FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. L.; M. L.; K. L., their minor 

daughter, No. 07-35716

Plaintiffs-Appellees, D.C. No.

v.  CV-06-00494-MJP

MERCER ISLAND SCHOOL DISTRICT, a AMENDED

municipal Washington corporation, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

December 10, 2008—Seattle, Washington

Filed August 6, 2009

Amended January 13, 2010

Before: Robert R. Beezer, Ronald M. Gould and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Beezer

951
COUNSEL

James J. Dionne, Lisa M. Worthington-Brown, Lynette M.

Baisch, Dionne & Rorick, Seattle, Washington, for the

defendant-appellant. 

J. L. v. MERCER ISLAND SCHOOL DISTRICT 953
Howard C. Powers, Seattle, Washington, for the plaintiffsappellees.

OPINION

BEEZER, Circuit Judge:

This appeal stems from Plaintiffs’ allegation that Defendant

Mercer Island School District (“District”) failed to provide

K.L. with a free appropriate public education as required by

the Individuals with Disabilities Education Act, 20 U.S.C.

§§ 1400-1491.1 The administrative law judge (“ALJ”) analyzed Plaintiffs’ claims using the free appropriate public education “educational benefit” standard interpreted by the

Supreme Court in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982),

and concluded that the District provided a free appropriate

public education. The district court concluded that Congress

superseded Rowley in the 1997 Individuals with Disabilities

Education Act amendment and held that K.L. was denied a

free appropriate public education. The District appeals. 

The district court exercised federal question jurisdiction

over the instant case under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We hold that Rowley

continues to set the free appropriate public education standard. We vacate the district court’s orders except to the extent

that we reverse the district court’s conclusion that the District

committed procedural violations of the Individuals with Disabilities Education Act that resulted in the denial of a free

appropriate public education. We remand to the district court

to review the ALJ’s determination that the District provided

K.L. with educational benefit as required by Rowley. 

1

In the interest of preserving the family’s privacy because K.L. was a

minor at all relevant times, we identify Plaintiffs as “K.L.,” “Parents,”

“Mother” and “Father.” 

954 J. L. v. MERCER ISLAND SCHOOL DISTRICT
I

K.L. is a student of average intelligence that the District

diagnosed with learning disabilities in first grade.2 For second

and third grades, the District educated K.L. in several general

education classes upon determining that she would benefit

from an education alongside her typically-developing peers

for social and academic purposes. To “level the playing field”

in K.L.’s mainstreamed general education classes, the District

provided K.L. with accommodations. The District also provided K.L. with specially designed instruction (i.e., “special

education”) in reading and writing in a “resource room” for

special students. For fourth and fifth grades, Parents paid for

K.L. to attend a private school serving children with reading

and writing difficulties. 

K.L. returned to the District for her sixth grade education

at Islander Middle School. The District reevaluated K.L. and

determined that she was still eligible for special education.

K.L.’s intelligence quotient (“IQ”) revealed that she was in

the average range at the low end. In accordance with K.L.’s

individualized educational program, the District educated

K.L. with specially designed instruction in reading, writing

and mathematics. The District provided K.L. with accommodations in her general education classes including peers to

help her read and take notes, use of spelling software, modified instructions, alternate exam methods, reduced assignments and extra time for assignments. K.L. ended her sixth

grade year with an “A-” in special education reading, an

“A-” in special education language arts, a “B+” in special

education mathematics, an “A” in special education structured

study, an “A-” in general education science, a “pass” in general education art and a “pass” in general education Spanish.

2This factual background reflects our “particular deference” to the

ALJ’s “thorough and careful” administrative findings. See JG v. Douglas

County Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008). 

J. L. v. MERCER ISLAND SCHOOL DISTRICT 955
In seventh grade, K.L. continued with largely the same

individualized educational program that she followed in sixth

grade after her individualized educational program team concluded that the program was effective. At the end of seventh

grade, K.L. received an “A-” in special education language

arts (i.e., reading and writing), an “A” in special education

mathematics, an “A-” in special education structured study, a

“B+” in general education biology and an “A” in general education art. 

In eighth grade, the District modified K.L.’s individualized

educational program and provided 750 minutes per week of

specially designed instruction in reading, writing, mathematics and study skills. K.L.’s accommodations basically stayed

the same. Halfway through eighth grade, in January 2003,

Mother contacted the District regarding K.L.’s frustrations

with her language arts class. K.L. considered her language

arts class “boring,” “stupid” and “too hard.” Specifically, K.L.

did not like being singled out to give an answer in front of her

classmates. In response, K.L.’s language arts teacher changed

her teaching style, thereby galvanizing K.L. to increase her

classroom participation and self-confidence. 

K.L. took a standardized test of basic skills and scored in

the second percentile of eighth graders. Although K.L. made

progress on all of her eighth grade individualized educational

program objectives, she failed to meet all writing objectives,

two reading objectives, one mathematics objective and one

study skills objective. At the end of eighth grade, K.L.

received a “B” in special education language arts, a “B+” in

special education mathematics, an “A” in special education

structured study, an “A” in general education science, an “A”

in general education social studies and a “pass” as a teacher’s

assistant. 

