepancy to qualify for benefits under the
“specific learning disability” category.8


          (2005); see also Cal. Educ. Code § 56337 (2005). A
          “specific learning disability” thus is “specific” to
          disorders adversely affecting the processing of the
          written and/or spoken word. As is set forth in the
          applicable regulations, such processing disorders
          expressly include “auditory processing” disorders. See
          Cal. Code Regs. tit. 5, § 3030(j)(1) (2005).

As defined in the regulations, an “other health impairment” is a “chronic
and acute health problem” that “[a]dversely affects a child’s educational
performance.” See 34 C.F.R. § 300.7(c)(9) (2005); see also Cal. Code
Regs. tit. 5, § 3030(f) (2005) (providing pupil is entitled to special
education where pupil has “chronic and acute health problem[ ]” that
“adversely affects a pupil’s educational performance”).
 8
     The district court reasoned:

          A contrary finding would effectively negate and render
          superfluous the statutory and regulatory provisions that
          a “disorder in a basic psychological process” qualifies
          as a “specific learning disability” only if, as a result of
          such disorder, a “severe discrepancy” exists between
          the child’s intellectual ability and academic
          achievement. See Cal. Educ. Code § 56337 (2005);
          Cal. Code Regs. tit. 5, § 3030(j) (2005); see also Hart
          v. McLucas, 535 F.2d 516, 519 (9th Cir. 1976) (holding
          “in the construction of administrative regulations, as
          well as statutes, it is presumed that every phrase serves
16              E.M. V. PAJARO VALLEY USD

    Having concluded that PVUSD had reasonably
determined that Plaintiffs had failed to show a “severe
discrepancy” between E.M.’s intellectual ability and
academic achievement in 2005, and that E.M.’s auditory
processing disorder could not be an “other health
impairment,” the district court granted judgment in favor of
PVUSD. Plaintiffs filed a timely notice of appeal.

                                 II

    A district court’s compliance with our mandate is
reviewed de novo. United States v. Paul, 561 F.3d 970, 973
(9th Cir. 2009); United States v. Kellington, 217 F.3d 1084,
1092 (9th Cir. 2000). We also review de novo “the district
court’s decision that the school district complied with the
IDEA.” K.D. v. Dep’t of Education, 665 F.3d 1110, 1117
(9th Cir. 2011); N.B. v. Hellgate Elementary Sch. Dist.,
541 F.3d 1202, 1207 (9th Cir. 2008). However, we give “due
weight to judgments of education policy when reviewing state
hearings and must take care to not substitute [our] own
notions of sound educational policy for those of the school
authorities [we] review.” K.D., 665 F.3d at 1117 (internal


       a legitimate purpose and, therefore, constructions which
       render regulatory provisions superfluous are to be
       avoided”). If a “specific learning disability” were
       deemed to constitute an “other health impairment” as
       well, a child with a specific learning disability would
       need to show only a generalized “adverse[ ]” effect on
       academic performance. See 34 C.F.R. § 300.7(c)(9)
       (2005). As PVUSD argued at the hearing, and E.M. did
       not dispute, the “adversely affects” standard and the
       “severe discrepancy” standard are different. E.M. fails
       to explain why Congress, for purposes of the IDEA,
       would have intended the same impairment be assessed
       under two tests of differing magnitude.
               E.M. V. PAJARO VALLEY USD                    17

quotation marks omitted). Although “[t]he extent of
deference given to the state hearing officer’s determination is
within our discretion,” “[w]e give deference to the state
hearing officer’s findings particularly when, as here, they are
thorough and careful.” Id.; see also Union Sch. Dist. v.
Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).

    In K.D., we further reiterated that: (1) we review “the
district court’s factual determinations for clear error, even
when based on the administrative record”; (2) a “finding of
fact is clearly erroneous when the evidence in the record
supports the finding but the reviewing court is left with a
definite and firm conviction that a mistake has been
committed”; and (3) the party “challenging the district court’s
ruling, bears the burden of proof on appeal.” 665 F.3d at
1117 (internal quotation marks omitted).

