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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 1 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

J.L., M.L, and K.L., their minor daughter, 

 Plaintiffs, 

 v. 

MERCER ISLAND SCHOOL 

DISTRICT, 

 Defendant. 

CASE NO. C06-494MJP 

ORDER ON REMAND: PETITION 

FOR JUDICIAL REVIEW 

The above-entitled Court, having received and reviewed 

1. Plaintiffs’ Opening Brief on Remand (Dkt. No. 76) 

2. District’s Response on Remand (Dkt. No. 77) 

3. Plaintiffs’ Reply Brief on Remand (Dkt. No. 78) 

all attached declarations and exhibits, and having heard oral argument, makes the following 

ruling: 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 2 

IT IS ORDERED the original decision of the Administrative Law Judge is AFFIRMED; 

Plaintiffs’ request for a declaratory judgment that the minor K.L. was denied a free appropriate 

education under the Individuals with Disabilities Education Act or state law by Defendant 

Mercer Island School District is DENIED. 

Background

This case concerns the application of the Individuals with Disabilities Education Act 

(IDEA), 20 U.S.C. § 1400 et seq. and 34 CFR Part 300 et seq., and the implementing state 

regulations (WAC 392 et seq.). Plaintiffs appeal from the decision of an Administrative Law 

Judge (ALJ) that their daughter, K.L., was afforded a “free appropriate public education” 

(FAPE) by the Individualized Education Programs (IEP’s) developed and implemented by 

Defendant Mercer Island School District (MISD, or the District). 

 The facts as reviewed by this Court are taken from the ALJ’s Findings of Fact, found in 

the Administrative Record (AR) at pages 311-354. As they have been extensively recited in 

previous orders of this Court and in the Ninth Circuit opinion in this matter, they will not be 

repeated here. 

 It is enough to note that events culminated in a request by the Parents that MISD 

reimburse them for the placement of their daughter in a private school for learning-disabled 

students (the Landmark School). That request was initially adjudicated by means of a due 

process hearing pursuant to 20 U.S. C. § 1415(f). Following eleven days of testimony and 

reviewing evidence, the ALJ found that the District had provided K.L. with a FAPE in 

accordance with the requirements of Rowley; tuition reimbursement was denied. AR 368-69. 

Parents thereafter sought review in the district court as permitted by 20 U.S.C. § 1415(i)(2)(A). 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 3 

 This Court initially found in Plaintiffs’ favor and remanded to the ALJ with directions to 

make new findings in accord with the determination that: 

1. MISD’s Individual Education Plans for K.L. were deficient 

2. K.L. was denied a FAPE for Grades 8 - 10 as a result 

3. The Individual Disability Education Act (IDEA) requires that the minor receive a 

“meaningful educational benefit” which envisions post-secondary self-sufficiency. 

Order on Petition for Judicial Review, Dkt. No. 26. 

On May 25, 2007, the ALJ issued her Findings of Fact, Conclusions of Law, and Order 

on Remand. Dkt. No. 48. She concluded that K.L.’s placement at the Landmark School was 

appropriate. Id., Conclusions of Law, ¶ 8. For the presentation of inadequate IEPs and the 

denial of a FAPE in K.L.’s 10th and 11th grade years, the ALJ awarded Parents reimbursement 

for the cost of K.L.’s 10th and 11th grade enrollment (including residential costs) at Landmark. 

Id., ¶ 11. However, that award was reduced by the cost of 7 months’ enrollment as an offset, 

based on the ALJ’s conclusion that Parents had unreasonably delayed the District’s evaluation of 

K.L. prior to her 10th grade year. Id., ¶ 15. On the issue of “compensatory education,” the ALJ 

awarded Parents the cost of K.L.’s enrollment at Landmark for her 12th grade year based on the 

denial of a FAPE in the minor student’s 8th and 9th grade years. Id., ¶ 20. 

 Plaintiffs moved for judgment based on the new ALJ ruling. This Court awarded 

reimbursement of K.L.’s 10th and 11th grade tuition (with no offset) and further awarded K.L.’s 

12th grade tuition as compensation for denial of FAPE in her 8th and 9th grade years. Dkt. No. 

53. Parents were also awarded attorney’s fees and costs. Dkt. No. 60. The District appealed 

that judgment. Dkt. No. 61. 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 4 

 The Ninth Circuit overturned this Court’s decision. J.L., et al. v. Mercer Island School 

District, 592 F.3d 938 (9th Cir. 2010). The finding of some procedural violations in the 

preparation and implementation of the IEP’s was reversed outright. The Court of Appeals 

remanded the remainder of the decision with instructions that this Court “review the ALJ’s 

determination that the District provided K.L. with a free appropriate public education pursuant to 

the ‘educational benefit’ standard set forth in Rowley [Board of Education of the Hendrick 

Hudson Central School District v. Rowley, 458 U.S. 176 (1982)].” Id. at 953. 