The District reevaluated K.L. after eighth grade in June

2003. K.L.’s IQ showed improvement in mathematics and

regression in numerical operations. One of K.L.’s teachers

956 J. L. v. MERCER ISLAND SCHOOL DISTRICT
observed that K.L. performed much better in class than her

standardized test results showed. This was due to a combination of K.L.’s sporadic lack of motivation and propensity to

get frustrated on tests and simply give up. K.L’s individualized educational program team met shortly thereafter to discuss the District’s reevaluation. A few days later, K.L.’s

individualized educational program team met and developed

a ninth grade individualized educational program with lofty

objectives. Based on K.L.’s great progress in eighth grade

mathematics, K.L. was placed in a ninth grade algebra class

with a difficulty level between special education mathematics

and general education algebra. 

During first semester of ninth grade at Mercer Island High

School, not only did K.L. earn good grades, such as an “A-”

in algebra, but she also participated in athletics and enjoyed

an active (and sometimes distractive) social life. Unfortunately, in March 2004, K.L. missed three weeks of school due

to an illness. One of K.L.’s teachers believed that K.L. “was

not the same student” after she returned and that she was less

motivated. K.L. turned in only half of her algebra homework

and her quiz and test grades decreased as a result. At K.L.’s

request, her individualized educational program team returned

her to special education mathematics and provided her with

another resource room period. Parents hired a private educational consultant and began researching private schools for

K.L. 

At the end of ninth grade, K.L. received a “B-” in special

education English foundations, an “A-” in special education

mathematics, a “C+” in general education history, a “B” in

general education chemistry and an “A” as a teacher’s assistant. K.L.’s grade point average was a 3.49, which was higher

than both the median and mean grade point average for ninth

graders in the District. By the end of ninth grade, K.L. met all

of her mathematics and study skills individualized educational

program objectives, however, she did not meet two of her

reading objectives and any of her writing objectives. NeverJ. L. v. MERCER ISLAND SCHOOL DISTRICT 957
theless, K.L.’s individualized educational program team

thought that K.L. “had a very successful year, her grades have

been high and though at times she is frustrated or afraid, she

has managed to tackle the projects with support.” Unbeknownst to anyone at the District, Mother completed much of

K.L.’s ninth grade homework, sometimes even in K.L.’s

absence. 

Shortly after ninth grade concluded, in June 2004, the District held an individualized educational program meeting and

presented a proposed tenth grade individualized educational

program to Parents. The proposed program provided 972 minutes per week of specially designed instruction in reading,

writing, mathematics, study skills and transitions. K.L.’s reading goal was to increase reading decoding and comprehension

skills on grade-level materials. K.L.’s written language goal

was to increase written expression skills in a more independent manner. The individualized educational program provided most of the same accommodations as K.L.’s ninth grade

individualized educational program with the addition of

access to books on tape. The individualized educational program’s transition statement indicated that K.L.’s programming “is aimed at attending a community or technical college.”

3

Parents told the District that they were displeased with K.L.’s

ninth grade education and were “looking at other options.”

This was the first time that Parents had ever expressed dissatisfaction with K.L.’s education. 

On the same day, Parents applied to Landmark School, a

private residential school in Massachusetts exclusively for

learning-disabled students.4 In her part of the application, K.L.

3Plaintiffs assert that they were actually interested in four-year colleges;

however, they admit that K.L. never communicated this aspiration to anyone at the District. 

4On the application form, Parents indicated that they were negotiating

with the District to fund Landmark School. In fact, Plaintiffs had not even

disclosed their interest in Landmark School to the District at that point in

time. 

958 J. L. v. MERCER ISLAND SCHOOL DISTRICT
indicated that she did not like attending Mercer Island High

School because “my resource room teacher does not let me

relax” and “I don’t like the pressure to be an A student.” K.L.

generally thought that her peers were “competitive academically” and that if a student did not receive a 4.0 grade point

average, “you were the odd one out” and “didn’t fit in.”

The day after the individualized educational program meeting, the District emailed Parents to set up another individualized educational program meeting to address Parents’

dissatisfaction with the proposed program. Parents received

the District’s email but chose not to respond. Sometime thereafter, Mother told K.L.’s case manager at the District that

K.L.’s primary problem was with the teaching style utilized

in English foundations. K.L.’s case manager asked Mother if

K.L. would be more comfortable in a class with either a oneto-one or one-to-two teacher to student ratio, although K.L.’s

case manager personally believed that this environment would

be too restrictive. Mother declined this more reading intensive

proposal.

Later in June 2004, Parents sent the District a letter requesting an independent educational evaluation at the District’s

expense to be performed by Dr. Deborah Hill. See 20 U.S.C.

§ 1415(b)(1)(A). Parents indicated that they disagreed with

the District’s June 2003 reevaluation primarily because of

inappropriate recommendations for instructional strategies

and special education services. The District first rejected Dr.

Hill because she was not on the District’s approved list of

evaluators; however, the District approved Dr. Hill shortly

thereafter. 