                             III

   A. The District Court Complied with Our Mandate

    Initially, we affirm that the district court order is
consistent with our mandate. Plaintiffs argue that we had
found that E.M. had a specific learning disability, that we
held that the district court should apply more of a de novo
standard of review, and that the ALJ should not have relied
on the testimony of PVUSD’s psychologist. We held that
E.M. had alleged an auditory processing disorder, but we did
not reach the question of whether Plaintiffs had shown that
E.M. had qualified for special education benefits under the
“specific learning disability” category. Our opinion did not
alter the standard of review or make any factual
determinations as to any witness’s credibility. Rather, we
remanded for a determination whether “PVUSD met its
18              E.M. V. PAJARO VALLEY USD

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.” E.M., 652 F.3d at 1007. The district court did this
in compliance with our mandate.

     B. Plaintiffs Have Not Shown that PVUSD
        Unreasonably Found that E.M. Lacked the Severe
        Discrepancy Between His Achievement and
        Academic Test Scores Then Required to Qualify
        for Benefits Under the “Specific Learning
        Disability” Category

    In Schaffer v. Weast, 546 U.S. 49, 56–58 (2005), the
Supreme Court clarified that under the IDEA, the burden of
persuasion rests with the party seeking relief. Here, all
appear to agree that E.M.’s achievement score in 2004 was
87, and that then applicable state regulations required a
difference of 22.5 points between E.M.’s achievement and
ability scores. Thus, to prevail on their claims that E.M. was
entitled to special education benefits under the “specific
learning disability” category, Plaintiffs have to show that it
was unreasonable for PVUSD to use any test results other
than E.M.’s score on the K-ABC test. This they have failed
to do.

    In challenging PVUSD’s use of the WISC test, Plaintiffs
argue that: (1) the school psychologist, Ms. Viall testified that
the K-ABC test was a good cognitive test; (2) although Ms.
Viall testified that other colleagues thought the scores on the
K-ABC test can be inflated, she “was never able to identify
which colleagues and what their credentials were”; and
(3) Ms. Viall’s belief that E.M.’s score on the K-ABC test
was high was a product of her unreasonably low expectations.
                E.M. V. PAJARO VALLEY USD                       19

Plaintiffs assert that at least one authoritative article in a peer
reviewed journal identified the K-ABC test as the best
predictor of achievement of all cognitive tests. They also
submitted a declaration from Dr. Kaufman, who authored
both portions of the WISC test and the K-ABC test, favoring
the use of the K-ABC test and noting that it was not
appropriate to substitute a brief test such as the TONI for
comprehensive tests such as the K-ABC. In addition, Dr.
Wright, who administered the WISC test, testified that E.M.
had been unusually distracted when he took the test.

    Plaintiffs also contend that Dr. Jacques’s report supports
their positions that: (1) E.M. had a long history of auditory
processing disorder symptoms; (2) PVUSD was on notice that
E.M. had a learning disability; and (3) E.M. had a long
history of school failures. Plaintiffs point to Dr. Jacques’s
statement that she found it “puzzling” that the district did not
find E.M. eligible for special education services in 2005.

    Plaintiffs have shown that PVUSD could have used
E.M.’s K-ABC score, but they have not shown that PVUSD
acted unreasonably in using his WISC score. The record
shows that Dr. Wright gave E.M. the WISC test in the
summer of 2004 and that E.M. scored a 104 on that test.
Plaintiffs then asked PVUSD to test E.M. for a learning
disability. PVUSD did so. The school psychologist
administered the K-ABC test because re-administering the
WISC test would not have produced a reliable score. E.M.
scored 111 on the K-ABC test. Ms. Viall, noting the disparity
between the test scores and having concerns both about K-
ABC test scores in general and E.M.’s score in particular,
administered a third test. On the TONI test, E.M. scored 98.
PVUSD considered all three test results and then decided to
20                 E.M. V. PAJARO VALLEY USD

use the middle score, the one submitted by Plaintiffs. This
course of action has the indicia of reasonableness.

