In the summer before E.M. entered the fifth grade, E.M.'s parents had him tested for a learning disability, which was eventually established as an auditory processing disorder or central auditory processing disorder.  Based on administered tests, E.M.'s psychologist also estimated his intelligence quotient ("IQ") to be 104.  E.M.'s parents then submitted the assessment to Pajaro Valley Unified School District and requested that the district evaluate E.M.

That fall, the district's psychologist administered a different IQ test (because re-administering the same test produces invalid results), and E.M. received a score of 111.  Because the score was much higher, the district's psychologist administered a third test, and E.M. received a score of 98.  Since the third score was consistent with the original score, the district's psychologist determined that 104 was the most reliable measure of E.M.'s intellectual ability.

That year, to qualify for special education benefits under the "specific learning disability" ("SLD") category, a child would have to meet several requirements under Education Code section 56337 (2005), including "a severe discrepancy between intellectual ability and achievement," which California regulations defined as a difference of at least 22.5 points between a child's ability and performance.  However, there was only a difference of 17 between E.M.'s lowest standard score in an academic area and the middle IQ score of 104.  Since this did not constitute a severe discrepancy, the district determined that E.M. did not qualify for special education benefits under the SLD category.

E.M.'s parents filed an administrative complaint after the district denied E.M. special education benefits, which they later appealed.  After many stages of litigation on other issues, the Ninth Circuit Court of Appeals sent the case back to the trial court to determine whether the district met its obligations to E.M. as a child with"other health impairment" or SLD (as defined by federal regulations) related to his auditory processing disorder.  The trial court reviewed the evidence from the administrative hearing and determined that E.M.'s parents had not met their burden of showing that it was unreasonable for the district to use the 104 score.  The district court also interpreted the "other health impairment" category as not including auditory processing disorders.  E.M.'s parents appealed again.

The Ninth Circuit Court of Appeals ruled that E.M.'s parents showed that the district could have used the second IQ test, but they did not show that the district acted unreasonably in using the middle score.  While E.M.'s parents presented evidence that the test yielding the highest score was a highly regarded test, they did not present evidence that the other two tests were not well-respected.  The Court of Appeals also deferred to the Department of Education, which took the position that a central auditory processing disorder could be considered under the "other health impairment" category.  However, the Court also ruled that nothing in the record indicated that the district unreasonably denied E.M. special education benefits under this category.

This ruling does not mean that a district should always use the middle score if it has multiple scores to choose from.  The validity of the tests was a much more important factor in the court's analysis than the fact that the chosen score was the middle score.  There was evidence to suggest that using either the top or middle score would not have been unreasonable (the third test resulting in the low score was a less comprehensive test than the other two), and the court noted that the district's course of action under the circumstances was reasonable.   

The litigation on other issues for this case was covered in the August 2011 issue of Education Matters, after the Ninth Circuit Court of Appeals issued its first opinion on this case.