FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES N. VAN DUYN, for his son, 

Christopher J. Van Duyn, a minor No. 05-35181

& incapacitated person, D.C. No.

Plaintiff-Appellant,  CV-02-01060-MO

v. AMENDED

BAKER SCHOOL DISTRICT 5J, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

November 14, 2006—Portland, Oregon

Filed April 3, 2007

Amended September 6, 2007

Before: Warren J. Ferguson, Diarmuid F. O’Scannlain and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge Ferguson

11761
COUNSEL

Pamela C. Van Duyn (argued), Baker City, Oregon, and

Damien R. Yervasi, Baker City, Oregon, for the plaintiffappellant. 

Richard Cohn-Lee (argued) and Nancy J. Hungerford, The

Hungerford Law Firm, Oregon City, Oregon, for the

defendant-appellee. 

Lewis Bossing, The Legal Aid Society of San Francisco, San

Francisco, California, for the amici curiae The Legal Aid

Society of San Francisco - Employment Law Center, the

Learning Rights Law Center, the Oregon Advocacy Center

and Protection & Advocacy, Inc. 

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11765
The opinion filed at 481 F.3d 770 (9th Cir. 2007), is

amended in full as follows:

OPINION

FISHER, Circuit Judge: 

This case arises from the difficult transition of Christopher

J. Van Duyn (“Van Duyn”), a severely autistic child, from

elementary to middle school. Van Duyn alleges that Baker

School District 5J (“District”) failed to implement key portions of his individualized educational program (“IEP”) during the 2001-02 school year, his first year at Baker Middle

School, thereby depriving him of the free appropriate public

education guaranteed by the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.

1

 An

administrative law judge (“ALJ”) ruled that the District failed

to provide Van Duyn sufficient math instruction, but otherwise found that the District had adequately implemented the

IEP. The district court affirmed the ALJ’s decision in all

respects and declined to award any attorney’s fees to Van

Duyn. 

Van Duyn brings to us a detailed list of complaints about

the District’s variances from his IEP, arguing that the ALJ

and district court were much too forgiving of the District’s

failures to provide him the special instructional and support

services agreed to in the IEP. Accordingly, we must decide

how much leeway a school district has in implementing an

IEP as it translates the plan’s provisions into action at school

and in the classroom. We hold that when a school district does

not perform exactly as called for by the IEP, the district does

not violate the IDEA unless it is shown to have materially

failed to implement the child’s IEP. A material failure occurs

1Unless otherwise indicated, all statutory citations are to the IDEA. 

11766 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
when there is more than a minor discrepancy between the services provided to a disabled child and those required by the

IEP. 

Applying this standard to the various implementation failures Van Duyn alleges, we conclude that none of them was

material (with the exception of the math instruction shortfall,

which was later remedied in response to the ALJ’s order), and

that the District therefore did not violate the IDEA. Because

Van Duyn did partially prevail, however, we hold that Van

Duyn is to that extent entitled to reasonable attorney’s fees for

the relevant work done at the administrative hearing level —

though not for Van Duyn’s mother, who has acted as one of

his attorneys in these proceedings. Accordingly, we affirm in

part and reverse in part the district court’s judgment and

remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

A. Factual History

Van Duyn is a severely autistic boy who was 13 years old

during the 2001-02 school year. During the three years prior

to 2001-02, Van Duyn was a student at South Baker Elementary School, where he received extensive special education

services. On February 22, 2001, a team comprised of teachers,

district representatives and Van Duyn’s mother finalized a

comprehensive IEP for the 2001-02 school year, during which

Van Duyn would transition to Baker Middle School. 

Van Duyn’s 2001-02 IEP called for him to work on “language arts - reading and written work” for 6-7 hours per

week, “math computation/math computer drills” for 8-10

hours per week and “adaptive P.E. - gymnastics and swimming” for 3-4 hours per week. At the middle school, his

schedule consisted of alternating “red” and “white” days, with

gym, language arts/reading, math and study skills on red days,

and social studies/language arts, computers/vocational, lanVAN DUYN v. BAKER SCHOOL DISTRICT 5J 11767
guage arts and reading on white days. Classes each lasted for

about 80 minutes, and he worked on math skills during his

designated red day math classes as well as during his advisory

time and study skills and computers/vocational classes. Van

Duyn attended gym class, which included a two-week gymnastics segment, on red days, and had swimming lessons

twice per week. 

Van Duyn’s IEP also included a behavior management plan

that was to be implemented full-time. Like the elementary

school that he had previously attended, the middle school

employed a daily behavior card, a visual schedule, social stories and a quiet room. However, his behavior was not accurately recorded on the card, he did not set up his daily

schedule before starting each school day, social stories were

not properly used and he was not ordered to go to the quiet

room after all incidents of misbehavior. 

The IEP further called for all material to be presented at

Van Duyn’s level and for him to be placed in a “selfcontained” special education room. During class, he typically

received one-on-one instruction from his personal aide, Linda

Baxter, as well as some personal instruction from his two

main teachers, Sue Irby and Kathleen Walker. It is unclear

whether he generally proceeded at his own pace or instead

received instruction about whatever subject the class was

studying that day. His classes varied in size from 7 to 15 students and were composed entirely of special education students. 

Other provisions in the IEP required the regional autism

specialist to visit the middle school twice per week, “augmentative communication” services to be provided for two hours

per month and Van Duyn’s aide, Ms. Baxter, to receive state

autism training. The regional autism consultant visited the

middle school a dozen times over the first three months of the

2001-02 school year, and other autism consultants also came

by with some regularity. Augmentative communication ser11768 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
vices were provided to Van Duyn in the form of visual aids,

social stories, creative computer programs and other learning

tools, though not by regional staff. His aide, Ms. Baxter, did

not receive state-level training in educating autistic children,

but she did attend local autism classes and meet with individuals who had worked with him in the past. 