 This order is issued in response to that remand, following briefing and oral argument by 

the parties on the issues which remain for this Court’s determination. 

Discussion

 The major issue in this case, both in the Court’s original rulings and on remand, 

continues to be the degree of deference to be accorded, not only to the ALJ’s findings, but also to 

the District in its efforts to assess K.L.’s needs and (through the IEP’s and the resources of their 

educational system) to meet those needs in a manner consistent with federal and state 

requirements. 

 It is clear from the Ninth Circuit’s opinion that Rowley is the benchmark by which the 

District’s performance and the Plaintiffs’ demands must be measured. The Supreme Court in 

that case addressed the issue of how much weight to accord the administrative proceedings, and 

the rationale for some level of deference: 

Thus the provision [in the IDEA] that a reviewing court base its decision on the 

“preponderance of the evidence” is by no means an invitation to the courts to 

substitute their own notions of sound educational policy for those of the school 

authorities which they review. The very importance which Congress has attached 

to compliance with certain procedures in the preparation of an IEP would be 

frustrated if a court were permitted simply to set state decisions at nought. The 

fact that § 1415(e) requires that the reviewing court “receive the records of the 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 5 

[state] administrative proceedings” carries with it the implied requirement that 

due weight be given to these proceedings. 

458 U.S. at 206 (emphasis supplied). 

 This theme of “deference” is echoed strongly in the Ninth Circuit opinion. In one 

footnote, the appellate panel observed that: 

The parties’ arguments throughout this litigation have routinely bordered on the 

quintessential “battle of the experts” concerning what educational policy and 

teaching method is most effective for learning-disabled students. The District is 

entitled to deference in deciding what programming is appropriate as a matter of 

educational policy. 

592 F.3d at 945 n. 5 (emphasis supplied). 

 And, while “extreme” deference is not appropriate, neither is de novo review. Depending 

on the state of the record, the ALJ may well be entitled to some level of deference. As the 

appellate court pointed out: 

In IDEA cases, unlike other cases reviewing administrative action, we do not 

employ a highly deferential standard of review. Nevertheless, complete de novo

review “is inappropriate.” We give “due weight” to the state administrative 

proceedings.” [J.G. v.] Douglas County, 552 F.3d [786] at 793 (citations omitted). 

“We give particular deference to ‘thorough and careful’ administrative findings.” 

Id. 

592 F.3d at 949 (emphasis supplied). 

 This Court was aware of this standard at the time of the original ruling. In the Order on 

Petition for Judicial Review, it was stated: 

The deference accorded to the ALJ’s decision is based on whether the Court 

deems that the hearing officer’s findings are “thorough and careful.” (citation 

omitted). . . 

The Court would characterize the ALJ’s findings in this matter as “thorough, but 

not careful.” 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 6 

 Dkt. No. 26, pp. 5-6. And on that basis, very little (if any) deference was given to the ALJ’s 

findings the first time around. Plaintiffs quote this portion of the original ruling in their opening 

brief on remand, arguing that nothing has occurred which should alter that perspective. Opening 

Brief on Remand, p. 18. The Court is not persuaded. The ALJ’s findings have already been 

deemed “thorough.” The label of “not careful” was applied based on the perception that the 

ALJ, while thorough in marshaling and examining the facts, had gotten the law wrong and 

applied an improper standard to the facts. It is clear in light of the appellate court’s ruling that, 

in truth, the ALJ was applying the correct legal standard. On that basis, this Court is now 

disposed to describe the ALJ’s findings as both “thorough and careful,” and therefore hold that 

those findings are entitled to the “particular deference” to which the Ninth Circuit points. 

 Plaintiffs argue that, even under the Rowley standard, the ALJ’s determination that MISD 

afforded K.L. a FAPE is erroneous. They present four grounds on which they argue that the 

ALJ’s decision should be overturned. 

 First, Plaintiffs contend that the District’s approach favoring accommodation (e.g., notetakers and readers for K.L., extended time for tests, oral exams instead of written) over 

remediation of K.L.’s learning disabilities violates the IDEA. 