A few days later, the District sent a letter to Parents seeking

their consent for an independent educational evaluation to be

conducted by Children’s Hospital Regional Medical Center

(“Children’s Hospital”). See 20 U.S.C. § 1414(a)(2). Parents

did not return the consent form. 

J. L. v. MERCER ISLAND SCHOOL DISTRICT 959
Dr. Hill evaluated K.L. in early July 2004. Dr. Hill found

that K.L. was generally average and had an IQ of 101. K.L.

scored in the borderline or extremely low range in written

comprehension and written language. Dr. Hill concluded that

K.L.’s special education at the District had been inadequate

because K.L. needed an intensive approach to remedy her disability. Ultimately, Dr. Hill determined, no public school in

Washington could provide K.L. with an appropriate education. Dr. Hill recommended Landmark School because of its

focus on improving phonological awareness skills. 

In early August 2004, Parents informed the District that

they were unilaterally enrolling K.L. in Landmark School for

tenth grade. They requested tuition reimbursement from the

District. 

A few days later, the District sent Parents another consent

form for Children’s Hospital to evaluate K.L. Parents did not

respond to the District before K.L. left to attend Landmark

School in Massachusetts. 

In late August, Parents denied consent to the independent

educational evaluation proposed by the District. Parents indicated that they would only allow the District to review

records, teacher reports and guidance team reviews. Parents

refused to allow any communication between the doctors that

would be examining K.L. and the District. Parents asserted

that they could not provide knowledgeable consent until they

received a written description of the evaluation procedures to

be conducted, the purpose of any testing and each evaluation

test, procedure, record or report used to formulate the District’s proposal to evaluate. Parents stated that they wanted to

make sure each evaluation was necessary and avoid duplicative tests. Parents put the District on notice that they had an

attorney. 

In early September 2004, the District sent Parents a third

consent form. The District also scheduled an individualized

960 J. L. v. MERCER ISLAND SCHOOL DISTRICT
educational program meeting for mid-September, which was

the earliest time the meeting could be scheduled due to the

large number of participants. District staff held a “premeeting meeting” to develop an individualized educational

program proposal and discuss the recommendations of Parents and Dr. Hill. At the actual individualized educational

program meeting, the District presented a proposal with several changes that followed Dr. Hill’s recommendations,

including more intensive reading instruction. No representative from Landmark School attended this meeting. The individualized educational program provided for 1215 minutes

per week of specially designed instruction in reading, writing,

mathematics and study skills. The program included transition

objectives such as exploring career options, meeting successful dyslexic adults, developing self-advocacy and increasing

problem-solving skills. The individualized educational program provided the same accommodations as K.L.’s ninth

grade program with the addition of spelling not counting

against K.L.’s grades and the use of additional computer technology for spelling. The individualized educational program

team rejected a Landmark School placement as inappropriate

for K.L. for various reasons, most notably because the Landmark School curriculum did not target K.L.’s deficient areas

and completely segregated her from her typically-developing

peers. At the conclusion of the meeting, Parents informed the

District that K.L. would not return to Mercer Island High

School. 

The District sent Parents a fourth independent educational

evaluation consent form at the end of September. In early

October, Parents finally consented. The independent educational evaluation took place in November when K.L. was

home visiting her family on vacation. The independent educational evaluation reports from Children’s Hospital overwhelmingly agreed with the District’s proposed

individualized educational program. The doctors agreed with

the District that sixth to eighth grade was the appropriate

instructional level for K.L and that K.L. demonstrated ageJ. L. v. MERCER ISLAND SCHOOL DISTRICT 961
appropriate phonological awareness skills. The doctors found

that K.L. had made an average of at least one year’s progress

per year at the District. The doctors concluded that K.L.

should be educated with her typically-developing peers as

much as possible. One doctor even opined that there was no

evidence demonstrating the effectiveness of Landmark

School’s teaching methodology. 

After receiving the independent educational evaluation

reports, the District conducted its own reevaluation and

drafted a reevaluation report dated March 2005. The reevaluation report concluded that K.L. exhibited age-appropriate phonological awareness skills, scored in the low range of

expressive language skills and spelled poorly. The report recommended keeping most of K.L.’s ninth grade individualized

educational program, which meant keeping her in several general education classes because the District continued to

believe that mainstreaming was appropriate for K.L. 

The individualized educational program team convened

later in March to discuss the District’s proposed program for

eleventh grade. No representatives from Landmark School

attended but the team reviewed K.L.’s Landmark School

progress reports. The proposed program incorporated many

recommendations suggested by Dr. Hill and all made by Children’s Hospital. The individualized educational program provided previous accommodations as well as access to teacher

notes, not being called on without warning, extra time to

respond to questions, no penalty for spelling errors and homework limited to three hours per night. The District expressly

rejected Parents’ request to include the Landmark School curriculum in the program. The District also declined to name a

particular teaching methodology to be utilized by all teachers

because its experts recommended several effective programs,

not just a single “right” choice.5

5The parties’ arguments throughout this litigation have routinely bordered on the quintessential “battle of the experts” concerning what educa962 J. L. v. MERCER ISLAND SCHOOL DISTRICT
On June 6, 2005, Plaintiffs filed a due process hearing

request pursuant to 20 U.S.C. § 1415(f), seeking reimbursement for K.L.’s Landmark School tuition and expenses. The

District attempted once more, in August 2005, to appease Parents. The District sent Parents a letter offering a program

engineered by an expert in reading who works at Children’s

Hospital. Parents declined the District’s offer.