Finally, under the IEP, Van Duyn’s progress was to be

measured by quarterly report cards, and approximately 70

short-term objectives corresponding to a series of annual

goals were to be pursued. The middle school issued quarterly

report cards to Van Duyn containing percentage scores in a

range of categories. Some of these categories corresponded to

the IEP goals while others did not, and on the whole the middle school report cards did not track the IEP as well as the elementary school report cards did. Van Duyn also worked

toward many but not all of the short-term objectives set out

in the IEP. For example, he did not participate in any telephone activities or write a daily note home until December

2001. 

There is evidence that Van Duyn’s reading skills deteriorated during the 2001-02 school year, though it is unclear

whether the regression amounted to three years or less than

one. However, the school’s therapist and psychologist both

testified that his behavior improved in 2001-02 and that he

was more engaged with his surroundings as the year progressed. Ms. Walker also testified that Van Duyn’s math skills

showed progress in 2001-02. Finally, his report cards indicated improvement in the vast majority of categories from

October 2001 to June 2002. 

B. Procedural History

On September 25, 2001, a few weeks after the 2001-02

school year had begun, Van Duyn’s parents filed a request for

a due process hearing pursuant to 20 U.S.C. § 1415(f). They

alleged that the District had completely failed to provide cerVAN DUYN v. BAKER SCHOOL DISTRICT 5J 11769
tain services described in the IEP and materially failed to

implement other IEP provisions. According to his parents,

these failures were depriving Van Duyn of a free appropriate

public education. The ALJ issued a detailed decision on April

8, 2002. She found that the District had failed to implement

the IEP with regard to Van Duyn’s math goals because he was

not being given the requisite 8-10 hours of weekly math

instruction. Accordingly, the ALJ ordered the District to provide Van Duyn with the “average of five hours per week of

instruction in math that he has not been receiving.” In every

other contested area, the ALJ ruled in favor of the District.

She found that Van Duyn’s aide and teachers had been properly trained, that he had been placed in a self-contained classroom, that his teachers had worked with him on oral language

skills, that he had received daily instruction in reading and

that short-term objectives such as taking a daily note home

had not initially been implemented but were now being followed. 

Van Duyn appealed the ALJ’s decision to the district court.

The court first ruled that only events prior to February 1, 2002

(the date of the administrative hearing) could be used to determine whether the District failed to implement the IEP, though

later events could be considered in crafting a remedy. The

court then divided Van Duyn’s allegations of failed implementation into several categories, affording the ALJ’s comprehensive findings considerable deference. The court

concluded that there had been no failure to implement a substantial provision of the IEP. The court also ruled that the District had complied with the ALJ’s order that additional math

instruction be provided to Van Duyn, and that Van Duyn was

not entitled to attorney’s fees because he was not the prevailing party.

Van Duyn timely appealed. We have jurisdiction under 28

U.S.C. § 1291. 

11770 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
II. Standard of Review

We review the district court’s findings of fact for clear

error, even when they are based on the written record of

administrative proceedings. Amanda J. v. Clark County Sch.

Dist., 267 F.3d 877, 887 (9th Cir. 2001). The district court’s

legal conclusions are reviewed de novo. Id. However, “complete de novo review” of the administrative proceeding “is

inappropriate.” Id. Under the IDEA, federal courts are to “receive the records of the administrative proceedings” and

“bas[e their] decisions[s] on the preponderance of the evidence.” 20 U.S.C. § 1415(i)(2)(C). This means that “due

weight” must be given to the administrative decision below

and that courts must not “substitute their own notions of

sound educational policy for those of the school authorities

which they review.” Bd. of Educ. of Henrick Hudson Cent.

Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 206

(1982) (“Rowley”); see also Capistrano Unified Sch. Dist. v.

Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995) (“The amount

of deference accorded the hearing officer’s findings increases

where they are thorough and careful.”) (internal quotations

and citation omitted).

III. Discussion

A. Legal Background 

[1] The IDEA was enacted in 1975 because of Congress’

belief that “the educational needs of millions of children with

disabilities were not being fully met.” 20 U.S.C. § 1400(c)(2).

The statute’s stated purposes include “to ensure that all children with disabilities have available to them a free appropriate

public education . . . designed to meet their unique needs and

prepare them for further educational, employment, and independent living,” and “to ensure that the rights of children with

disabilities and parents of such children are protected.”

§ 1400(d)(1)(A), (B). According to Senator Harrison Williams, the IDEA’s principal drafter, “[t]his measure fulfills the

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11771
promise of the Constitution that . . . handicapped children no

longer will be left out.” 121 Cong. Rec. 37,413 (1975). 

One of the IDEA’s most important mechanisms for achieving these lofty goals is the formulation and implementation of

IEPs. Under § 1414(d), every disabled child must have an IEP

drafted and put into effect by the local educational authority.

The IEP is to be formulated by a team that includes the child’s

parents, regular and special education teachers, a district representative and other individuals with relevant expertise.

§ 1414(d)(1)(B). It must address such matters as the child’s

present level of academic achievement, annual goals for the

child, how progress toward those goals is to be measured and

the services to be provided to the child. § 1414(d)(1)(A)(i).

The child’s parents are entitled to participate in meetings

regarding the IEP, § 1415(b)(1), and must receive written

notice of any proposed changes to the IEP, § 1415(b)(3).

Either the child’s parents or the local educational authority

may bring a complaint to the state educational agency about

any matter relating to the IEP or the child’s free appropriate

public education. § 1415(b)(6), (7). If such a complaint is not

otherwise resolved, a due process hearing is held to determine

“whether the child received a free appropriate public education.” § 1415(f)(3)(E)(i). After going through the due process

hearing and any other available administrative remedies, an

aggrieved party may file a civil action in federal district court.

