                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RACHEL H., by and through her            No. 14-16382
Parents,
                Plaintiff-Appellant,        D.C. No.
                                         1:13-cv-00263-
                 v.                         HG-BMK

DEPARTMENT OF EDUCATION, STATE
OF HAWAII,                                 OPINION
             Defendant-Appellee.



     Appeal from the United States District Court
              for the District of Hawaii
   Helen W. Gillmor, Senior District Judge, Presiding

         Argued and Submitted June 15, 2017
                 Honolulu, Hawaii

                 Filed August 29, 2017

     Before: Raymond C. Fisher, Richard A. Paez
      and Jacqueline H. Nguyen, Circuit Judges.

               Opinion by Judge Fisher
2     RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII

                          SUMMARY *


        Individuals with Disabilities Education Act

    The panel affirmed the district court’s summary
judgment in favor of the Hawaii Department of Education in
an action brought on behalf of a student under the
Individuals with Disabilities Education Act.

    The panel held that there was no procedural violation of
the IDEA, and the student was not denied a free appropriate
public education, when the anticipated school where special
education services would be delivered, in light of a planned
move to a new school district, was not identified. The panel
held that the IDEA does not require identification of a
particular school in every instance. Rather, the requirement
that an individualized education program identify the
“location” in which special education services will be
provided means that the IEP must identify the general setting
or type of environment.


                           COUNSEL

Jay S. Handlin (argued), New York, New York, for Plaintiff-
Appellant.

Kaliko’onalani D. Fernandes (argued), Holly T. Shikada,
and Gary S. Suganuma, Deputy Attorneys General; Clyde J.
Wadsworth, Solicitor General; Douglas C. Chin, Attorney

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
     RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII             3

General; Department of the Attorney General, Honolulu,
Hawaii; for Defendant-Appellee.


                          OPINION

FISHER, Circuit Judge:

    Rachel H.’s parents brought suit on her behalf against the
Hawaii Department of Education, alleging she was denied a
free appropriate public education under the Individuals with
Disabilities Education Act (IDEA). This alleged denial did
not stem from any substantive failure to include any
particular special education service in her individualized
education program. Rather, Rachel’s parents argued their
daughter was denied a free appropriate public education
because of a purported procedural error, specifically, not
identifying the anticipated school where special education
services would be delivered in light of a planned move to a
new school district. Because we hold the IDEA does not
require identification of a particular school in every instance,
we affirm the district court’s summary judgment for the
Hawaii Department of Education.

                               I.

    Rachel has Down syndrome, but this has not stopped her
from spending “her entire educational life fully included
with typical students in a general education setting.” In
2012, Rachel was finishing ninth grade at a private school
paid for, in part, by the Hawaii Department of Education
(Department) under a settlement agreement with Rachel’s
parents. In May of that year, the Department held an
individualized education program (IEP) meeting to
determine the special education services Rachel would
receive in the upcoming school year. During the meeting,
4    RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII

Rachel’s father urged the Department to continue paying for
Rachel’s tuition at the private school, but the Department
declined. Although agreeing that Rachel qualified for
numerous special education services, including one-on-one
adult support, the Department’s offer of a free appropriate
public education (FAPE) provided that her IEP would be
“implemented on a public school campus.”

    At the time of the May 2012 IEP meeting, all parties
involved understood that the “public school campus” offered
by the Department was Kalani High School. However,
neither Rachel’s IEP nor the prior written notice of the
proposed changes formally identified the anticipated school
where Rachel’s tenth grade IEP would be implemented.

    Rachel’s parents did not sign the May 2012 IEP. A few
months later, Rachel’s father informed the Department that
the family was moving to Kailua, approximately 20 to
30 miles from Kalani High School.            Consequently,
according to Rachel’s father, “Kalani [would] under no
circumstances be Rachel’s local public high school” given
the distance from the school to their new home. He again
demanded to enroll Rachel in private school at public
expense.

    The Department did not accede to this demand. On July
30, 2012, it wrote Rachel’s parents that the May 2012 IEP
was “not specific to Kalani High School.” Instead, the IEP
was “based on [Rachel’s] current strengths and needs.”
Accordingly, the Department asked for the family’s new
address in Kailua “so the location where Rachel’s IEP can
be implemented can be determined.” “Until [the family’s]
move,” Rachel could attend Kalani High School if her
parents wished. The Department also informed Rachel’s
father that, should he enroll her in private school, such
     RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII          5

enrollment would be considered a “unilateral placement at
parents’ expense.”