K.L. completed tenth, eleventh and twelfth grades at Landmark School.6

 K.L.’s total expenses were $46,479.90 for tenth

grade, $50,681.24 for eleventh grade and $54,838.54 for

twelfth grade. 

II

The ALJ conducted the due process hearing over the course

of eleven days in September and October 2005. The ALJ concluded that the District provided a free appropriate public

education to K.L. as required by Rowley and denied tuition

reimbursement. See 20 U.S.C. § 1412(a)(10)(C)(i) (stating

that a school district is not responsible for private school

reimbursement if it offered a free appropriate public education). Plaintiffs sought review from the United States District

Court for the Western District of Washington. See 20 U.S.C.

§ 1415(i)(2)(A).

The district court reversed and remanded. After examining

congressional findings added in the 1997 Individuals with

Disabilities Education Act amendment and the definition of

“transition services,” the district court concluded that Congress sought to supersede the “educational benefit” standard

set forth in Rowley. The district court’s analysis yielded the

tional 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. See Rowley, 458

U.S. at 206. 

6Plaintiffs moved out of the District prior to K.L.’s twelfth grade year.

J. L. v. MERCER ISLAND SCHOOL DISTRICT 963
following new free appropriate public education standard

focused on transition services: 

[W]hether the District’s approach to [the student’s]

educational challenges met the IDEA standard of

“equality of opportunity, full participation, independent living, and economic self-sufficiency” for the

minor and whether the programs developed for her

conferred a “meaningful educational benefit” in light

of the IDEA’s goals.

J.L. v. Mercer Island Sch. Dist., No. C06-494P, 2006 WL

3628033, at *6 (W.D. Wash. Dec. 8, 2006). The district court

instructed the ALJ that under the new standard, K.L. did not

receive a free appropriate public education in eighth, ninth

and tenth grades. See id. at *4 (“Parents are correct that the

failure of the IEPs to focus on progressing K.L. toward selfsufficiency (i.e., independent living) and her desired goal of

post-secondary education represents a failure to confer the

benefit contemplated by the IDEA.”). The ALJ’s only tasks

on remand were to determine whether Landmark School was

an appropriate placement and to fashion relief. 

On remand, the ALJ concluded that K.L.’s placement at

Landmark School was appropriate. The ALJ awarded reimbursement for tuition and related expenses for tenth and eleventh grades based on the district court’s holding that K.L. did

not receive a free appropriate public education in those

grades. However, the ALJ equitably reduced tenth grade reimbursement by the cost of seven months of enrollment at Landmark School after finding that Parents unreasonably delayed

the District’s reevaluation of K.L. prior to her tenth grade

year. See JG v. Douglas County Sch. Dist., 552 F.3d 786, 795

(9th Cir. 2008) (discussing equitable reductions). The ALJ

awarded reimbursement for twelfth grade as “compensatory

education” based on the district court’s holding that K.L. did

not receive a free appropriate public education in eighth and

ninth grades. See Parents of Student W v. Puyallup Sch. Dist.,

964 J. L. v. MERCER ISLAND SCHOOL DISTRICT
No. 3, 31 F.3d 1489, 1496 (9th Cir. 1994) (discussing compensatory education). Both parties sought district court review

of the ALJ’s second decision. 

The district court mostly upheld the ALJ’s decision. The

district court did not impose the ALJ’s equitable reduction.

The district court ordered the District to pay for three years

of Landmark School and $160,687.50 in attorneys’ fees. This

appeal followed. 

III

[1] “The IDEA provides federal funds to assist state and

local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and

procedures.” N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d

1202, 1207 (9th Cir. 2008) (quoting Ojai Unified Sch. Dist.

v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993)). The Individuals with Disabilities Education Act’s primary goal is “to

ensure that all children with disabilities have available to

them a free appropriate public education that emphasizes special education and related services . . . .” See 20 U.S.C.

§ 1400(d)(1)(A). “[A] state must comply both procedurally

and substantively with the IDEA.” Hellgate, 541 F.3d at 1207

(quoting M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 644 (9th

Cir. 2005)). “State standards that are not inconsistent with

federal standards [under the IDEA] are also enforceable in

federal court.” Id. at 1208 (quoting W.G. v. Bd. of Trs. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (9th Cir.

1992)).

States satisfy the Individuals with Disabilities Education

Act’s substantive requirements by providing a disabled child

with a free appropriate public education. In 1975, Congress

enacted the Education for All Handicapped Children Act,

which contained the following definition of a “free appropriate public education”:

J. L. v. MERCER ISLAND SCHOOL DISTRICT 965
The term “free appropriate public education” means

special education and related services which (A)

have been provided at public expense, under public

supervision and direction, and without charge, (B)

meet the standards of the State educational agency,

(C) include an appropriate preschool, elementary, or

secondary school education in the State involved,

and (D) are provided in conformity with the individualized education program required under section

614(a)(5).