§ 1415(i)(2)(A). 

The Supreme Court’s first and most significant opinion

interpreting the IDEA was its 1982 decision in Rowley, in

which the Court considered the content of an IEP that was

allegedly deficient because it did not call for a sign-language

interpreter to assist the deaf child in all of her classes. The

Court rejected this challenge, concluding that all of the

IDEA’s procedural requirements had been followed and that

the statute did not aim “to maximize the potential of each

handicapped child” but rather merely “to provide them with

access to a free public education.” 458 U.S. at 200 (emphasis

11772 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
added). The Court also set out a two-part test for evaluating

complaints about the content of an IEP: “First, has the State

complied with the procedures set forth in the Act? And second, is the individualized educational program developed

through the Act’s procedures reasonably calculated to enable

the child to receive educational benefits?” Id. at 206-07 (internal footnotes omitted). 

We have applied the Rowley framework in numerous cases.

See, e.g., M.L. v. Federal Way Sch. Dist., 394 F.3d 634, 644-

46 (9th Cir. 2005); Amanda J., 267 F.3d at 890-95; Wartenberg, 59 F.3d at 891-97. However, we have not previously

considered challenges to the implementation — as opposed to

the content — of an IEP. As discussed in more detail below,

the Fifth Circuit addressed IEP implementation challenges in

Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341 (5th Cir.

2000), holding that de minimis failures to implement an IEP

do not amount to a violation of the IDEA, but rather that the

statute is violated only by failures to implement “substantial”

or “significant” IEP provisions. Id. at 349. The Eighth Circuit

took a similar position in Neosho R-V Sch. Dist. v. Clark, 315

F.3d 1022 (8th Cir. 2003), holding that the IDEA is violated

when a school fails to implement an “essential” element of an

IEP, i.e., an element “necessary for the child to receive an

educational benefit.” Id. at 1027 n.3. 

B. Violations of the IDEA’s Procedural Requirements

Against this background, we turn to Van Duyn’s argument

that the District’s alleged failures to implement his IEP

amounted to both a violation of the IDEA’s procedural

requirements and a substantive violation that denied him a

free appropriate public education. We conclude there were

neither procedural nor substantive violations of the statute. 

Van Duyn’s first contention is that by failing to implement

portions of the IEP, the District “changed” the IEP without

notifying his parents in advance — a violation of the IDEA’s

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11773
procedural requirements for the formulation and revision of

IEPs. See § 1415(b)(3). In his view, this procedural defect

impeded his parents’ right to participate in decisions regarding the IEP and hence violated the statute even if he cannot

directly establish that he was deprived of educational benefits

or a free appropriate public education. See

§ 1415(f)(3)(E)(ii)(II) (IDEA violated if procedural flaws

“significantly impede[ ] the parents’ opportunity to participate

in the decisionmaking process regarding the provision of a

free appropriate public education to the parents’ child”). 

[2] Van Duyn’s procedural argument fails because there is

no evidence in the record that the District ever attempted to

change his IEP after the 2001-02 school year began. He points

to no concrete proposals to change the IEP, nor is there any

testimony or documentary evidence that the District decided

to revise the IEP in secret. The District did request a

“[m]eeting to discuss Augmentative Communication and

Autism Service Time” in May 2001. But Van Duyn’s parents

were notified about the meeting, it took place well before the

2001-02 school year started and it resulted in no change to the

IEP because the IEP team decided that “[t]ransitioning to a

new school and teachers is a major change for an Autistic student and more services are needed.” 

[3] Van Duyn’s procedural argument thus boils down to the

novel proposition that failures to implement an IEP are equivalent to changes to an IEP. If accepted, this proposition would

convert all IEP implementation failures into procedural violations of the IDEA, but there is no indication that a conflation

of this sort is intended or permitted by the statute. Moreover,

the one case that Van Duyn cites as support, an unpublished

Maryland district court decision, is unhelpful to him. Manalansan v. Board of Educ. of Baltimore City, No. Civ. AMD

01-312, 2001 WL 939699 (D. Md. Aug. 14, 2001) (unpublished), held that the Baltimore educational authority violated

the IDEA because of substantive failures in implementing an

IEP — not because of any procedural shortcomings in the

11774 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
IEP’s formulation or implementation. See 2001 WL 939699,

at *15 (free appropriate public education denied because “the

only rational determination . . . is that defendants have failed

to implement Brandon’s IEP”). Like all other courts to have

considered the relationship between IEP implementation failures and IDEA procedural violations, Manalansan understood

the tardiness and absences of the plaintiff’s aides as failures

to implement the IEP, not surreptitious attempts to alter it. 

C. Failures To Implement the IEP

We therefore turn to Van Duyn’s principal contention —

that the District in fact failed to implement portions of his

IEP. In addressing his argument, we hold that the ALJ did not

erroneously allocate the burden of proof at the administrative

hearing, that state contract law does not apply to the interpretation of an IEP and that only material failures to implement

an IEP constitute violations of the IDEA. Applying this standard, we conclude that none of the implementation failures

that Van Duyn alleges was material. 

1. Burden of Proof

[4] Van Duyn argues that the ALJ erroneously placed the

burden of proof on him to establish that the District failed to

implement the IEP. Although the ALJ never specified which

party bore the burden, even if she did place the burden on Van

Duyn, doing so was proper under Schaffer v. Weast, 546 U.S.

49 (2005). The Supreme Court held in Schaffer that “[t]he

burden of proof in an administrative hearing challenging an

IEP is properly placed upon the party seeking relief.” Id. at

537. Van Duyn, as the party objecting to the IEP’s implementation, thus bore the burden of proof at the administrative

hearing. 