    Plaintiffs’ evidence and arguments do not undermine the
reasonableness of PVUSD’s decision. Plaintiffs presented
evidence such as Dr. Kaufman’s declaration praising the K-
ABC test, but not evidence that the other two tests were not
well-respected tests for cognitive ability or that it was
unreasonable to average test scores from different tests.
Moreover, none of the later developed information – Dr.
Jacques’s report, the 2008 assessment, or the later
assessments by E.M.’s new school district – bear on
PVUSD’s 2005 determination because they do not undermine
E.M.’s test scores on the WISC and TONI. The later
developed evidence does indicate that E.M. had a learning
disability in 2004, but PVUSD did not deny that he had a
disability. Rather, it denied relief because there was not a
22.5 point discrepancy between E.M.’s tested ability and
performance. Subsequently, when E.M. was retested and
reevaluated, PVUSD in 2008 determined that he was eligible
for special educational benefits.9




 9
     Dr. Jacques’s report included the following comment:

          Why has the gap widened between [E.M.’s] measured
          IQ scores and his achievement scores? The current
          testing used the most recent versions and normative
          updates, and because of the proposed population
          advances in knowledge, the updated tests are harder.
          Probably more importantly for [E.M.], the increased
          academic load in middle school and the cumulative
          experiences of failure have contributed to a widening
          gap in his intelligence and his achievement levels.
               E.M. V. PAJARO VALLEY USD                    21

    In Schaffer, 546 U.S. at 62, the Supreme Court held that
the party challenging the district court’s ruling bears the
burden of proof on appeal, and in K.D., 665 F.3d at 1117, we
held that we review the district court’s factual determinations
for clear error. In E.M., we reiterated that “school districts
have discretion in selecting the diagnostic tests they use to
determine special education eligibility.” 652 F.3d at 1003.
Applying these standards, we conclude that the record,
developed over at least seven years, does not show that
PVUSD unreasonably denied E.M. special education benefits
in 2005 under the “specific learning disability” category.
Accordingly, the district court’s determination of this issue
must be affirmed.

   C. We Defer to the Department of Education’s
      Position that a Child With a Disability May Be
      Eligible for Special Educational Benefits Under
      More Than One Category

    Although we held in E.M., 652 F.3d at 1007, that
Plaintiffs had not waived their contention that E.M.’s auditory
processing disorder could qualify him for special education
as a child with an “other health impairment,” the merits of
this contention had not been previously addressed. In
addressing the contention in the first instance, the district
court did not have the benefit of the perspective of the
Department of Education (“DOE”). On appeal, the DOE has
participated as an amicus curiae. Thus, in reviewing the
district court’s reading of 20 U.S.C. § 1401(3)(A)(i), we have
22                E.M. V. PAJARO VALLEY USD

the benefit of the views of the agency charged by Congress
with administering the IDEA. See 20 U.S.C. §§ 1406, 1416.10

    In 1991, the DOE issued a Joint Policy Memorandum that
explained that a child with attention deficit disorder or
attention deficit hyperactivity disorder might qualify for
special education benefits under one of three categories of the
IDEA’s definition of “child with a disability” – “other health
impairment,” “specific learning disability,” or “serious
emotional disturbance.” 18 IDELR 116 (Sept. 16, 1991). In
1994, the DOE’s Office of Special Education Programs
issued a letter explaining that a child with chronic fatigue
syndrome could qualify for special education under the “other
health impairment” category or under another category if the
child met the criteria for that category. Letter to Fazio,
21 IDELR 572 (Apr. 26, 1994). The DOE asserts that while
these documents do not address auditory processing
disorders, they reflect the Secretary’s position that a
particular condition may qualify for benefits under more than
one of the IDEA categories.

    The DOE asserts that its interpretation of a “child with a
disability” is consistent with the history and purpose of the
IDEA. Congress first enacted the IDEA in 1970 “to reverse
this history of neglect” of disabled children in the United
States. Schaffer, 546 U.S. at 52. Congress subsequently
expanded the definition of children with disabilities to




  10
    Section 1406 authorizes the Secretary of Education to issue certain
regulations “necessary to ensure that there is compliance” with the IDEA.
Section 1416 authorizes the Secretary to monitor, review and enforce the
implementation of the IDEA.
                 E.M. V. PAJARO VALLEY USD                          23

include specific learning disabilities,11 autism and traumatic
brain injury,12 and children between the ages of three and nine
who experienced developmental delays.13 These amendments
furthered the IDEA’s overarching substantive goal “to ensure
that all children with disabilities have available to them a free
appropriate public education that emphasizes special
education and related services designed to meet their unique
needs.” 20 U.S.C. § 1400(d)(1)(A); Forest Grove Sch. Dist.
v. T.A., 557 U.S. 230, 244–45 (2009) (noting the IDEA’s
express purpose as set forth in the statute and holding that
“[a] reading of the Act that left parents without an adequate
remedy when a school district unreasonably failed to identify
a child with disabilities would not comport with Congress’
acknowledgment of the paramount importance of properly
identifying each child eligible for services.”).

