IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

GRANTS PASS SCHOOL DISTRICT, No. 1:14-cv-01115-PA 

Plaintiff-Appellant, OPINION & ORDER 

v. 

STUDENT, 

Defendant-Appellee. 

PANNER, J. 

Plaintiff-Appellant Grants Pass School District ("the 

District") seeks review of the Final Order by Administrative Law 

Judge A. Bernadette House ("the ALJ") finding the District in 

violation of the Individuals with Disabilities Education Act 

("IDEA"). I held a hearing on this appeal at which DefendantAppellee Student ("Student") was represented by his father 

("Parent") appearing pro se. After careful consideration of the 

party's briefing, as well as the administrative record, I REVERSE 

the decision of the ALJ. 

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Legal Standard 

I. Statutory Framework 

The IDEA's central purpose is "to ensure that all children 

with disabilities have available to them a free appropriate 

public education that emphasizes special education and related 

services designed to meet their unique needs and prepare them for 

further education, employment, and independent living." 20 

U.S.C. § 1400 (d) (1) (A). A "free appropriate public education" 

("FAPE") includes "special education and related services" that: 

(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 

school, or secondary school education in the State 

involved; and 

(D) are provided in conformity with the individualized 

education program required under section 1414(d) of 

this title. 

20 u.s.c. § 1401(9). 

Oregon has implemented the substantive and procedural 

requirements of the IDEA by statute and through regulations 

issued by the Oregon Department of Education ("ODE"). See ORS 

343.146- 343.193; OAR 581-015-2000 et seq. State standards that 

are not inconsistent with federal standards are enforceable in 

federal court. W.G. v. Bd. of Tr. Of Target Range Sch. Dist. No. 

23, 960 F.2d 1479, 1483 (9th Cir. 1992), superseded by statute on 

other grounds. 

One of the most important components of the IDEA is the 

"individualized education program" ("IEP"), a comprehensive 

written plan developed by an "IEP team" consisting of the 

student's parents, teachers, and representatives of the local 

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educational agency ("LEA"). 20 U.S.C. § 1414(d). "The IEP's 

ultimate purpose is to tailor the educational services the LEA 

provides to meet the special needs created by the student's 

disability and ensure that the student receives the benefit of a 

FAPE." West-Linn Wilsonville Sch. Dist. v. Student ("WestLinn"), No. 3:12-cv-2364, 2014 WL 3778571, at *2 (D. Or. July 30, 

2014). The IDEA requires that the IEP describe the student's 

present levels of performance, annual goals, short-term 

objectives, and the specific educational services to be provided. 

20 U.S. C. § 1414 (d) (1) (A) (i). 

The IDEA permits a parent or LEA to file a complaint with 

respect to any matter relating to the provision of FAPE, which 

may be heard by an impartial administrative law judge ("ALJ"). 

20 u.s.c. § 1415 (b) (6)' (f). 

II. Standard of Review 

Under the IDEA, any party aggrieved by the decision of an 

ALJ may file an administrative appeal in a U.S. District Court. 

2 0 U . S . C . § 14 15 ( i ) ( 2 ) (A) . The party cha 11 eng in g the 

administrative decision bears the burden of persuasion. Hood v. 

Encinitas Union Sch. Dist., 486 F.3d 1099, 1103 (9th Cir. 2007). 

Judicial review in IDEA cases "differs substantially" from 

judicial review of other agency actions. Ojai Unified Sch. Dist. 

v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993). The court reviews 

the full administrative record, as well as any additional 

evidence introduced by either party. 20 U.S.C. § 1415(i) (2) (C). 

The court may "grant such relief as the court determines is 

appropriate" based on the preponderance of the evidence. Id. 

This standard of review has been characterized as "modified de 

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novo review." Ashland Sch. Dist. v. Parents of Student R.J., 585 

F. Supp. 2d 1208, 1212 (D. Or. 2008); West-Linn, 2014 WL 3778571, 

at *2. 

The preponderance of the evidence standard 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." Bd. of Educ. v. Rowley, 458 U.S. 176, 206 

( 1982) . "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." Id. The reviewing court's inquiry is 

twofold: 

First, has the State complied with the procedures set 

forth in the Act? And second, is the individualized 

education program developed through the Act's 

procedures reasonably calculated to enable the child to 

receive educational benefits? If these requirements 

are met, the State has complied with the obligations 

imposed by Congress and the courts can require no more. 