[5] Van Duyn contends that Schaffer is inapplicable

because it dealt with a challenge to the content rather than the

implementation of an IEP, but that is a distinction without a

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11775
difference. Nothing in Schaffer hinged on the kind of challenge being made to the IEP. Rather, the Court cited “the

ordinary default rule that plaintiffs bear the risk of failing to

prove their claims,” holding that “[a]bsent some reason to

believe that Congress intended otherwise, . . . we will conclude that the burden of persuasion lies where it usually falls,

upon the party seeking relief.” Id. at 535; see also Stringer v.

St. James R-1 Sch. Dist., 446 F.3d 799, 803 (8th Cir. 2006)

(following Schaffer in context of claim that IEP was not being

implemented). Neither Schaffer nor the text of the IDEA supports imposing a different burden in IEP implementation

cases than in formulation cases. Accordingly, we hold that if

the ALJ placed the burden of proof on Van Duyn, that allocation was correct.2

2. Interpretation of the IEP

[6] Van Duyn next argues that contested terms in the IEP

should be interpreted under Oregon contract law, in particular

the principle that ambiguities must be resolved in Van Duyn’s

favor because the document was drafted by the District for his

benefit. This argument, raised for the first time on appeal, is

meritless. First, the IEP is entirely a federal statutory creation,

and courts have rejected efforts to frame challenges to IEPs

as breach-of-contract claims. See, e.g., Ms. K. v. City of South

Portland, 407 F. Supp. 2d 290, 301 (D. Me. 2006) (“[A]n IEP

is not a legally binding contract.”). Van Duyn offers no example of a court treating an IEP as a contract, nor have we been

able to locate any. 

2There is language that appears to impose the burden on the school district in Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1398 (9th Cir.

1994). But that language is in direct conflict with the Court’s subsequent

decision in Schaffer, and is also mere dictum since only the burden of

proof at the district court (as opposed to administrative) level was at issue

in Clyde K. See also B.B. ex rel. J.B. v. Hawaii Dep’t of Educ., 2006 WL

3002235, *6 (D. Haw. Oct. 19, 2006) (noting that “the law [has] changed”

since Clyde K. as a result of the Court’s decision in Schaffer). 

11776 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
[7] Second, even if the principle that ambiguous terms are

interpreted against the drafting party applied, it would not

help Van Duyn. His parents played a central role in the drafting of the IEP, so it is unclear who the IEP’s “author” is for

contract law purposes. In addition, the terms Van Duyn cites

as ambiguous simply do not mean what he claims, even taking the favorable contract law principle into account. In our

view, Van Duyn’s real objection is not to the ambiguity of the

IEP’s terms but rather to its omission of additional requirements for the District. This is not a problem we can solve. An

IEP is not a contract — but even if it were, we could not read

into it additional terms the parties did not agree to include. 

3. The Materiality Standard

[8] The core of Van Duyn’s case is his allegation that the

District failed to implement his IEP. Because most IDEA

cases involve the formulation rather than the implementation

of an IEP, our court has not yet articulated the standard for

assessing an IEP’s implementation. To determine this standard, we look to both the statutory text and decisions of other

courts. 

[9] The IDEA defines a free appropriate public education

as “special education and related services that . . . are provided in conformity with the [child’s] individualized education program.” § 1401(9). The statute also allows a party to

challenge an IEP because of procedural flaws in the IEP’s formulation as well as “on substantive grounds based on a determination of whether the child received a free appropriate

public education.” § 1415(f)(3)(E)(i). This language surely

indicates that a failure to implement an IEP may deny a child

a free appropriate public education and thereby give rise to a

claim under the statute. The language also counsels against

making minor implementation failures actionable given that

“special education and related services” need only be provided “in conformity with” the IEP. There is no statutory

requirement of perfect adherence to the IEP, nor any reason

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11777
rooted in the statutory text to view minor implementation failures as denials of a free appropriate public education. 

[10] As noted earlier, the Supreme Court in Rowley was

faced with a challenge to an IEP’s content. Nevertheless, the

Court’s approach is instructive in the IEP implementation

context as well. In particular, it is significant that, according

to the Court, procedural flaws in an IEP’s formulation do not

automatically violate the IDEA, but rather do so only when

the resulting IEP is not “reasonably calculated to enable the

child to receive educational benefits.” 458 U.S. at 207. This

suggests that minor failures in implementing an IEP, just like

minor failures in following the IDEA’s procedural requirements, should not automatically be treated as violations of the

statute. The Court’s description of the IDEA’s purpose as providing a “basic floor of opportunity” to disabled students

rather than a “potential-maximizing education” also supports

granting some flexibility to school districts charged with

implementing IEPs. Id. at 197 n.21, 201.

The two circuits to have explicitly addressed IEP implementation failures both did so in a manner consistent with our

reading of the statutory text and Rowley. In Bobby R., the

Fifth Circuit considered a disabled child whose IEP had not

been perfectly implemented and whose academic performance

had improved in some areas and declined in others. The court

held that “to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than

a de minimis failure to implement all elements of that IEP,

and, instead, must demonstrate that the school board or other

authorities failed to implement substantial or significant provisions of the IEP.” 200 F.3d at 349. Employing this standard,

the court concluded that conceded implementation failures did

not violate the IDEA because “the significant provisions of

[the child’s] IEP were followed, and, as a result, he received

an educational benefit.” Id.3

3The implementation failures in Bobby R. included not providing the

one hour a week of speech therapy required by the IEP for part of the

11778 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
Similarly, the Eighth Circuit held in Clark that the IDEA

is violated “if there is evidence that the school actually failed

to implement an essential element of the IEP that was necessary for the child to receive an educational benefit.” 315 F.3d

at 1027 n.3. To determine if the “fact that no cohesive plan

was in place to meet [the child’s] behavioral needs” gave rise

to a statutory violation, the court considered both the shortfall

in services provided and evidence regarding the child’s progress in several areas. Id. at 1029. The court concluded that the

IDEA was indeed violated because the actions taken by the

school “did not appropriately address [the child’s] behavior

problem,” id. at 1028, and “any slight benefit obtained was

lost due to behavior problems that went unchecked and interfered with [the child’s] ability to obtain a benefit from his

education.” Id.