 Neither Rowley nor the cases which follow support this reading of the requirements of 

the IDEA. At the outset, the Court observes that the parties disagreed over the nature of K.L.’s 

disabilities, so it is hardly surprising that they differed over how best to address her 

circumstances. As the Ninth Circuit observed, the parties have engaged in an extensive “battle 

of the experts” throughout this litigation, all centered around the exact nature and extent of 

K.L.’s disabilities and the best way to address them. As the ALJ and the Ninth Circuit found, the 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 7 

District is entitled to deference concerning their decision about the appropriate means of 

providing K.L. with the educational benefit to which she was entitled. 592 F.3d at 945 n. 5. 

Further, to the extent that “remediation” implies that the District was obligated to bring 

K.L. up to a reading level commensurate with her peers (or even with K.L.’s own maximum 

potential), the Rowley court’s holding that the IDEA’s provision of specialized educational 

services “generates no additional requirement that the service so provided be sufficient to 

maximize each child’s potential ‘commensurate with the opportunity provided other children’” 

(458 U.S. at 198) would seem to imply the opposite. The Supreme Court went to say that “to 

require. . . the furnishing of every special service necessary to maximize each handicapped 

child’s potential is, we think, further than Congress intended to go.” Id. at 199. Plaintiffs’ 

argument that educational statutory standards cannot be satisfied short of “remediation” is not 

the state of the law. 

 Plaintiffs also support their “remediation” argument through an interpretation of the 

language of Rowley and the Ninth Circuit opinion in this matter that mandates a “meaningful” 

educational benefit from a school district’s efforts and equates “meaningful” with “remediated.” 

The issue of the level of benefit required to be conferred by an IDEA program is a controversial 

one. Although Rowley does speak of “the educational standard... necessary to make such access 

[to public education] meaningful,” (Id. at 192, emphasis added), it neither defines that term nor 

makes it the sole measure of the adequacy of the educational benefit. There is also language in 

Rowley that states that it is “sufficient to confer some educational benefit” represented by a 

“basic floor of opportunity” composed of access to specialized instruction and related services 

designed to provide the benefit. Id. at 200 (emphasis added). 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 8 

 The Ninth Circuit opinion recognizes that the nature of the IDEA “benefit” is in need of 

some clarification: 

Some confusion exists in this circuit regarding whether the Individuals with 

Disabilities Education Act requires school districts to provide disabled students 

with “educational benefit,” “some educational benefit” or a “meaningful” 

education benefit. (citation omitted). As we read the Supreme Court’s decision in 

Rowley, all three phrases refer to the same standard. School districts must, to 

“make such access meaningful,” confer at least “some educational benefit” on 

disabled students. 

592 F.3d 938, 951 n. 10. 

Plaintiffs’ interpretation of the mandated educational benefit can be summed up as 

“‘some benefit’ can only mean ‘meaningful benefit’” (which, in K.L.’s case, means 

“remediation”). This Court reads the appellate opinion differently. The guidance provided by 

the Ninth Circuit in this regard states that “any program which provides ‘some benefit’ has by 

definition provided ‘meaningful benefit’” and thereby satisfied Rowley and the IDEA. 

This is a significant distinction. Plaintiffs come armed with two years of results from the 

remediation approach employed by the Landmark School, and it is doubtful that even the District 

would argue that those results are not impressive and meaningful. But it is the finding of this 

Court that District’s approach of accommodating K.L.’s disabilities (which, as MISD argues and 

as the ALJ found, produced progress in many areas of K.L.’s education) can be found to have 

been of “some benefit” to the student even if that benefit is not as great as that which remediation 

might produce. A finding of “some benefit” qualifies the District’s accommodation approach as 

“sufficient” for IDEA purposes (as the ALJ ruled) and thus a proper component of a FAPE. 

“Accommodation” as an education technique afforded K.L. some educational benefit and 

this Court confirms the ALJ’s finding that it was consistent with the requirements of the IDEA 

and Rowley. 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 9 

 Second, Plaintiffs argue that the failure of MISD’s program to educate K.L. up to the 

level of all of her IEP goals constituted a violation of the IDEA. Plaintiffs point to K.L.’s failure, 

in grades 8 and 9, to meet any of her IEP writing objectives and only a portion (3 out of 7) of her 

reading objectives as proof that the District’s efforts fell short of the requirements of the IDEA. 

They cite the language of the 1997 revision of the IDEA requiring inclusion in the IEP of 

services sufficient to promote the attainment of the student’s goals (20 U.S.C. § 1414(d)(1)(A)) 

and the state law provisions entitling handicapped students to “placement option(s) that provide[] 

a reasonably high probability of assisting the student to attain his or her annual goals.” WAC 

392-172-156. 