Id. at 206-07. 

A challenge may be procedural or substantive. J.W. v. 

Fresno Unified Sch. Dist., 626 F.3d 431, 432-33 (9th Cir. 2010). 

A procedural violation occurs when a state violates the IDEA's 

statutory or regulatory procedures in creating an IEP. A 

substantive violation occurs when a state offers an IEP that is 

not reasonably calculated to enable the child to receive a 

meaningful educational benefit. Id. 

Courts review the ultimate determination of the 

appropriateness of the educational program de novo. Gregory K. 

v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987); 

Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 

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(9th Cir. 1995). "In the Ninth Circuit, the sufficiency of a 

school district's actions, including evaluation decisions and 

decisions regarding the student's substantive educational 

curriculum are judged by the 'snapshot rule.'" Forest Grove Sch. 

Dist. v. Student ("Forest Grove"), No. 3:12-cv-01837-AC, 2014 WL 

2592654 at *20 (D. Or. June 9, 2014) (citing Adams v. State of 

Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999)). In applying the 

"snapshot rule," a court must determine whether the school 

district's actions were reasonable considering the facts known 

when the decision was made. Adams, 195 F.3d at 1149. 

Nevertheless, reviewing courts must give "due weight" to the 

state administrative proceedings. Rowley, 458 U.S. at 206. The 

degree of deference due to the ALJ "is a matter for the 

discretion of the courts." Capistrano, 59 F.3d at 891 (citation 

and quotation marks omitted). "The amount of deference accorded 

the hearing officer's findings increases where they are thorough 

and careful." Id. Reviewing courts are directed to consider the 

ALJ's findings "carefully and endeavor to respond to the hearing 

officer's resolution of each material issue." Id. The court 

remains free, however, "to accept or reject the findings in part 

or in whole." Id. 

Background 

I. Factual Background 

Student in this case has been diagnosed with autism spectrum 

disorder. At the time of the relevant IEP, Student's 

chronological age was fifteen years and his cognitive functioning 

was equivalent to that of a neurotypical child of five years and 

five months. 

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The record indicates that Student experiences 

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difficulty with transitions, such as changing schools or staff. 

When experiencing change or transition, Student displays 

behaviors which interfere with his ability to access his 

education, such as running away, flopping on the floor, or 

aggression towards educational staff ("behaviors"). 

All parties agree that Student is entitled to special 

education services under the IDEA. Historically, Student's 

special education services have included extended school year 

services ("ESY"), which provided Student with instruction during 

breaks and interruptions of the school year. 

Student moved to Oregon during the summer of 2013. Before 

his relocation, Student lived in Hawaii. On May 23, 2013, 

Student's Hawaiian school district prepared an IEP for Student 

("the Hawaii IEP"). The Hawaii IEP included a provision to 

provide Student with ESY during breaks in the 2012-13 school year 

lasting longer than ten days. The District received a copy of 

the Hawaii IEP before Student's relocation, but was unable to 

acquire Student's other educational records, despite multiple 

requests directed to both Parent and the Hawaiian educational 

authorities. Consistent with the Hawaii IEP, the District made 

arrangements to provide Student with ESY during the summer of 

2013. 

The District adopted a policy entitled "Extended School Year 

Guidance" to guide staff in making ESY eligibility 

determinations. The District copied their policy from the 

information provided on the Oregon Department of Education 

website. In order to be eligible for ESY under the District's 

policy, a student needed to demonstrate "undue" regression and 

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recoupment of a skill or behavior directly related to an IEP 

goal. The policy required that an ESY determination be based on 

measurable data, but provided that, in the absence of documented 

evidence, the determination could be made based on predictions 

according to the professional judgment of the IEP team. 