[11] In accordance with the IDEA itself, the Court’s decision in Rowley and the decisions of our sister circuits, we hold

that a material failure to implement an IEP violates the IDEA.

A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled

child and the services required by the child’s IEP. Because the

parties debate whether Van Duyn’s skills and behavior

1994-95 academic year and not offering a special speech program during

the first two months of the 1996-97 academic year. See id. at 344, 348.

The school sought to compensate for these shortcomings by providing 25

hours of speech therapy during the summer of 1995 and offering supplemental services in 1996-97 (which were rejected by the parents). See id.

Bobby R. went on to consider whether the child had benefitted from the

IEP, holding that, despite some contrary testimony, “the objective evidence of increased scores and grade levels” showed that the child had

received an educational benefit. Id. at 350. The court’s discussion of educational benefit was responsive to one of four factors that govern in the

Fifth Circuit. See Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118

F.3d 245, 247-48 (5th Cir. 1997). We, of course, are not bound to follow

the Cypress-Fairbanks factors, and we would disagree with Bobby R. if it

meant to suggest that an educational benefit in one IEP area can offset an

implementation failure in another. 

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11779
improved or deteriorated during the 2001-02 school year, we

clarify that the materiality standard does not require that the

child suffer demonstrable educational harm in order to prevail. However, the child’s educational progress, or lack of it,

may be probative of whether there has been more than a

minor shortfall in the services provided. For instance, if the

child is not provided the reading instruction called for and

there is a shortfall in the child’s reading achievement, that

would certainly tend to show that the failure to implement the

IEP was material. On the other hand, if the child performed

at or above the anticipated level, that would tend to show that

the shortfall in instruction was not material. We also emphasize that nothing in this opinion weakens schools’ obligation

to provide services “in conformity with” children’s IEPs.

§ 1401(9). IEPs are clearly binding under the IDEA, and the

proper course for a school that wishes to make material

changes to an IEP is to reconvene the IEP team pursuant to

the statute — not to decide on its own no longer to implement

part or all of the IEP. See §§ 1414(d)(3)(F), 1415(b)(3).4

4Our dissenting colleague criticizes the standard set forth here as inconsistent with the statutory text, “inappropriate for the judiciary” and “unworkably vague.” Dissent at 11788. Although we share the dissent’s

concerns for the welfare of disabled schoolchildren, we respectfully disagree with its proposed per se rule. First, there is no tension between the

IDEA and the materiality standard, because services to a disabled child are

still provided “in conformity with” or “in accordance with” the child’s IEP

if an implementation failure is not material. See 20 U.S.C. § 1401(9)(D);

34 C.F.R. § 300.323(c)(2). We do not believe we must interpret the IDEA

in such a way that even minor implementation failures automatically violate the statute, nor has any other court done so. Second, although a materiality standard lacks the precision of the dissent’s proposed per se rule,

determining “materiality” has been a part of judging for centuries — for

example, deciding whether a contractual breach is material. See, e.g.,

American Law Institute, Restatement (Second) of Contracts § 241 (1981)

(discussing concept of material breach); Krebs Hop Co. v. Livesley, 92 P.

1084, 1086-87 (Or. 1907) (same). For this reason, not even Van Duyn has

advocated a per se rule like the dissent’s; indeed, at oral argument his

counsel agreed that a standard akin to that endorsed in Bobby R. would be

satisfactory. 

11780 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
4. Implementation of the IEP

Applying the standard for evaluating alleged IEP implementation failures here, we turn to the various areas in which

Van Duyn asserts that the District failed to implement his

IEP. Because both the ALJ and the district court have already

considered at length Van Duyn’s alleged implementation failures — and because we largely agree with their analyses —

we focus on what we understand to be Van Duyn’s weightiest

claims: that he did not receive sufficient math instruction, that

his behavior management plan was not implemented properly,

that work was not presented at his level and that he was not

placed in a self-contained classroom.5

[12] First, Van Duyn’s IEP required 8-10 hours of math

instruction per week. The ALJ found that he was not being

provided with sufficient instruction and therefore ordered that

he receive the “five hours per week of instruction in math that

he has not been receiving.” We agree that the initial five-hour

shortfall was a material implementation failure. Van Duyn

5On the remaining allegations of implementation failure, our conclusions, briefly, are as follows: Van Duyn did receive daily reading and writing instruction, as required by his IEP, since he had language arts/reading

on red days and three relevant classes on white days. He did not work

toward all of the short-term objectives laid out in his IEP, but this failure

was not material given the extremely large number of such objectives. The

IEP did not require augmentative communication services to be provided

solely by regional staff, only that Van Duyn be exposed to such services

for two hours per month, which he was. The regional autism consultant’s

failure to visit the school twice-weekly was not material given the frequent

visits that she and the other autism consultants made. Van Duyn did take

part in gymnastics and swimming for approximately the required amount

of time per week. The middle school report cards largely resembled the

elementary school report cards used previously and tracked many of the

IEP’s goals and short-term objectives. And even though she was never

trained at the state level, Ms. Baxter did attend autism classes and meet

with people knowledgeable about Van Duyn’s experience with the condition. Accordingly, the District did not materially fail to implement Van

Duyn’s IEP in any of these areas. 