     The Department never proposed a new IEP meeting in
light of the family’s move. Nor did it ever identify a school
in Kailua that could meet Rachel’s special education needs.
It did, however, repeatedly ask for the family’s new address.
Rachel’s father ignored these requests until January 2013,
when, in addition to giving the Department the family’s new
address, he filed a due process hearing request on behalf of
Rachel, arguing that the Department had denied Rachel a
FAPE by not identifying the anticipated school where
Rachel’s IEP would be implemented. He did not raise any
substantive challenge to Rachel’s IEP. In response, the
Department argued it had complied with the IDEA’s
requirements and that Rachel’s IEP could “be implemented
on a public school campus.”

    An administrative hearings officer concluded that the
May 2012 IEP had offered Rachel placement at Kalani High
School and that the July 30, 2012 letter had not amended that
offer to include any public school in Kailua. Instead, he
viewed the July letter as a first step in determining which
school in Kailua could serve Rachel’s needs while
continuing to offer Kalani High School as an option in the
interim. After Rachel’s parents filed this action in federal
court for review of the hearings officer’s decision, the
district court affirmed, reasoning that an IEP need not
necessarily identify a specific school where it would be
implemented to comply with the IDEA. Rachel timely
appealed.

                             II.

    Congress enacted the IDEA because many children with
disabilities “were excluded completely from any form of
6    RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII

public education or were left to fend for themselves in
classrooms designed for education of their nonhandicapped
peers.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 191 (1982). To remedy this problem,
Congress offered states federal money and, in exchange,
required states to provide a FAPE to all children with
qualifying disabilities through the provision of special
education services. See 20 U.S.C. § 1412(a)(1). These
special education services must be outlined in an IEP, “the
centerpiece of the statute’s education delivery system.”
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1,
137 S. Ct. 988, 994 (2017) (quoting Honig v. Doe, 484 U.S.
305, 311 (1988)). Each IEP is crafted by a team of the
individuals most critical to a child’s success, including
parents, teachers, and school officials. See 20 U.S.C.
§ 1414(d)(1)(B). Their task is to develop a “comprehensive
plan” that is “‘tailored to the unique needs’ of a particular
child.” Endrew F., 137 S. Ct. at 994 (quoting Rowley,
458 U.S. at 181).

    A complete IEP that is fully compliant with the IDEA
must be in place at the beginning of each school year for all
children with disabilities. See 20 U.S.C. § 1414(d)(2)(A).
The IEP must be “reasonably calculated to enable a child to
make progress appropriate in light of the child’s
circumstances.” Endrew F., 137 S. Ct. at 999. To
accomplish this goal, the IEP team must consider a child’s
current levels of academic achievement, describe how a
child’s disability affects his or her ability to perform, and set
measurable goals of academic progress for the upcoming
year through the provision of special education services. See
20 U.S.C. § 1414(d)(1)(A)(i). As relevant here, an IEP must
contain “the projected date for the beginning of the services
and modifications described in subclause (IV), and the
anticipated frequency, location, and duration of those
        RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII                     7

services and modifications.”            Id. § 1414(d)(1)(A)(i)(VII)
(emphasis added). 1

    This appeal concerns the meaning of “location” in
§ 1414(d)(1)(A)(i)(VII). If, as Rachel’s father argues,
“location” means the specific school where an IEP will be
implemented, then at the beginning of the 2012–13 school
year the Department failed to have in place an IEP that
identified an anticipated school in Kailua, Rachel’s new
home town, where special education services would be
delivered. If, on the other hand, “location” does not mean
the specific school, then the district court correctly affirmed
dismissal of Rachel’s claims. We hold “location” does not
necessarily include the specific school where special
education services will be implemented. We therefore
affirm.

    The IDEA does not define the term “location.” See
20 U.S.C. § 1401. “When interpreting a statute, the court
begins with the statutory text and interprets ‘statutory terms
in accordance with their ordinary meaning, unless the statute
clearly expresses an intention to the contrary.’” I.R. ex rel.
E.N. v. L.A. Unified Sch. Dist., 805 F.3d 1164, 1167 (9th Cir.
2015) (quoting United States v. Neal, 776 F.3d 645, 652 (9th
    1
       20 U.S.C. § 1414(d)(1)(A)(i)(IV) says an IEP must include “a
statement of the special education and related services and
supplementary aids and services, based on peer-reviewed research to the
extent practicable, to be provided to the child, or on behalf of the child,
and a statement of the program modifications or supports for school
personnel that will be provided for the child – (aa) to advance
appropriately toward attaining the annual goals; (bb) to be involved in
and make progress in the general education curriculum in accordance
with subclause (I) and to participate in extracurricular and other
nonacademic activities; and (cc) to be educated and participate with
other children with disabilities and nondisabled children in the activities
described in this subparagraph.”
8    RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII

Cir. 2015)). Here, the ordinary dictionary definitions of the
term “location” do not reveal what Congress intended by the
term in this context. See Location, American Heritage
Dictionary 1029 (5th ed. 2011) (“A place where something
is or could be located . . . .”); Location, Black’s Law
Dictionary (10th ed. 2014) (“The specific place or position
of a person or thing.”); Location, Webster’s Third New
International Dictionary 1327 (2002) (“a position or site
occupied or available for occupancy (as by a building) or
marked by some distinguishing feature <a sheltered ~>”).
These definitions generally define “location” as a specific
place or position. In the context in which the term is used in
§ 1414(d)(1)(A)(i)(VII), this could plausibly refer to a
specific school, a specific classroom, or a specific type of
classroom or educational environment—such as a regular
classroom, a special education classroom or a resource room.
The ordinary meaning of the term location therefore does not
resolve the question presented here. We therefore turn to the
tools of statutory interpretation employed to give meaning to
a statute’s ambiguous terms.

    The United States Department of Education (USDOE),
charged with enforcing the IDEA, also has not defined the
term. See 34 C.F.R. §§ 300.4–45. Nor has it officially
interpreted its regulations concerning the term “location” as
used in 20 U.S.C. § 1414(d)(1)(A)(i)(VII) and 34 C.F.R.
§ 300.320(a)(7). In unofficial commentary, however, the
USDOE has given the term “location” a meaning
inconsistent with holding it always includes a particular
school.

    Shortly after the location requirement was added to the
IDEA, the USDOE responded to commenters’ requests to
clarify that “‘location’ means the general setting in which
[special education] services will be provided and not a
     RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII            9

particular school or facility.” Assistance to States for the
Education of Children with Disabilities, 64 Fed. Reg.
12,406, 12,594 (Mar. 12, 1999). The USDOE responded,
“[t]he ‘location’ of services in the context of an IEP
generally refers to the type of environment that is the
appropriate place for provision of the service. For example,
is the related service to be provided in the child’s regular
classroom or in a resource room?” Id. This statement,
especially when read in the context of the request from
commenters to which it was designed to respond, strongly
suggests the USDOE did not interpret location to require
identification of a particular school. See T.Y. ex rel. T.Y. v.
N.Y. City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009)
(concluding the USDOE’s commentary “indicate[s] that the
term ‘location’ does not mean the specific school location,
but the general environment of the overall program”); see
also R.L. ex rel. O.L. v. Miami-Dade Cty. Sch. Bd., 757 F.3d
1173, 1190 n.8 (11th Cir. 2014) (concluding “particular site
selection” for an educational “placement” is “likely within
the state’s discretion to choose”); White ex rel. White v.
Ascension Parish Sch. Bd., 343 F.3d 373, 379–80 (5th Cir.
2003) (concluding the term “location” was “primarily
administrative” and did not give parents the right to be
involved in “site selection”); Abney ex rel. Kantor v. District
of Columbia, 849 F.2d 1491, 1492 n.1 (D.C. Cir. 1988) (“An
IEP is not location-specific; the place at which an IEP is
implemented may change without the IEP itself changing.”);
cf. A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 484 F.3d
672, 681 (4th Cir. 2007) (not considering the USDOE
commentary and concluding location, in some
circumstances, means the anticipated school where special
education services will be delivered). We conclude the
USDOE’s understanding of the term “location” as meaning
“type of environment that is the appropriate place for
10       RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII

provision of [a special education] service” is persuasive for
at least two reasons. 2

    First, the USDOE’s interpretation is almost identical to a
statement in the legislative history of the “location
requirement,” which Congress added in 1997. See Pub. L.
No. 105-17, title I, § 614, 111 Stat. 37. A Senate Labor and
Human Resources Committee report said the amendment
was needed because:

          The location where special education and
          related services will be provided to a child
          influences decisions about the nature and
          amount of these services and when they
          should be provided to a child. For example,
          the appropriate place for the related service
          may be the regular classroom, so that the
          child does not have to choose between a
          needed service and the regular educational
          program. For this reason, in the bill the
          committee has added “location” to the
          provision in the IEP that includes “the
          projected date for the beginning of services
          and modifications, and the anticipated
          frequency, location, and duration of those
          services” (emphasis added).