On November 20, 2013, the District convened a meeting of an 

IEP team to prepare a new IEP for Student. The IEP team included 

Parent, as well as Student's special education teacher and other 

representatives of the District. The IEP team prepared a new IEP 

for Student ("the Oregon IEP"), which substantially revised 

Student's goals and objectives. When Parent raised the issue of 

ESY, the IEP team determined that it would wait to determine 

Student's eligibility for ESY until it had an opportunity to 

gather and analyze data about Student's performance before and 

after the upcoming school breaks. Specifically, the District 

wanted to gather information about whether Student experienced 

regression over break periods and, if so, how long it took 

Student to recoup that lost progress ("regression/recoupment 

data"). Over Parent's objections, the IEP team resolved to make 

a decision on Student's ESY eligibility by April 16, 2014. 

Due to a number of factors including illness and inclement 

weather, the District only had 16.5 school days to gather 

baseline regression/recoupment data between the November 20, 2013 

IEP meeting and the onset of the 2013-14 winter break. Student's 

special education teachers gathered the data by selecting and 

averaging two data points in each relevant area before the break 

to create a "pre-break" average. The teachers repeated the 

process after the break to create a "post-break" average. The 

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pre-break average would then be compared to the post-break 

average to determine if Student regressed over the break. 

Student's special education teacher Dorothy Jewell ("Jewell") was 

primarily responsible for collecting and analyzing the 

regression/recoupment data. Jewell also separately tracked 

Student's behavioral issues on a daily basis, although that data 

was intended for use in refining Student's subsequent IEPs, 

rather than for determining Student's ESY eligibility. 

On March 18, 2014, the IEP team met for a second time. At 

Parent's request, ESY was added to the meeting's agenda. At the 

Match 2014 IEP meeting, Jewell expressed reservations about using 

the pre-winter break data as a reliable baseline, due to the 

short, interrupted, and chaotic pre-break environment. Over 

Parent's objection, the IEP team resolved to wait until after the 

2014 spring break to make a determination about ESY eligibility. 

The District anticipated that the IEP team would use the 

regression/recoupment data collected over the spring break tp 

determine whether to provide Student with ESY over the summer of 

2014. 

Parent submitted a due process complaint to the Oregon 

Department of Education ("ODE"), alleging that the District's 

failure to make an ESY determination at the March IEP meeting 

violated the IDEA. A hearing was held before an ALJ from the 

Oregon Office of Administrative Hearings. 

On April 10, 2014, after spring break, the District convened 

a third IEP meeting. At that meeting, Jewell presented the IEP 

team with her data and analysis regarding Student's regression 

and recoupment over the winter and spring breaks. With the 

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exception of Parent, the IEP team members concluded that Student 

did not qualify for ESY in any area. Parent agreed that Student 

did not need ESY in writing, but felt that Student needed ESY in 

all other areas. Parent objected to the District's data 

collection methodology and the District's analysis of the data. 

Over Parent's objections, the District accepted the determination 

of the rest of the IEP team and determined that Student would not 

receive ESY for the summer of 2014. 

Following the April 2014 IEP meeting, Parent filed a second 

due process complaint with the ODE, alleging that the District's 

decision to deny ESY constituted a denial of FAPE in violation of 

the IDEA. A second hearing was held before the same ALJ. 

II. Procedural Background 

As noted, the question of Student's entitlement to ESY over 

the summer of 2014 gave rise to two administrative due process 

hearings. The ALJ issued her Final Order in the first case, ODE 

Case No. DP 14-102 ("CP-1"), on June 6, 2014. The Final Order in 

the second case, ODE Case No. DP 14-104 ("CP-2"), was issued on 

July 1, 2014. 

A. CP-1 

Parent, on behalf of Student, filed his first due process 

complaint with the ODE on March 19, 2014. Parent alleged that 

the District improperly failed to consider the issue of Student's 

ESY eligibility at the November 20, 2013 and March 18, 2014 IEP 

meetings. Parent also alleged that the District had prohibited 

discussion of ESY at the November 2013 and March 2014 IEP 

meetings and that doing violated Parent's right to participate in 

the development of Student's IEP. Parent alleged that these 

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actions resulted in a substantive violation of Student's rights 

under the IDEA. A two-day hearing was .held before an ALJ on May 

12 and 13, 2014. 

The ALJ issued the Final Order in CP-1 on June 6, 2014. The 

ALJ found for the District on substantially all of Parent's 

claims. The ALJ ruled that the District had lacked the necessary 

data to make an ESY determination on November 20, 2013, and that 

the District had appropriately delayed making a determination 

until after the winter and spring breaks to collect the necessary 

data. In addition, the ALJ determined that the District's ESY 

policy, which determines ESY eligibility based solely on 

regression and recoupment, conforms with the state policy on ESY 

eligibility and did not violate federal rules or regulations. 