 To suggest that “failure to attain IEP objectives equals an IDEA violation” is to set the 

bar on special education far too high. The Rowley court acknowledged from the outset that 

“Congress expressly ‘recognize[d] that in many instances the process of providing special 

education and related services to handicapped children is not guaranteed to produce any 

particular outcome.’” [citation omitted]. 458 U.S. at 192. What is required is an ongoing, 

adaptive effort to set beneficial objectives that will challenge and improve the student, combined 

with periodic review and revision to ensure those goals are being met or, if met, are being 

modified to take the student to the next level. 

It was the finding of the ALJ that the IEP’s developed by the District met those criteria. 

K.L.’s failure in some instances to attain the objectives set in the IEP’s is not the test set by 

Rowley for determining the success of Defendant’s efforts. Her progress, as reflected in her 

grades and the comments of her teachers and other experts, was found by the ALJ to be adequate 

to satisfy the requirement that the IEP’s and the District’s efforts provide her “some educational 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 10 

benefit.” None of the evidence cited by Plaintiffs is sufficient to overcome the “particular 

deference” to which that finding is entitled. 

 Third, Plaintiffs assert that the MISD program produced no “meaningful educational 

benefit” for K.L., and thereby violated the IDEA. This interpretation of the requirements of the 

IDEA has been analyzed above in the context of Plaintiffs’ “accommodation v. remediation” 

argument, but perhaps it bears repeating that the Ninth Circuit, in remanding this case, stated 

unequivocally that any program which provides “some educational benefit” has provided a 

“meaningful” benefit by IDEA standards. 592 F.3d 938, 951 n. 10. The ALJ found that K.L. 

had progressed on a yearly basis through the attainment (or in some cases, near-attainment) of 

her IEP goals – that finding is entitled to some deference, while at the same time noting that 

Plaintiffs’ argument about why it should be overturned rests on an educational theory which the 

ALJ also chose not to adopt: namely, that K.L. had a language disorder which could only be 

remediated by the programs offered at Landmark School. 

 It was the finding of Plaintiffs’ expert Dr. Hill that K.L. suffered from a language 

disorder; that finding was accompanied by an assessment of a mood disorder by the therapist 

who saw K.L. at Parents’ request. The experts from Children’s Hospital retained by MISD made 

contrary findings and also disagreed with K.L.’s parents and Dr. Hill about the most effective 

way to help K.L. improve in the areas where she showed the greatest deficiency (reading and 

writing). The ALJ, after hearing all the testimony and reviewing all the evidence, agreed with 

the District and its experts. Plaintiffs have continued to produce evidence and expert 

interpretations of that evidence to demonstrate why that decision was erroneous and should be 

reversed. This Court is mindful of the Ninth Circuit’s admonition regarding “the quintessential 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 11 

‘battle of the experts’” and its finding that “[t]he District is entitled to deference in deciding what 

programming is appropriate as a matter of educational policy.” 592 F.3d at 945 n. 5. 

 Plaintiffs’ argument that the only meaningful benefit which is cognizable under IDEA is 

one which remediates the language disorder diagnosed by their experts does not stand up against 

the deference to which the District’s programming and the ALJ’s findings are entitled and the 

fact that there is evidence to support the ALJ’s finding that K.L. progressed appropriately under 

the District’s program. Rowley is clear that district courts are not to substitute their judgment on 

preferred educational policy for those of the school districts or the state administrative officers. 

Plaintiffs’ “meaningful benefit” argument is not ultimately persuasive in the face of the Supreme 

Court and Ninth Circuit authority to the contrary, and this Court is not convinced that District’s 

efforts violated the IDEA. 

 Finally, Plaintiffs argue that the IEP’s, by virtue of failing to produce “substantive 

progress” by K.L., were substantively flawed and therefore insufficient by IDEA standards. 

 What is unmistakable about this facet of Plaintiffs’ legal theory is that it is premised on 

the assertion that, in failing to adopt the findings of Plaintiffs’ experts regarding the nature of 

K.L.’s disabilities and accede to Parents’ desires regarding how their daughter should be 

educated, the District failed to accord the student the educational benefit mandated by the IDEA. 

