                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 06 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


D. A. and J. A., on behalf of themselves         No. 14-35081
and as legal guardians and parents of
M.A., an individual with a disability,           D.C. No. 1:12-cv-00426-CWD

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
 v.

MERIDIAN JOINT SCHOOL DISTRICT
NO. 2,

              Defendant - Appellee.


                   Appeal from the United States District Court
                             for the District of Idaho
                 Candy W. Dale, Chief Magistrate Judge, Presiding

                        Argued and Submitted April 8, 2015
                               Seattle, Washington

Before: FERNANDEZ, HAWKINS, and CALLAHAN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      All parties agree that Matthew has Asperger’s Syndrome, a high functioning

form of autism.1 This appeal is by Matthew’s parents (the Parents) from the

district court’s affirmance of the hearing officer’s determination that Matthew,

despite having Asperger’s Syndrome, was not in need of special education services

under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400.

We conclude that the Parents have not carried their burden of showing that the

hearing officer erred in excluding certain proffered evidence or that the district

court and the hearing officer failed to consider both non-academic and academic

factors in reviewing the conflicting evidence. Accordingly, we affirm.2

      1. The Parents have not shown that the district court erred in affirming the

hearing officer’s exclusion of certain evidence. The first proceeding before a

hearing officer was brought by Meridian School District (MSD) seeking

confirmation of its refusal in February 2011 to prepare an Independent Educational

Evaluation (IEE) for Matthew. The second proceeding, from which this appeal

arises, was initiated by the Parents after the IEE had been prepared, and after MSD,




      1
            Matthew is now an adult, but during most of the underlying legal
proceedings he was a minor and was referred to as M.A.
      2
             The related appeals by Meridian School District are decided in an
opinion filed concurrently with this memorandum disposition.

                                           2
having reviewed the IEE, determined that Matthew did not need special education

services.

       The Parents sought to admit documents and testimony from the first

proceeding as evidence in the second proceeding, but the hearing officer declined

to admit the evidence. The Parents argued that the first hearing officer had found

that Matthew needed special education services and sought the admission of the

testimony of their experts in the first hearing, Dr. Webb and Dr. Beaver, claiming

that Dr. Webb was unavailable during the course of the second hearing. The

hearing officer declined to admit the evidence because: (1) he was reviewing

evidence as to Matthew’s needs in the fall of 2011, not his needs at a prior time; (2)

much of the evidence presented in the prior hearing had been incorporated into the

IEE; and (3) the Parents had failed to show the particular relevance of the proffered

evidence.

      The Parents have the burden of proof in their challenge to the hearing

officer’s decision. Schaffer v. Weast, 546 U.S. 49, 62 (2005). We review the

district court’s evidentiary rulings for abuse of discretion, E.M. v. Pajaro Valley

Unified Sch. Dist. Office of Admin. Hearings, 652 F.3d 999, 1003 (9th Cir. 2011),

and a hearing officer’s findings are entitled to some deference. See Ashland Sch.

Dist. v. Parents of Student E.H., 587 F.3d 1175, 1182 (9th Cir. 2009).


                                           3
      The Parents have not met their burden of showing that either the hearing

officer or the district court erred in excluding their proffered evidence. Contrary to

the Parents’ contention, the first hearing officer specifically declined to determine

whether Matthew needed special education services. In addition, much of the

evidence the Parents sought to introduce had been incorporated into the IEE.

Moreover, they did not make a persuasive showing to either the hearing officer or

the district court that further testimony concerning Matthew’s ability and actions,

beyond that which had been incorporated into the IEE, was necessary to evaluate

Matthew’s needs in the fall of 2011. On this record, the Parents have failed to

show that the excluded evidence was “relevant, non-cumulative and otherwise

admissible.” E.M., 652 F.3d at 1006.

      2. The Parents have not met their burden of proof, see Schaffer, 546 U.S. at

62, of establishing that Matthew needed special education services.

      Under the IDEA, a “child with a disability” — that is a child for whom the

IDEA mandates the provision of special education services — is a child with an

impairment or disability “who, by reason thereof, needs special education and

related services.” 20 U.S.C. § 1401(3)(A)(ii). Here, all agree that Matthew has a

recognized impairment or disability, Asperger’s Syndrome. The issue is whether

because of his Asperger’s Syndrome, Matthew needed special education services.


                                           4
      The hearing officer was presented with irreconcilable evidence. The

Parents’ experts asserted that Matthew needed special services to benefit from his

education, and MSD’s experts claimed, based on their observations of Matthew in

school, that he was benefitting from the general education curriculum, despite his

autism. Indeed, the evidence indicated that in some instances Matthew was

performing well above the Parents’ experts’ expectations. Although the Parents

allege that MSD focused too much on Matthew’s academic performance, the

hearing officer and the district court noted that Matthew had done well in classes

that emphasized pre-vocational and life skills. We have previously held, as the

hearing officer noted, that hearing officers may give weight to the testimony of

school personnel based on their experience with the child. See N.B. v. Hellgate

Elem. Sch. Dist., 541 F.3d 1202, 1212 (9th Cir. 2008). Our independent review of

the record shows that MSD, the hearing officer, and the district court considered

both academic and non-academic factors in concluding that Matthew, despite his

autism, did not need special education services. The Parents have not met their

burden of showing that this conclusion was erroneous or improper.




                                          5
      The district court’s memorandum decision affirming the hearing officer’s

finding that MSD appropriately determined that Matthew was not eligible for

special education services is AFFIRMED.3




      3
            MSD’s request for attorneys’ fees is denied.

                                        6