Pub. L. No. 94-142, § 4, 89 Stat. 773, 775 (1975) (codified as

amended at 20 U.S.C. § 1401(8)(D)).

[2] In 1982, the Supreme Court rendered its seminal decision construing the Act and the scope of a free appropriate

public education in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982).

The Court noted that “Congress was rather sketchy in establishing substantive requirements.” Id. at 206. The Court concluded that states must provide a “basic floor of opportunity”

to disabled students, not a “potential-maximizing education.”

Id. at 197 n.21, 200. “Congress did not impose upon the

States any greater substantive educational standard than

would be necessary to make such access meaningful.” Id. at

192. Phrased another way, states must “confer some educational benefit upon the handicapped child.” Id. at 200. 

To assist courts in this labyrinth of experts, educational policy and charged emotions, the Court established a two-part

test to determine whether a state has provided a free appropriate public education. Id. at 206-07. “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. (footnotes omitted). “If

these requirements are met, the State has complied with the

966 J. L. v. MERCER ISLAND SCHOOL DISTRICT
obligations imposed by Congress and the courts can require

no more.” Id. at 207.

[3] Congress amended the Act in 1983. See Pub. L. No. 98-

199, 97 Stat. 1357 (1983). Congress did not alter the definition of a free appropriate public education, see id. § 2, 97 Stat.

at 1357, or indicate its disapproval with Rowley, see generally

Pub. L. No. 98-199, 97 Stat. 1357. Congress introduced the

concept of “transition services” by authorizing federal funding for states “to assist in the transitional process to postsecondary education, vocational training, competitive

employment, continuing education, or adult services.” Id.

§ 10, 97 Stat. at 1367. Congress did not require states to supply transition services. See id.

Congress amended the Act again in 1986. See Pub. L. No.

99-457, 100 Stat. 1145 (1986). Congress did not change the

definition of a free appropriate public education, see id. § 672,

100 Stat. at 1146-47, or indicate disapproval with Rowley, see

generally Pub. L. No. 99-457, 100 Stat. 1145. Congress

slightly changed the law regarding transition services to “include[ ] supported employment” as an acceptable form of

“competitive employment.” Id. § 306, 100 Stat. at 1163. 

Congress’ next amendment came in 1990 when the Act’s

name was changed to the “Individuals with Disabilities Education Act.” See Pub. L. No. 101-476, § 901(a)(1), 104 Stat.

1103, 1141-42 (1990). Congress again did not change the definition of a free appropriate public education, see id. § 101,

104 Stat. at 1103-05, or indicate disapproval with the Rowley

free appropriate public education standard, see generally Pub.

L. No. 101-476, 104 Stat. 1103. Congress made two substantial changes regarding transition services. First, Congress

newly required individualized educational programs to contain “a statement of the needed transition services for students

beginning no later than age 16 and annually thereafter (and,

when determined appropriate for the individual, beginning at

age 14 or younger) . . . .” Id. § 101(e)(1), 104 Stat. at 1104.

J. L. v. MERCER ISLAND SCHOOL DISTRICT 967
Second, Congress amended the definition of “transition services” to the following: 

The term “transition services” means a coordinated

set of activities for a student, designed within an

outcome-oriented process, which promotes movement from school to post-school activities, including

postsecondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult

services, independent living, or community participation. The coordinated set of activities shall be

based upon the individual student’s needs, taking

into account the student’s preferences and interests,

and shall include instruction, community experiences, the development of employment and other

post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.

Id. § 101(d), 104 Stat. at 1103-04. 

Congress amended the Individuals with Disabilities Education Act in 1997, the effect of which is disputed in the present

litigation.7See Pub. L. No. 105-17, 111 Stat. 37 (1997). Even

though Congress added numerous new findings, see id. § 101,

111 Stat. at 38-42, Congress did not indicate disapproval with

Rowley, see generally Pub. L. No. 105-17, 111 Stat. 37. Congress enacted the same definition of a free appropriate public

education for all intents and purposes.8See id. § 602, 111 Stat.

7Congress amended the Individuals with Disabilities Education Act

again in 2004. See Pub. L. No. 108-446, 118 Stat. 2647 (2004) (codified

at 20 U.S.C. §§ 1400-1491). Plaintiffs’ claims are governed by the 1997

Individuals with Disabilities Education Act because they filed their due

process hearing request before the 2004 Act’s effective date of July 1,

2005. 

8Congress merely changed “which” to “that,” replaced commas with

semi-colons and updated the internal section reference. See id. § 602, 111

Stat. at 44. 

968 J. L. v. MERCER ISLAND SCHOOL DISTRICT
at 44. Congress newly required, “beginning at age 14, and

updated annually, a statement of the transition service needs

of the child . . . that focuses on the child’s courses of study

(such as participation in advanced-placement courses or a

vocational education program).” Id. § 614(d)(1)(A)(vii)(I),

111 Stat. at 84.

IV

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

error, even when the district court based those findings on an

administrative record.” Douglas County, 552 F.3d at 793. “A

finding of fact is clearly erroneous when the evidence in the

record supports the finding but the reviewing court is left with

a definite and firm conviction that a mistake has been committed.” Hellgate, 541 F.3d at 1207 (internal quotation marks

omitted). “Questions of law and mixed questions of fact and

law are reviewed de novo, unless the mixed question is primarily factual.” Id. 