    The DOE further claims that its perspective is consistent
with a State and local school district’s duty under the “child
find” provisions of the IDEA. See 20 U.S.C. § 1412(a)(3).
The DOE argues that considering a child’s condition under
only one possible category of disability, when more than one
might apply, elevates a myopic concern with the child’s
specific classification over determining the child’s actual
educational needs. See Heather S. v. Wisconsin, 125 F.3d
1045, 1055 (7th Cir. 1997) (noting “whether Heather was
described as cognitively disabled, other health impaired, or

 11
   See Education for All Handicapped Children Act of 1975, Pub. L. No.
94-142, § 4(1), 89 Stat. 773, 775.
 12
   See Education of the Handicapped Act Amendments of 1990, Pub. L.
No. 101-476 § 101, 104 Stat. 1103.
 13
    See Individual with Disabilities Education Act Amendments for 1997,
Pub. L. No. 101-105, § 602(3)(B), 111 Stat. 37, 42–43.
24              E.M. V. PAJARO VALLEY USD

learning disabled is all beside the point. The IDEA concerns
itself not with labels, but with whether a student is receiving
a free and appropriate education.”); see also 20 U.S.C.
§ 1412(a)(3)(B) (“Nothing in this chapter requires that
children be classified by their disability so long as each child
who has a disability listed in section 1401 of this title and
who, by reason of that disability, needs special education and
related services is regarded as a child with a disability under
this subchapter.”).

    Where a statute speaks clearly to the precise question at
issue, we “must give effect to the unambiguously expressed
intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842–43 (1984). However,
“if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute.” Id. at 843.

     The Supreme Court has noted that deference may be
extended to an agency’s perspective not only when it
exercises its rulemaking authority, but also when an agency
authorized to administer a statute interprets its own regulation
or the statute by other means. In Chase Bank USA, N.A. v.
McCoy, 131 S. Ct. 781 (2011), the federal agency presented
its position in an amicus brief and the Supreme Court held:
“we defer to an agency’s interpretation of its own regulation,
advanced in a legal brief, unless that interpretation is ‘plainly
erroneous or inconsistent with the regulation.’” Id. at 880
(quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)). In
Capistrano Unified School District v. Wartenberg, 59 F.3d
884 (9th Cir. 1995), the DOE clarified its position in a “letter
to all chief state school officers,” and we held that the agency
was “entitled to deference in its interpretation of the statute,
                E.M. V. PAJARO VALLEY USD                     25

because the interpretation is based on a permissible
construction of the existing statutory language.” Id. at 894.

     The Supreme Court has recognized that even where the
express delegation of specific interpretive authority is implicit
and the agency has not engaged in the process of rulemaking
or adjudication, an agency’s decision may still be entitled to
Chevron deference. United States v. Mead Corp., 533 U.S.
218, 229–30 (2001). Moreover, even when an agency’s
decision does not qualify for Chevron deference, “an
agency’s interpretation may merit some deference whatever
its form, given the ‘specialized experience and broader
investigations and information’ available to the agency, . . .
and given the value of uniformity in its administrative and
judicial understandings of what a national law requires.” Id.
at 234 (quoting Skidmore v. Swift, 323 U.S. 134, 139–40
(1994)). We need not determine whether DOE’s policy
letters and amicus brief command Chevron deference as we
find its interpretation of the statute persuasive under
Skidmore.

    Here, as the district court’s resort to a canon of
construction implicitly admits, Congress’ intent is not clear.
Title 20 U.S.C. § 1401(3)(A)(i) offers a number of ways in
which an individual can qualify as a “child with a disability.”
Some of the proffered categories are quite specific, for
example: “orthopedic impairments,” “autism,” and “traumatic
brain injury.” Other categories appear to be relatively broad,
such as “intellectual disabilities,” “hearing impairments,” and
“serious emotional disturbance.” It is not clear from the
statute whether the category “other health impairments” was
intended as an alternate category or an additional category.
In other words, Congress did not indicate whether “other
health impairments” was limited to disabilities that did not fit
26              E.M. V. PAJARO VALLEY USD

into any of the other listed categories or included disabilities
that might also fit within another category.