S. Rep. No. 105-17, at 21–22 (1997). Thus, like the USDOE
commentary, the legislative history suggests Congress

     2
      Because we conclude the USDOE’s commentary is persuasive
under Skidmore v. Swift & Co., 323 U.S. 134, 139–40 (1944), we do not
consider whether the USDOE’s commentary is entitled to greater
deference. See E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist.
Office, 758 F.3d 1162, 1174 (9th Cir. 2014).
     RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII           11

intended the term “location” to mean the appropriate
educational environment for the delivery of a specific special
education service.

    Second, the USDOE’s interpretation is consistent with
other IDEA provisions. When a student transfers to a new
school district within the same academic year, the new
district may use the old IEP until the new district “adopts the
previously held IEP or develops, adopts, and implements a
new IEP that is consistent with Federal and State law.”
20 U.S.C. § 1414(d)(2)(C)(i)(I). Accordingly, the IDEA’s
transfer procedures allow a new district to adopt an old IEP
without changes. This procedure supports the USDOE’s
interpretation of “location” as the appropriate environment
for delivery of a special education service. Otherwise, this
subsection would suggest that a new school district could
adopt an IEP without changing the previously designated
school, which might well be outside the new district and over
which the local educational agency lacks authority.

    Contrary to the USDOE’s interpretation, Rachel’s father
provides three arguments for why the term “location” must
always require identification of the anticipated school where
special education services will be delivered. None is
persuasive.

    First, Rachel’s father argues K.D. ex rel. C.L. v.
Department of Education, 665 F.3d 1110, 1126–27 (9th Cir.
2011), holds location means the anticipated school where
special education services will be delivered. We disagree.
The word “location” does not even appear in K.D. See id.
Instead, that case concerned whether a local educational
agency must identify the specific classroom where special
education services would be provided under Union School
District v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994), as part
12       RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII

of its formal offer of “placement.” K.D., 665 F.3d at 1127. 3
K.D. held there was no requirement to identify the specific
classroom where special education services would be
provided. See id. Because a specific school was identified
in K.D.’s IEP, there was no need to consider whether the
IDEA required such identification. See id.

    Second, Rachel’s father argues the USDOE’s
interpretation of “location” would strip the term “placement”
of meaning. Not so. The USDOE’s interpretation of
location concerns the environment in which a particular
special education service will be provided. See 64 Fed. Reg.
at 12,594. Conversely, the term “placement” means the
“general educational program of the student.” N.D. ex rel.
Parents Acting As Guardians Ad Litem v. Haw. Dep’t of
Educ., 600 F.3d 1104, 1116 (9th Cir. 2010). In other words,
the term “location” is narrower.           For example, the
educational placement of a student might be regular classes
with a one-on-one aide and modified testing. See 34 C.F.R.
§ 300.115(b)(1). Conversely, the location of a special
education service, such as modified testing, might be in a
teacher’s office. One need not interpret “location” as


     3
        In supplemental briefing, Rachel’s father appears to have
abandoned any argument that Smith is dispositive of this case. To the
degree Rachel’s father maintains that Smith is dispositive, we disagree.
Smith could not have interpreted the term “location” because it was
decided three years before Congress added the location requirement to
the IDEA. Instead, Smith interpreted the term “placement” now codified
at 20 U.S.C. § 1415(b)(3) and (b)(6)(A). See Smith, 15 F.3d at 1526. In
so doing, it held an IEP that identified an inappropriate school could not,
nonetheless, provide a FAPE because a different school not identified
and never offered could have met the needs of a child with disabilities.
See id. Thus, the court held a local educational agency must make a
formal offer of placement in order to satisfy IDEA requirements. See id.
It did not hold that “placement” meant a particular school. See id.
     RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII           13

meaning an anticipated school for there to be a difference
between it and the term “placement.”

    Lastly, Rachel’s father argues that permitting an
educational agency to not always identify a particular school
at which services will be provided would deprive parents of
children with disabilities of basic information concerning an
offer of a FAPE. Cf. A.K., 484 F.3d at 681. Although we
agree that having a local educational agency identify the
school where special education services will be delivered
makes sense and may even be required in some
circumstances, we do not agree the IDEA requires such
identification in all instances, as we have explained.