“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.” Douglas County, 552 F.3d at 793 (citations omitted).

“We give particular deference to ‘thorough and careful’

administrative findings.” Id.

V

The District argues that the district court erred in concluding that Congress sought to supersede Rowley or otherwise

change the free appropriate public education standard. To

support its newly-extrapolated free appropriate public education standard requiring transition services targeted at “equality

of opportunity, full participation, independent living, and economic self-sufficiency,” the district court relied on three new

J. L. v. MERCER ISLAND SCHOOL DISTRICT 969
congressional findings and the definition of “transition services.” 

We first examine the district court’s reliance on Congress’

definition of “transition services,” originally added in the

1990 Individuals with Disabilities Education Act amendment.

The district court stated:

The IDEA is not simply about “access;” it is

focused on “transition services, . . . an outcomeoriented process, which promotes movement from

school to post-school activities . . . taking into

account the student’s preferences and interests.” This

is such a significant departure from the previous legislative scheme that any citation to pre-1997 case

law on special education is suspect.

Mercer Island, 2006 WL 3628033, at *4 (citations omitted).

The District argues that the district court failed to appreciate

that the Education for All Handicapped Children Act was

amended in 1990. The District suggests that this explains the

district court’s omission of any discussion of the nexus

between the 1990 amendment, 1997 amendment and the district court’s newfound standard. 

Although the district court’s order is ambiguous, the District is likely correct based on two of the district court’s

remarks. First, the district court stated that “[i]t is important

to note that the law regarding ‘disability education’ underwent

a change about ten years ago. Prior to that time, the statutory

scheme was the Education for [sic] Handicapped Children Act

of 1975 (EHA) . . . .” Mercer Island, 2006 WL 3628033, at

*4 (emphasis added). Of course, the Education for All Handicapped Children Act ceased to exist in 1990 when it was

replaced by the Individuals with Disabilities Education Act,

which was not “about ten years ago.” See Pub. L. No. 101-

476, § 101(d), 104 Stat. 1103, 1103-04 (1990). The district

court simply appears to have been unaware of the 1990

970 J. L. v. MERCER ISLAND SCHOOL DISTRICT
amendment. This explains the district court’s reliance on what

it thought was a new definition of “transition services” in

1997, i.e., “about ten years” before the district court’s 2006

order. The second remark demonstrating that the district court

was not cognizant of the 1990 amendment was its footnote

indicating “[a] 1995 (pre-IDEA) case.” Mercer Island, 2006

WL 3628033, at *5. This footnote clearly shows that the district court did not realize that the Individuals with Disabilities

Education Act existed before 1997.

However, because of the equivocal nature of the district

court’s order, it is also possible that the district court thought

the Individuals with Disabilities Education Act “evolved”

over time to eventually supercede Rowley in 1997. Neither

Plaintiffs nor the district court have pointed to authority supporting the proposition that we should consider the legislative

“evolution” of a statute when determining Congress’ intent.

Plain meaning interpretation is a “cardinal canon” of statutory

construction, and evolutionary arguments are by no means

plain. See Conn. Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992); Rubin v. United States, 449 U.S. 424, 430

(1981) (“When we find the terms of a statute unambiguous,

judicial inquiry is complete, except in rare and exceptional

circumstances.” (internal quotation marks omitted)). Additionally, for legislation enacted pursuant to the Spending

Clause, U.S. Const. art. I, § 8, cl. 1, such as the Individuals

with Disabilities Education Act, it would seem that “evolutionary” theories by their very nature are foreclosed by the

Supreme Court. See Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006) (requiring Congress to set

out federal funding conditions “unambiguously” so that states

can accept the funding “voluntarily and knowingly”).

[4] Regardless of the district court’s reasoning, we agree

with the Court of Appeals for the First Circuit that there is no

plausible way to read the definition of “transition services” as

changing the free appropriate public education standard:

J. L. v. MERCER ISLAND SCHOOL DISTRICT 971
We do not interpret this statutory language, which

simply articulates the importance of teacher training,

as overruling Rowley. This court has continued to

apply the Rowley standard in cases following the

1997 amendments, as have several [other] circuits.

And that is for good reason. The Rowley standard

recognizes that courts are ill-equipped to secondguess reasonable choices that school districts have

made among appropriate instructional methods.

Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80, 83

(1st Cir. 2004).

In addition to the “transition services” definition, the district court also relied on three new congressional findings to

support its conclusion that the 1997 amendment dramatically

changed the free appropriate public education standard. First,

Congress found that “[s]ince the enactment and implementation of the Education for All Handicapped Children Act of

1975, this Act has been successful in ensuring children with

disabilities and the families of such children access to a free

appropriate public education and in improving educational

results for children with disabilities.” Pub. L. No. 105-17,

§ 101(c)(3), 111 Stat. 37, 39 (1997). Second, Congress found

that “the implementation of this Act has been impeded by low

expectations, and an insufficient focus on applying replicable

research on proven methods of teaching and learning for children with disabilities.” Id. § 101(c)(4), 111 Stat. at 39. Third,

Congress found that “[i]mproving educational results for children with disabilities is an essential element of our national

policy of ensuring equality of opportunity, full participation,

independent living, and economic self-sufficiency for individuals with disabilities.” Id. § 101(c)(1), 111 Stat. at 38.