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11781
now claims that only 100 minutes of math instruction per

week were added in response to the ALJ’s order and that the

District was thus still not in compliance with the IEP. However, he makes no effort to rebut the testimony to the contrary

by Ms. Walker, who taught three of Van Duyn’s eight classes,

and Ms. Irby, his other main teacher. Ms. Walker testified that

Van Duyn worked on math in two red day classes, one white

day class and his “advisory time,” and therefore received the

requisite math instruction. Similarly, Ms. Irby testified that

Van Duyn used math computer programs in her classes for

roughly 100 minutes per week. We therefore hold that after

the District’s corrective actions, there was no material failure

to provide Van Duyn with the required amount of weekly

math instruction.6

Second, Van Duyn is correct that several elements of his

behavior management plan were not implemented in the same

way at the middle school as at the elementary school. The

daily behavior card was not used as strictly as it was before.

Social stories were never employed in Ms. Walker’s three

classes and were improperly used by Ms. Baxter and Ms.

Irby. And Van Duyn was not told to go to the “quiet room”

after all incidents of misbehavior, nor was the room adequately equipped until just before the administrative hearing.

[13] Although we do not condone these failures to implement the behavior management plan, we conclude that they

were not material for several reasons. First, the IEP did not

clearly describe how the daily behavior card, social stories

and quiet room were used at the elementary school, nor did

it require that they be used in the same way at the middle

6Our conclusion is bolstered by the fact that Van Duyn’s math skills

appear to have improved in 2001-02. Ms. Walker testified that he made

progress toward his measurable annual goal in math and that “[h]e’s really

good with adding. He’s fast. He is, he’s like a little machine on some

problems.” Ms. Walker added that Van Duyn’s IEP team was looking to

add new, more difficult math goals for the 2002-03 calendar year. 

11782 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
school. It is undisputed that the behavior management plan

was not implemented identically at the two schools, but the

IEP did not say that it had to be. Second, the middle school

did employ many of the techniques outlined in the behavior

management plan, even if not quite as Van Duyn envisioned.

Third, there is evidence that the elementary school behavior

management plan was inappropriate for the middle school

context. Van Duyn’s former aide testified that “[i]t looks to

me like the system that we used at South Baker doesn’t work

at the middle school, and so it’s not being used the same.”

Finally, Van Duyn’s behavior appears to have improved in

2001-02. The school speech therapist stated that while “in the

previous [reports] it’s mentioned that Chris doesn’t notice

others in his environment,” “[t]he following year we see that

Chris does notice others in his environment and is engaging

more.” The school psychologist added that Van Duyn was

being sent to the quiet room only about once per month at the

middle school, a much lower rate than at the elementary

school. 

[14] Next, there is some ambiguity in the record about

whether, as required by the IEP, work was presented at Van

Duyn’s level. On the one hand, Ms. Baxter testified that what

Van Duyn would learn about on any given day depended on

what the class was taught that day. On the other hand, his two

main teachers, Ms. Walker and Ms. Irby, testified that he was

never subjected to lecture-style teaching and generally

received one-on-one instruction. Ms. Walker described “filter-

[ing] around to the students” while Ms. Irby stated that Van

Duyn’s instruction was largely one-on-one with her or the

assistant. On this conflicting record, we cannot conclude that

the District materially failed to present work at Van Duyn’s

level. We also note that there is no evidence that his educational progress was hindered as a result of exposure to materials that were too advanced for him. 

Finally, the parties dispute the meaning of “self-contained

sp[ecial] ed[ucation] room” and whether Van Duyn was proVAN DUYN v. BAKER SCHOOL DISTRICT 5J 11783
vided with such placement. He contends that his IEP required

a learning environment like the one he enjoyed at the elementary school, with a single classroom where highly disabled

students receive instruction individually or in small groups

and there is complete flexibility as to the timing and content

of instruction. See Ash v. Lake Oswego Sch. Dist. No. 7J, 766

F. Supp. 852, 856 (D. Or. 1991) (self-contained classroom

contains 8-12 students with one teacher and two aides). The

District, however, asserts that a self-contained classroom is a

“service” rather than a “placement,” and exists whenever a

student spends more than 60 percent of his time in a special

education classroom. 

[15] Even under Van Duyn’s definition, which appears

nowhere in the IEP and is at odds with Oregon practice as

well as the testimony of one of his own witnesses, we hold

that the District did not materially fail to provide him with a

self-contained classroom. His class sizes varied from 7 to 15

students (a range with an almost identical midpoint to the 8-

12 range cited in Ash), and there were always one teacher and

one aide present (comparable to the one teacher and two aides

in Ash). Whereas the student-teacher/aide ratio was somewhat

higher in the middle school than in Ash, it is significant that

Ms. Baxter was Van Duyn’s personal full-time aide. There is

no indication that the two aides in Ash were specifically designated for individual students. 

Furthermore, there was substantial flexibility in the instruction that Van Duyn received at the middle school. While he

was on a block schedule with set times for classes, he could

take breaks whenever they were necessary, he received constant attention from Ms. Baxter and frequent one-on-one

instruction from Ms. Walker and Ms. Irby and the projects he

worked on were typically unrelated to his classes’ nominal

subject matter. This may not have been quite as beneficial a

learning environment as the elementary school, but we cannot

conclude that it constituted a material failure to provide Van

Duyn with a self-contained classroom. 

11784 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
[16] We therefore hold that the District did not materially

fail to implement any provisions in Van Duyn’s IEP (with the

exception of the math instruction requirement, which we hold

was satisfied after the ALJ’s order). 

D. Attorney’s Fees

Van Duyn requests two remedies from this court: compensatory education and attorney’s fees. No compensatory education is warranted because he has failed to establish any

material failure by the District in implementing his IEP. Contrary to the district court, however, we hold that Van Duyn is

entitled to reasonable attorney’s fees for the administrative

hearing to the extent he partially prevailed in that proceeding,

but only for counsel other than his attorney-mother. 