Plaintiffs cannot prevail on this basis – the Court finds that there was evidence to support 

both the District’s approach to educating K.L. and the ALJ’s finding that the District’s approach 

afforded the student a FAPE under the standards set by the IDEA and Rowley. These findings 

are entitled to a “particular deference” and Plaintiffs have not overcome the weight of that 

deference with either their evidentiary support or case authority. 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 12 

 The District’s conclusion that K.L. did not have a language disorder of the nature 

advocated by her Parents is entitled to deference, as is the ALJ’s decision to uphold it by giving 

more credibility to MISD’s experts (a finding based in part on the weight which the ALJ chose to 

accord to the competing experts and in part on the ALJ’s own observations of K.L.’s live 

testimony which was described as “coherent, grammatical, clear, and well organized;” AR 353). 

Furthermore, as Defendant points out, the ALJ cited ample evidence in support of the finding 

that K.L.’s reading capabilities, at the time she left the District, were within the average range in 

every area except reading fluency1. 

 The evidence and the law not only fail to support Plaintiffs’ contention that the District 

adopted a flawed approach to developing the IEP’s and in educating K.L., but further fail to 

support the contention that the student achieved insufficient progress under the District’s care to 

satisfy the legal requirements. In contrast to Parents’ assertion that their daughter could barely 

read when she left the District, the ALJ found that K.L. was capable of reading general 

educational materials, simply at a slower pace than her nondisabled peers. AR 325. The finding 

was supported by evidence. AR 876, 1640, 1269-71, 3261-62. 3299, 3304, 3363-64, 3373-74. 

The testing done on K.L. prior to her enrolling in Landmark showed her to be in the average 

range in four out of five reading components – phonemic awareness, decoding, vocabulary and 

comprehension (fluency is the fifth). AR 1221-22, 3075, 3209-11, 3243, 3495-96. Parents 

present an impressive amount of evidence regarding K.L.’s learning deficiencies which they 

claim were not addressed by the District’s program; that evidence does not have to be discounted 

 

1 Defendant points out that fluency was not even a criterion for determining the existence of a specific 

learning disability under the IDEA until 2006; i.e., after the events at issue in K.L.’s case. Compare former 34 

C.F.R. § 300.541 (fluency not mentioned as a criterion), available at 64 Fed. Reg. 12457, with current 34 C.F.R. § 

300.309 (fluency included). 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 13 

or invalidated to find that K.L. made progress under the IEP’s nevertheless, received “some 

educational benefit” under the District’s program, and to further find that neither Rowley nor the 

IDEA require more than this. 

 The Court also rejects Plaintiffs’ argument that K.L.’s grades cannot be used as 

measurement of her progress during the years in question, as well as their contention that 

removing her from the society of her non-disabled peers was the only legally-mandated option 

for her education. Again, the District’s methodology finds support in Rowley: 

The [IDEA] requires participating States to educate handicapped children with 

nonhandicapped children whenever possible. . . Regular examinations are 

administered, grades are awarded and yearly advancement to higher grade levels 

is permitted for those children who attain an adequate knowledge of the course 

material. The grading and advancement system thus constitutes an important 

factor in determining educational benefit. 

458 U.S. at 203. 

 

 The Court looks, as did the ALJ, to K.L.’s grades, regular examination, yearly 

advancement and “mainstreaming” as further proof of compliance with Rowley. There was an 

abundance of evidence to support the ALJ’s findings that K.L.’s grades and yearly advancement 

were genuine indications of satisfactory progress through the coursework assigned pursuant to 

her IEP’s, and the Court notes this as an important factor in finding the District’s IEP’s to be 

legally sufficient and in upholding the administrative determination that the District satisfied its 

legal responsibilities to this student. 

Conclusion

 This Court was directed by the Ninth Circuit to “review the ALJ’s determination that the 

District provided K.L. with education benefit as required by Rowley.” 502 F.3d at 941. The 

requirements of Rowley may be summarized as follows: 

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ORDER ON REMAND: PETITION FOR 

JUDICIAL REVIEW- 14 

Marsha J. Pechman 

United States District Judge

Insofar as a State is required to provide a handicapped child with a “free 

appropriate public education,” we hold it satisfies this requirement by providing 

personalized instruction with sufficient support services to permit the child to 

benefit educationally from that instruction. 

458 U.S. at 203. The evidence and the law support the finding that K.L. was provided with 

personalized instruction and support services sufficient to permit her to achieve “some 

educational benefit” from the District’s system. There can be no doubt that the student achieved 

remarkable progress at the private educational facility to which she was removed and that her 

potential may have been maximized by her parents’ decision to withdraw her from the District. 

But the law does not place the burden of attaining every student’s full potential on the local 

school districts, and the administrative finding that the education offered by Defendant MISD 

comported with the law is affirmed. 

The clerk is ordered to provide copies of this order to all counsel. 

Dated: October 6, 2010. 

 A 

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