[5] We conclude that the district court misinterpreted Congress’ intent. Had Congress sought to change the free appropriate public education “educational benefit” standard—a

standard that courts have followed vis-à-vis Rowley since

972 J. L. v. MERCER ISLAND SCHOOL DISTRICT
1982—it would have expressed a clear intent to do so.

Instead, three omissions suggest that Congress intended to

keep Rowley intact. First, Congress did not change the definition of a free appropriate public education in any material

respect. If Congress desired to change the free appropriate

public education standard, the most logical way to do so

would have been to amend the free appropriate public education definition itself. Second, Congress did not indicate in its

definition of “transition services,” or elsewhere, that a disabled student could not receive a free appropriate public education absent the attainment of transition goals. Third,

Congress did not express disagreement with the “educational

benefit” standard or indicate that it sought to supersede Rowley. In fact, Congress did not even mention Rowley. 

[6] In re-enacting the free appropriate public education definition in 1997, as Congress had done in the Act’s three prior

amendments, Congress presumably was aware of Rowley and

its renowned “educational benefit” free appropriate public

education standard. See Forest Grove Sch. Dist. v. T.A., 129

S. Ct. 2484, 2492 (2009) (“Congress is presumed to be aware

of an administrative or judicial interpretation of a statute and

to adopt that interpretation when it re-enacts a statute without

change.” (internal quotation marks omitted)). These vague

legislative findings cited by the district court are insufficient

for us to conclude that Congress sought to supersede the ubiquitous free appropriate public education standard set forth in

Rowley. See Branch v. Smith, 538 U.S. 254, 273 (2003) (stating that “absent a clearly expressed congressional intention,

repeals by implication are not favored” (citations and internal

quotation marks omitted)). 

[7] We hold that the district court erred in declaring Rowley

superseded.9 The proper standard to determine whether a dis9We need not separately address the district court’s analysis concerning

whether the District appropriately mainstreamed K.L. and provided her

with accommodations. The district court’s analysis was clearly infected by

its interpretation of the 1997 Individuals with Disabilities Education Act

amendment. On remand, the district court may revisit these issues in light

of Rowley and its progeny. 

J. L. v. MERCER ISLAND SCHOOL DISTRICT 973
abled child has received a free appropriate public education is

the “educational benefit” standard set forth by the Supreme

Court in Rowley.

10 Our holding is necessary to avoid the conclusion that Congress abrogated sub silentio the Supreme

Court’s decision in Rowley. Cf. Forest Grove, 129 S. Ct. at

2493-94. On remand, the district court must review in the first

instance the ALJ’s determination that the District provided a

free appropriate public education as required by Rowley. 

VI

Although we remand to the district court the issue of substantive compliance with the Individuals with Disabilities

Education Act so that the court can consider the matter in the

first instance, we need not remand the procedural compliance

issues because the district court’s analysis did not turn on any

disputed legal standards. The district court held that the District failed to confer a free appropriate public education based

on procedural violations involving transition services, the District’s “pre-meeting meeting,” lack of a specified teaching

methodology and lack of specified minutes of instruction. We

discuss each contention in turn. 

[8] The District argues that Plaintiffs failed to exhaust their

claim that the District committed a procedural violation of the

Individuals with Disabilities Education Act in regards to transition services. “[W]hen a plaintiff has alleged injuries that

could be redressed to any degree by the IDEA’s administrative procedures and remedies, exhaustion of those remedies is

10Some 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” educational benefit. See, e.g., Hellgate, 541 F.3d at

1212-13. 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. See Rowley, 458 U.S. at 192, 200. For ease of discussion, we

refer to this standard as the “educational benefit” standard. 

974 J. L. v. MERCER ISLAND SCHOOL DISTRICT
required.” Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047,

1048 (9th Cir. 2002); see also 20 U.S.C. § 1415(i)(2)(A).

Plaintiffs did not raise a transition services argument in their

administrative complaint or due process hearing. For this reason, the ALJ did not address transition services. Nevertheless,

the district court held that K.L. was denied a free appropriate

public education based on the District’s failure to supply

appropriate transition services. We hold that the district court

lacked subject matter jurisdiction to consider this unexhausted

claim, and reverse the district court.

[9] The District next argues that the district court erred in

concluding that it predetermined K.L.’s individualized educational program at the “pre-meeting meeting” in September

2004. There is no evidence supporting the district court’s

finding that the District made program decisions at this preparatory meeting. See 34 C.F.R. 300.501(b)(3) (stating that an

individualized educational program meeting “does not include

preparatory activities that public agency personnel engage in

to develop a proposal or response to a parent proposal that

will be discussed at a later meeting”). Not only did Parents

actively participate in the individualized educational program

formulation process, the District changed various aspects of

the program based on the recommendations of Parents and Dr.