[17] Under the IDEA, “the court, in its discretion, may

award reasonable attorney’s fees as part of the costs . . . to a

prevailing party who is the parent of a child with a disability.”

20 U.S.C. § 1415(i)(3)(B)(i) (emphasis added). A prevailing

party is one who “succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in

bringing the suit.” Parents of Student W. v. Puyallup Sch.

Dist., No. 3, 31 F.3d 1489, 1498 (9th Cir. 1994) (internal quotation omitted). The success must materially alter the parties’

legal relationship, cannot be de minimis and must be causally

linked to the litigation brought. Id.; see also Park v. Anaheim

Union High Sch. Dist., 464 F.3d 1025, 1034-37 (9th Cir.

2006). 

Under this standard, Van Duyn was not the prevailing party

at the district court level because that court affirmed the

ALJ’s decision in its entirety and refused to grant him any

additional relief. Van Duyn also was not the prevailing party

in his challenge to his 2002-03 IEP before the Oregon Department of Education because the Department did not revisit the

contested IEP but rather ordered the parties to work together

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11785
to formulate a new IEP for the 2003-04 school year. Nor, of

course, is he the prevailing party here. 

[18] We hold, however, that Van Duyn was the prevailing

party at the administrative hearing to the extent the ALJ ruled

in his favor regarding the amount of math instruction he was

due. The amount of math instruction was a “significant issue”

in the proceeding, and the remedy the ALJ ordered — an

additional five hours of math instruction per week — clearly

produced “some of the benefit” that Van Duyn sought. See

Parents of Student W., 31 F.3d at 1498. The District is correct

that the math instruction issue was only one issue out of 11

raised at the administrative hearing, but there is no reason to

view it as less important than Van Duyn’s other claims;

indeed, it appears weightier than several of them. The relevant

point is that he prevailed on the issue’s merits and obtained

a remedy — the extra weekly math instruction — that materially altered his legal relationship with the District. The District argues that because the ALJ ordered only the provision

of services already required by the IEP, there was no change

in the parties’ existing legal relationship. We reject this argument because the ALJ’s order created a legal obligation for

the District to provide services that it had not previously been

offering. Were the District’s argument accepted, it would

mean that a plaintiff in an implementation failure suit could

win attorney’s fees only if he was awarded not only the remedies mandated by his IEP, but also compensatory education

(or other relief) not called for by his IEP. 

[19] The District correctly argues, however, that attorney’s

fees should not be granted to parent attorneys who represent

their children in IDEA proceedings. See Ford v. Long Beach

Unified Sch. Dist., 461 F.3d 1087, 1090 (9th Cir. 2006)

(“Next, we must determine whether the IDEA authorizes

attorneys’ fees for attorney-parents. We join three other circuits in concluding that it does not.”). Accordingly, Van Duyn

is entitled to attorney’s fees for the administrative hearing, but

only for counsel other than his mother. We remand to the dis11786 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
trict court to determine the appropriate sum. On remand, the

court has discretion to consider that Van Duyn prevailed on

one issue at the administrative hearing but lost on all the others. See 20 U.S.C. § 1415(i)(3)(B) (“[T]he court, in its discretion, may award reasonable attorney’s fees . . . .” ) (emphasis

added); Aguirre v. Los Angeles Unified Sch. Dist., 461 F.3d

1114, 1118 (9th Cir. 2006) (“ ‘[T]he level of a[n IDEA] plaintiff’s success is relevant to the amount of fees to be awarded.’ ”) (quoting Hensley v. Eckerhart, 461 U.S. 424, 430

(1983)). 

IV. Conclusion

We hold that any failures by the District to implement Van

Duyn’s IEP did not constitute violations of the IDEA’s procedural requirements. We also hold that any such failures were

not material. A material failure to implement an IEP occurs

when there is more than a minor discrepancy between the services a school provides to a disabled child and the services

required by the child’s IEP. Applying that standard here, the

services the District provided were not materially different

from what was required by the IEP (again with the exception

of the math instruction provided prior to the ALJ’s order).

Finally, because Van Duyn partially prevailed in the administrative proceeding, he is to that extent entitled to reasonable

attorney’s fees, but not for his mother’s legal services. The

parties shall bear their own costs on appeal. 

AFFIRMED IN PART AND REVERSED IN PART;

REMANDED.

FERGUSON, Circuit Judge, dissenting:

I.

The majority involves the judiciary in determining the “materiality” of a school district’s failure to implement a student’s

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11787
Individualized Education Program (“IEP”). This standard is

inconsistent with the text of the Individuals with Disabilities

Education Act (“IDEA”), inappropriate for the judiciary, and

unworkably vague. Given the extensive process and expertise

involved in crafting an IEP, the failure to implement any portion of the program to which the school has assented is necessarily material. Therefore, I respectfully dissent.

II.

Under the IDEA, once a school district identifies or

assesses a student as learning disabled, it must convene an

IEP Team to determine the special needs of the child. 20

U.S.C. § 1414. The IEP Team consists of the child, the child’s

parents, at least one regular education teacher (if mainstream

participation is contemplated), at least one special education

teacher, a specially qualified representative of the school district, an individual who can interpret the instructional implications of evaluation results, and other individuals with

expertise regarding the child’s needs and disability.

§ 1414(d)(1)(B). 

Once convened, this IEP Team meets as many times as

necessary to draft an IEP for the student. § 1414(d). The IEP

is the central document that guides a child’s special education.