    When a student with an existing IEP transfers to a new
district within the same state, the new district must “provide
such child with a free appropriate public education,
including services comparable to those described in the
previously held IEP, in consultation with the parents until
such time as the local educational agency adopts the
previously held IEP or develops, adopts, and implements a
new IEP that is consistent with Federal and State law.”
20 U.S.C. § 1414(d)(2)(C)(i)(I). Here, had Rachel’s parents
provided the Department with their new address, “[t]here [is]
no question that [s]he would have had a place,” K.D.,
665 F.3d at 1127, in a school and—accepting Rachel’s
father’s interpretation of the July 2012 letter as true—a
public one at that. That public school must have provided
Rachel a FAPE in a manner that was consistent with her
existing IEP—i.e., the one created with Kalani High School
in mind. See 20 U.S.C. § 1414(d)(2)(C)(i)(I). But instead of
undergoing a normal registration process with the
educational agency in Kailua, Rachel’s parents decided to
treat a purported technical violation of the IDEA as allowing
them to unilaterally enroll their daughter in private school at
14   RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII

public expense without identifying a single special education
need her existing IEP failed to meet simply because the
existing IEP did not specify Kalani High School and thereby
limit the IEP to that location. Because the IDEA does not
require educational agencies to identify a specific school in
every IEP, this gambit must fail.

    We emphasize that knowledge of a particular school,
classroom, or teacher may well be relevant to allowing
parents to participate meaningfully in the IEP process. See,
e.g., A.K., 484 F.3d at 681 (“With the IEP not identifying
any particular school (because the IEP team had not
discussed the issue), the parents were left to fend for
themselves to determine whether any private day school in
their area—including the five ACPS applied to—would be a
satisfactory fit. This is not how the IDEA was designed to
work.”). Parents may need this information, for example, to
evaluate whether a proposed IEP satisfies the IDEA because
of a particular special education need caused by a child’s
disability. See, e.g., Smith, 15 F.3d at 1525 (holding the
absence of other autistic children and the lack of training for
teachers on working with autistic children, among other
deficiencies, made a particular school inappropriate). In
such circumstances, a local educational agency’s failure to
specify a school may violate the IDEA. Furthermore, even
where the IDEA may not require identification of a
particular school, it may still be wise to do so in the IEP,
especially when providing this information would advance
the essential purpose of this important law. Nothing in our
holding is meant to suggest otherwise. See A.K., 484 F.3d at
680–82.

    Rather, we hold an educational agency does not commit
a per se violation of the IDEA by not specifying the
anticipated school where special education services will be
     RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII           15

delivered within a child’s IEP. This does not mean “school
districts have carte blanche to assign a child to a school that
cannot satisfy the IEP’s requirements.” T.Y., 584 F.3d at
420. Nor does it mean that not identifying a school can never
result in a denial of a FAPE, especially when a child’s
disability demands delivery of special education services at
a particular facility. We hold only that the IDEA does not
procedurally require every IEP to identify the anticipated
school where special education services will be delivered.

                             III.

     Rachel’s father argues that even if the IDEA does not
require a local educational agency to identify a particular
school in every instance, Rachel’s predetermination claim
still survives because the July 2012 letter indicated Rachel
would have to attend a Kailua public high school without
holding an IEP meeting and without considering whether
any particular public schools in Kailua could meet her needs.
“A school district violates the IDEA if it predetermines
placement for a student before the IEP is developed or steers
the IEP to the predetermined placement.” K.D., 665 F.3d at
1123. We conclude that did not occur here.

    Rachel’s May 2012 IEP said her needs could be met “on
a public school campus.” As of May, the parties understood
the IEP would be implemented at Kalani High School,
although the IEP itself was “not specific to Kalani High
School.” Thus, as a result of that May 2012 IEP process—
which has not been challenged—the Department concluded
Rachel’s needs could be met “on a public school campus,”
and Kalani High School was the presumed school at that
time. Accordingly, even if the July 2012 letter definitively
said Rachel would be sent to a public school in Kailua, this
would be a simple adoption of her May 2012 IEP in a new
school district. This is precisely the procedure outlined in
16       RACHEL H. V. DEP’T OF EDUC., STATE OF HAWAII

20 U.S.C. § 1414(d)(2)(C)(i)(I). 4        As stated above,
§ 1414(d)(2)(C)(i)(I) provides that when a student with an
existing IEP transfers to a new district within the same state,
the new district may use the old IEP to offer a FAPE until it
either chooses to adopt the old IEP in full or develops a new
one with parental input.

     AFFIRMED.




     4
      Because Rachel’s IEP called for its implementation “on a public
school campus,” offering the special education services and
modifications outlined therein in a Kailua public school would have
simply followed the procedure outlined in § 1414(d)(2)(C)(i)(I), even
though the special education services and modifications in Rachel’s May
2012 IEP were designed with Kalani High School in mind.