Hill. See Target Range, 960 F.2d at 1484. We hold that the

District did not commit a procedural violation of the Individuals with Disabilities Education Act in its “pre-meeting meeting,” and reverse the district court. 

[10] The District next argues that the district court erred in

concluding that the District committed a procedural violation

of the Individuals with Disabilities Education Act by not

specifying a teaching methodology in K.L.’s individualized

educational program. Although school districts should specify

a teaching methodology for some students, for other students

“IEPs may not need to address the instructional method to be

used because specificity about methodology is not necessary

to enable those students to receive an appropriate education.”

J. L. v. MERCER ISLAND SCHOOL DISTRICT 975
See 64 Fed. Reg. 12,552. We accord deference to the District’s determination and the ALJ’s finding that K.L.’s teachers needed flexibility in teaching methodologies because there

was not a single methodology that would always be effective.

We hold that the District did not commit a procedural violation of the Individuals with Disabilities Education Act by not

specifying teaching methodologies in K.L.’s individualized

educational programs, and reverse the district court. 

[11] In a similar vein, the District argues that the district

court erred in concluding that the District committed a procedural violation by not specifying the minutes of instruction to

be devoted to each of K.L.’s services in her individualized

educational programs. An individualized educational program

is a “formal, written offer [that] creates a clear record that will

do much to eliminate troublesome factual disputes.” Union

Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994). In an

individualized educational program, a school district must

specify “the anticipated frequency, location, and duration of

[special education] services.” 20 U.S.C. § 1414(d)(1)(A)(vi)

(1998). “The amount of time to be committed to each of the

various services to be provided must be (1) appropriate to the

specific service, and (2) stated in a manner that is clear to all

who are involved.” 64 Fed. Reg. 12,479. 

K.L.’s individualized educational program lists her supplementary aids, services and program modifications. These

modifications consist of many access-based accommodations,

such as access to books on tape, access to a peer note taker

and word processing software, extended time for tests and

assignments, alternative exam methods, preferential seating

and scheduling, and use of a calculator and literacy software.

Her 2005 individualized educational program states that she

would have access to these accommodations for 972 minutes

per week. While a lump-sum number like this may not be

appropriate in other individualized educational programs, we

find it to be sufficient in this case. Here, the allocation of a

specific number of minutes to any of the above accommoda976 J. L. v. MERCER ISLAND SCHOOL DISTRICT
tions would make no sense because they are all access-based

modifications. Presumably, K.L. had unlimited access to each

of the above accommodations. Because the individualized

educational program is written before the provision of any

services, it is not reasonable to expect the school district to

predict the amount of time the student will actually use the

accommodations to which she has been given access. Here,

K.L.’s individualized educational program still functions as a

“clear record that will do much to eliminate troublesome factual disputes” because it still lists K.L.’s accommodations and

suggests that they should be available to her on demand.

Smith, 15 F.3d at 1526. Under the circumstances of this case,

we conclude that the amount of time to be devoted to K.L’s

services was appropriate to the specific services provided.

Even if the District did commit a procedural violation by

failing to specify minutes, not every procedural violation

results in the denial of a free appropriate public education. A

procedural violation denies a free appropriate public education if it results in the loss of an educational opportunity, seriously infringes the parents’ opportunity to participate in the

IEP formulation process or causes a deprivation of educational benefits. Hellgate, 541 F.3d at 1208 (quoting Amanda

J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001)).

Here, Plaintiffs fail to show how K.L. was prejudiced by the

District’s failure to specify the amount of services she was to

receive. They do not allege that she was denied an educational

benefit or missed an educational opportunity. Nor do they

show that the parents’ ability to participate in the individualized educational program formulation process was harmed.

Indeed, the record suggests that even though the individualized educational program did not list the amount of services,

everyone involved in the individualized educational team—

including K.L.’s parents—knew of the amounts.

We hold that the District did not violate the Individuals

with Disabilities Education Act by failing to specifying minutes of instruction in K.L.’s individualized educational proJ. L. v. MERCER ISLAND SCHOOL DISTRICT 977
gram. We further hold that any procedural violation that may

have occurred did not deny K.L. a free appropriate public

education, and reverse the district court.

VII

For the reasons discussed, we conclude that the district

court erred in holding that the definition of a free appropriate

public education set forth by the Supreme Court in Rowley

has been superseded, and accordingly, vacate its orders.11 In

addition, we reverse the district court’s conclusions that the

District committed procedural violations of the Individuals

with Disabilities Education Act that resulted in the denial of

a free appropriate public education. 

Because it is not clear whether our rulings dispose of all of

K.L.’s claims, we remand this case to allow K.L. to pursue

any such claims she may have asserted that are not determined by our opinion. On remand, the district court must

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 and reiterated in this opinion. We deny the District’s request for a different judge on remand. 

REVERSED in part, VACATED in part and

REMANDED. 

11Because the district court’s awards of reimbursement, related

expenses and attorneys’ fees were premised on its determination that the

District failed to provide K.L. with a free appropriate public education,

vacation of that determination also vacates those awards. 

978 J. L. v. MERCER ISLAND SCHOOL DISTRICT