    Because Congress was not clear, we must consider the
DOE’s interpretation. We find neither of the grounds
advanced in support of a restricted interpretation of the statute
to be persuasive. Certainly, the application of a canon of
construction should yield to Congress’ purpose in passing the
IDEA of ensuring that all children with disabilities have
available to them a free appropriate public education.
20 U.S.C. § 1400(d)(1)(A). Children with disabilities will be
disadvantaged if they have to select one category to the
exclusion of any other category. In many instances, neither
the child nor the parents will initially know which category
encompasses the child’s disability. Indeed, compelling a
selection of one category seems contrary to the school
district’s child find duty.

    Upon further inspection, the second proffered ground, a
fear that allowing a disability to qualify under more than one
category will “negate and render superfluous” the distinct
requirements for various categories, proves to be unfounded.
As the DOE asserts and the district court found, the
regulations that defined “specific learning disability” and
“other health impairments” in California in 2005 pertained to
two different categories of impairment with distinct criteria.
Viewing the requirements side by side reveals their
distinctiveness.
                 E.M. V. PAJARO VALLEY USD                           27

 Specific Learning                   Other Health
 Disability                          Impairment
 Cal. Educ. Code § 56337             34 C.F.R. § 300.7(c)(9)
 (2005)14                            (2005)

 - severe discrepancy                - limited strength, vitality
                                     or alertness

 - due to disorder of the            - due to chronic or acute
 basic psychological                 health problems
 processes

 - cannot be otherwise               - adversely affects child’s
 ameliorated                         educational performance

    A severe discrepancy, which all parties agreed in 2005
required a difference of 22.5 points between tested ability and
performance, is not the same thing as a condition that limits
“strength, vitality or alertness.” Also, it appears that a
“disorder of the basic psychological processes” is distinct
from “chronic or acute health problems.” Of course, a
“disorder” could also be a “health problem,” but presumably
a child could be otherwise very healthy and still have a
“disorder of the basic psychological processes.” The third
criterion was also different. An “other health impairment”
only required a showing that the condition adversely affects
the child’s educational performance, whereas a “specific
learning disability” required a showing that other educational
tools were inadequate. Perhaps, as the district court found,
the third criterion for an “other health impairment” might be


 14
    As noted, both the California Education Code and the Code of Federal
Regulations have been amended since 2005.
28              E.M. V. PAJARO VALLEY USD

easier to meet than the third criterion for a “specific learning
disability,” but the different provisions of the categories’
other criteria indicate that an “other health impairment” is not
necessarily easier to show than a “specific learning
disability.” Regardless of the comparative difficulty of
qualifying for benefits under the different categories, the two
categories definitely have different requirements and appear
to address different facets of disabilities. Thus, the fact that
a particular child might qualify under both categories is in no
way contrary to or inconsistent with Congress’ purposes in
enacting the IDEA. A contrary position would create the
possibility that a child with a disability could be denied
special education benefits not because he did not qualify for
benefits, but because the child, his parents, or the school
district’s initial selection of one category barred consideration
of a more appropriate category.

     The district court, faced with a question of first
impression, reasonably turned to a canon of construction to
interpret an ambiguous statute. On appeal we have the
benefit of a presentation by the DOE, which is charged by
Congress with enforcing the IDEA. Because Congress did
not clearly address the issue, and because we determine that
the DOE’s interpretation of the statutes and regulations is
reasonable and furthers the overall intent of the IDEA, we
defer to the agency’s interpretation. Accordingly, we hold
that a “child with a disability” may seek to qualify for special
education benefits under more than one of the categories
listed in 20 U.S.C. § 1401(3)(A)(i).
               E.M. V. PAJARO VALLEY USD                    29

   D. Plaintiffs Have Not, and Cannot, Show that
      PVUSD Unreasonably Denied E.M. Special
      Education Benefits in 2005 Under the “Other
      Health Impairment” Category