It details the child’s present levels of academic achievement,

his or her goals, the criteria for measuring progress, and the

services and accommodations that the school has committed

to providing. § 1414(d)(1)(A)(i). An IEP is the product of an

extensive process and represents the reasoned conclusion of

the IEP Team that the specific measures it requires are necessary for the student to receive a free appropriate public education (“FAPE”). The school is required to implement the IEP

as part of the IDEA’s broad, overarching purpose “to ensure

that all children with disabilities have available to them a free

appropriate public education.” § 1400(d)(1)(A). 

A school district’s failure to comply with the specific measures in an IEP to which it has assented is, by definition, a

11788 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
denial of FAPE, and, hence, a violation of the IDEA. See

§ 1401(9)(D) (“The term ‘free appropriate public education’

means special education and related services that . . . are provided in conformity with the individualized education program.”) (emphasis added); M.L. v. Fed. Way Sch. Dist., 394

F.3d 634, 642 (9th Cir. 2005) (quoting statutory definition of

FAPE); 34 C.F.R. § 300.323(c)(2) (“Each public agency must

ensure that . . . special education and related services are

made available to the child in accordance with the child’s

IEP.”) (emphasis added). 

Judges are not in a position to determine which parts of an

agreed-upon IEP are or are not material.1 The IEP Team, consisting of experts, teachers, parents, and the student, is the

entity equipped to determine the needs of a special education

student, and the IEP represents this determination. Although

judicial review of the content of an IEP is appropriate when

the student or the student’s parents challenge the sufficiency

of the IEP, see, e.g., M.L., 394 F.3d at 642, such review is not

appropriate where, as here, all parties have agreed that the

content of the IEP provides FAPE. Having so agreed, the

school district must “provide[ ] [special education and related

services] in conformity with the individualized education program.” 20 U.S.C. § 1401(9)(D). 

Instead of trying to understand how material a failure is, we

must assume that the IEP Team knew what it was doing when

it settled on a specific educational service. Each IEP Team

chooses specific services with specific quantities and durations for the purpose of providing the student with FAPE. If

the IEP Team had thought another, lesser service would be

sufficient to provide FAPE, it would have included that service in the IEP. 

1The majority contends that “determining ‘materiality’ has been a part

of judging for centuries.” See maj op. at 11780 n.4. Curiously, it gives the

example of contract law to prove this point. Id. Yet only a few pages earlier, it states, in no uncertain terms, that “[a]n IEP is not a contract” and

that contract law is irrelevant in cases like this one. Id. at 11777. 

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11789
Of course, if after implementing the IEP, the school district

believes that portions of the program are not essential to providing FAPE, it is free to amend the IEP through the required

channels, including a reconvening of the IEP Team.

§ 1415(b)(3). But allowing the school district to disregard

already agreed-upon portions of the IEP would essentially

give the district license to unilaterally redefine the content of

the student’s plan by default. Such license undermines the

collaborative role of the IEP Team and ignores the parental

participation provisions of the IDEA. § 1414(d)(3)(A)(ii), (e).

The majority’s standard also suffers from vagueness. It

holds that “[a] material failure occurs when there is more than

a minor discrepancy between the services provided to a disabled child and those required by the IEP.” It provides little

guidance as to what constitutes a minor discrepancy. If an IEP

requires ten hours per week of math tutoring, would the provision of only nine hours be “more than a minor discrepancy”?

Eight hours? Seven hours? Because most IEPs contain such

quantitative requirements for special education services, the

majority’s standard will provide little guidance in resolving

these implementation issues.

III.

In the present case, no one disputes that the district failed

to fully implement the IEP. In particular, the IEP required,

inter alia, that (1) Christopher’s aide and teacher would be

trained in autism by the State; (2) Christopher would receive

augmentative communication services for two hours per

month from a regional provider; (3) the Autism Consultant

would visit Christopher’s school twice weekly for the “first

few months;” (4) Christopher’s report card would use his current goals; (5) all work would be presented at Christopher’s

level; and (6) the school would fully implement Christopher’s

Behavior Management Plan. None of these services was provided as specified in the IEP. 

11790 VAN DUYN v. BAKER SCHOOL DISTRICT 5J
At Christopher’s initial hearing challenging the implementation of the IEP, the Administrative Law Judge properly

began its inquiry with the question, “Did the District fail to

implement [Christopher’s] Individualized Education Program?” It then went a step further, however, asking, “If so,

did that failure result in a loss of educational opportunity such

that [Christopher] has been denied a Free and Appropriate

Public Education.” The district court and the majority appear

to follow this same sequence of questions. Yet, only the first

question is relevant. Having determined that the school district failed to implement the IEP, our inquiry must end. 

The IEP Team crafted the IEP with an eye toward providing Christopher with FAPE. Any subsequent deviation is necessarily material. For example, Christopher’s IEP Team

concluded that the aide who spent all day, every day with this

severely autistic child must be trained by the State in working

with autistic children. If the IEP Team had determined, as the

majority has, that it was sufficient to have the aide attend

“local autism classes and meet with individuals who had

worked with [Christopher] in the past,” it would have explicitly stated as much in the IEP. The majority also finds it

excusable that the school district did not work toward all of

Christopher’s short-term objectives, “given the extremely

large number of such objectives.” If the IEP Team thought

fewer objectives were sufficient to provide FAPE, it could

have included fewer. 

Not having met with Christopher and worked extensively

on his educational needs, this panel is not in a position to

determine whether any of these failings was material. We do

know, however, that Christopher’s IEP Team, made up of

twelve members including representatives of the district,

thought that each of these measures was sufficiently important

to be included in the IEP. We should not now second-guess

whether such inclusions, or the failure to provide them, were

material. 

VAN DUYN v. BAKER SCHOOL DISTRICT 5J 11791
IV.

I would reverse the district court and hold that the school

district’s failure to fully implement the IEP, to which it

expressly assented, violates the IDEA.

11792 VAN DUYN v. BAKER SCHOOL DISTRICT 5J