    Our decision that E.M. may qualify for special education
services under the other health impairment category does not
answer the question whether he did qualify for services in
2005, or more to the point, whether Plaintiffs can show that
PVUSD unreasonably failed to extend special education
benefits to E.M. in 2005 based on his “other health
impairment.” In a usual case, we would remand for the
district court or the ALJ to determine such a factual question
in the first instance. However, over the last eight years this
matter has been before the ALJ twice, before the district court
thrice, and is now before us a second time. E.M. has
graduated from high school. Accordingly, judicial efficiency
and fairness to all concerned recommend that we review the
existing record to consider whether a remand would be futile
and would needlessly prolong this litigation.

     The record is not clear as to when the possibility of E.M.
qualifying for educational benefits under the OHI category
first arose. There is no indication that this possibility was
specifically mentioned by anyone in 2004 or 2005. As we
noted in our prior opinion, Plaintiffs’ prayer in their January
2006 filing with California’s Office of Administrative
Hearings included the words “other health impairment.”
E.M., 652 F.3d at 1006. However, the filing as a whole does
not present any evidence or arguments that E.M. met the
30                 E.M. V. PAJARO VALLEY USD

criteria for qualifying under the other health impairment
category.15

    A review of the ALJ’s decisions show that all parties were
focused on E.M.’s auditory processing disorder. The issues
presented were broad, including whether PVUSD fulfilled its
child find and search and serve obligations, whether PVUSD
denied E.M. a free and appropriate public education and
whether PVUSD failed to assess E.M. in all areas of
suspected disability.




  15
    The prayer in the initial complaint to the Office of Administrative
Hearings read:

         To be found eligible for special education and related
         services under the IDEA as a child primarily with a
         learning disability and also as a child having an other
         health impairment due to his auditory processing
         deficits as outlined in paragraphs 12, 18, 21 and 22
         above.

Paragraph 12 simply recites that, based on Dr. Wright’s findings, Plaintiffs
requested that E.M. be assessed for special education services. Paragraph
18 recites efforts by Dr. Wright in 2005 in support of E.M.’s request for
benefits and concludes with the assertion that E.M. “qualified as a child
with a learning disability with additional deficits in auditory processing.”
Paragraph 21 alleges that based on the assessments and observations of
E.M., he “clearly met the criteria of a learning disability.” Paragraph 22
reiterates that E.M. “has a learning disability and moreover a central
auditory processing disorder.” It states that the audiologist “found
problems with short-term memory, language processing and an
impairment in background noise,” and that E.M.’s verbal responses
“require changing an auditory input into a more complex output involving
conscious thought and mediation by language processing.” All of the
paragraphs appear to address the criteria for a “specific learning disability”
rather than for an “other health impairment.”
                   E.M. V. PAJARO VALLEY USD                         31

    The ALJ’s report concentrates on Plaintiffs’ claim that
E.M. was eligible for services under the “specific learning
disability” category, but it also considered Plaintiffs’
allegations that PVUSD failed to assess E.M. “[i]n the areas
of auditory processing, hearing and behavior.” The ALJ
found that Ms. Viall administered the Spanish and English
versions of a test that included a subtest for auditory
processing and that Plaintiffs had failed to establish that
PVUSD failed to assess E.M. “in the suspected area of
disability of auditory processing.”16 As to testing for hearing,
the ALJ noted that E.M.’s “initial evaluation report dated
October 13, 2004, states that [E.M.] was screened for hearing
problems” and that E.M. “passed the hearing screening.” The
ALJ found that Plaintiffs had failed to show that PVUSD had
failed to assess E.M. in the area of hearing and commented:
“[w]hile [E.M.] listed this as an issue, he presented no
evidence in support of his claim that [PVUSD] failed to
screen his hearing.”

   As noted, the criteria for qualifying for special education
benefits under the “other health impairment” category were

 16
      The ALJ further noted:

          While [E.M.] subsequently obtained an assessment
          from a private audiologist who determined that [E.M.]
          had an auditory processing disorder (although as
          [PVUSD] correctly points out, her ultimate conclusion
          in that regard was vague) there was no persuasive
          evidence that Ms. Viall was not appropriately trained
          and qualified to administer the TAP-R, which, as
          determined above, tests “auditory processing.” The fact
          that [E.M.] obtained a different result from a different
          test administrator does not detract from the fact that
          [PVUSD] did assess [E.M.] in the area of auditory
          processing.
32              E.M. V. PAJARO VALLEY USD

(1) limited strength, vitality or alertness (2) due to chronic or
acute health problems, that (3) adversely affects the child’s
educational performance. Here, there is no suggestion that
E.M. had limited strength or vitality, but his auditory
processing disorder might well have limited his “alertness.”
However, the record, rather than supporting this possible
connection, indicates that when E.M. was tested for hearing,
the results were normal, and that Plaintiffs failed to proffer
any contrary evidence.

    It is now too late to develop new evidence as to E.M.’s
“alertness” in 2005. The existing evidence suggests that E.M.
did not have limited “alertness.” Ms. Viall and Nancy
Navarro, the resource specialist who assessed E.M., reported
that he was alert and responsive during assessment. E.M.’s
fourth and fifth grade teacher testified that she believed E.M.
was no more distractable than her other students, and his sixth
grade teacher reported that after she worked with E.M. on his
attention, his attention to tasks improved significantly.
Moreover, there was evidence that none of his teachers, nor
the speech and language therapists, thought that E.M. had
trouble following oral directions. This evidence might not
prove that E.M. was alert, but is more than sufficient, absent
any contrary evidence from 2004 and 2005, to compel a
finding that in 2005 PVUSD did not unreasonably fail to
diagnose E.M. as having limited alertness.

    Limited alertness is the criteria for eligibility for benefits
under the “other health impairment” category that E.M. was
most likely to meet. Because Plaintiffs have failed to show
that PVUSD unreasonably failed to diagnose limited
alertness, we need not consider whether there was evidence
that E.M. met the other criteria for eligibility under the OHI
category. Nonetheless, we note that our review of the record
               E.M. V. PAJARO VALLEY USD                    33

reveals nothing to suggest that E.M. suffered from chronic or
acute health problems. Furthermore, even assuming that
E.M. had limited alertness, there is scant evidence that this,
rather than other causes, such as his failure to complete his
homework, adversely affected his educational performance.

                              IV

    We can hope that today, with the evolution of the law and
improved testing, a child with a disability, such as E.M., will
not have to wait three years to be determined eligible for
special educational services. However, our task is to
determine whether PVUSD’s past determinations were
unreasonable. We conclude that they were not.

    PVUSD was not insensitive to Plaintiffs’ request that
E.M. be assessed. It formed an IEP team and had E.M. tested
and evaluated. Morever, PVUSD did not deny E.M. benefits
on the basis of some subjective evaluation or opinion, but
because E.M.’s test scores did not show the severe
discrepancy between his ability and achievement then
required. Plaintiffs have not shown that PVUSD’s decision
was unreasonable.

   We do agree with Plaintiffs and the Department of
Education that a child with an auditory processing disorder,
such as E.M., may seek special education services pursuant
to more than one of the categories listed in 20 U.S.C.
§ 1401(3)(A). The DOE is charged by Congress with
administering the IDEA and its interpretation of the statute is
permissible and furthers Congress’ intent in enacting the
IDEA. Accordingly, we defer to its position. See Mead
Corp., 533 U.S. at 234–35.
34              E.M. V. PAJARO VALLEY USD

    Finally, while we recognize that a child with an auditory
processing disorder may qualify for special educational
services under the “other health impairment” category, we
conclude that Plaintiffs cannot show that PVUSD was
unreasonable in 2005 in failing to diagnose E.M. under the
OHI category. Our review of the record reveals a dearth of
any evidence that in 2005 E.M.’s auditory processing disorder
manifested itself by limiting E.M.’s alertness or that the
disorder was due to chronic or acute health problems.
Plaintiffs over the last eight years have broadly challenged
PVUSD’s alleged failure to fulfill its child find obligations
and failure to assess E.M. in all areas of suspected disability.
We doubt that Plaintiffs have any additional evidence
concerning E.M.’s “other health impairment” in 2005 and
question whether such evidence, if it exists, could now be
admitted.

    Accordingly, we AFFIRM the district court’s judgment
in favor of PVUSD.

     Each side shall bear its own costs.