Parent did not appeal the ALJ's decision in CP-l. 

B. CP-2 

On April 18, 2014, Parent, on behalf of Student, filed his 

second due process complaint with the ODE. Student alleged that 

the District's decision to deny ESY constituted a denial of FAPE 

in violation of the IDEA, as well as state and federal 

regulations. 

A two-day hearing was held on June 16 and 17, 2014. The 

record of CP-1 was incorporated into the record of CP-2. The ALJ 

heard testimony from Parent, as well as expert witnesses from 

both Student and the District. Student's expert witnesses were 

Joseph Gentry, Ph.D., a psychologist who had worked with Student 

as a consultant for Student's previous school district in 

Arizona, and Aletha Sutton, Ph.D., a special education 

administrator from Student's previous school district in Hawaii. 

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The District's expert witnesses were Kirk Kolb, Director of 

Special Education Services with the District; Dorothy Jewell, 

Student's special education teacher; and Kirby Erickson, regional 

autism consultant for Southern Oregon Education Services 

District. 

On July 1, 2014, the ALJ issued a Final Order finding that 

the District's decision to deny ESY was a denial of FAPE and 

ordering that the District provide 360 minutes of ESY per day 

consistent with the goals and objectives of the Hawaii IEP. 

On July 14, 2014, the District filed a complaint in this 

Court seeking review of CP-2 (#1). Contemporaneously, the 

District moved for an injunction against the enforcement of the 

ALJ's Final Order in CP-2 (#2). On July 18, 2014, I granted the 

District's request for a temporary restraining order (#6) and on 

July 29, 2014, I issued a preliminary injunction in favor of the 

District (#17). 

Discussion 

The ALJ determined that the District's decision to deny ESY 

violated Student's substantive rights under the IDEA. The 

District urges the Court to reverse the decision of the ALJ. 

I. Deference to the ALJ 

As a preliminary matter, I conclude that although the ALJ's 

opinion is lengthy, it is not careful and thorough and I give it 

little deference. 

The ALJ ignored contradictory evidence and testimony. For 

example, in her Final Order in CP-1, the ALJ determined that the 

District had appropriately delayed making an ESY determination 

until it had collected and analyzed regression/recoupment data 

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over the winter and spring breaks. DP 14-102 at 18. The spring 

break data indicates that Student did not experience marked 

regression. Ex. D10 at 1-15; Tr. Vol. 3, at 116:4-125:21. In 

CP-2, the ALJ dismissed the spring break data in a footnote and 

focused entirely on the winter break data. DP 14-104 at 25, n.6. 

With regard to Student's experts, the ALJ credited Dr. 

Gentry's testimony about deficiencies in the District's data 

collection methodology. DP 14-104 at 26. But the ALJ ignored 

Dr. Gentry's testimony that he could not speak to the fidelity of 

the District's methods because he had not been there to observe 

the collection process. 1 Tr. Vol. 4, at 24:14-25:8. Similarly, 

the ALJ relied on the testimony of Drs. Gentry and Sutton in 

holding that, if the data had been properly collected and 

analyzed, it would support Student's eligibility for ESY. DP 14-

104 at 26. This conclusion is directly contradicted by Dr. 

Sutton's testimony that she was not in a position to make any 

determination on Student's ultimate eligibility for ESY. Tr. 

Vol. 4, at 110:3-25. The ALJ makes no reference to the 

contradictory testimony of Dr. Sutton. 

Q. All right. When you look at the raw data that you 

have before you now, in general how would you normally 

determine fidelity of the data if you were not privy to 

the collection process? 

A. In a case like this, where I have only the raw data 

in front of me, it is almost impossible to judge 

fidelity just because, as a consultant, I would be 

training and sitting in with the data collector to make 

sure they're collecting data correctly when they 

collect it . . So without those kinds of things, I 

can't say whether or not this data meets the standards 

of fidelity or not. So it's difficult as far as 

fidelity goes. 

Tr. Vol. 4, at 24:14-25:8. 

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The ALJ also cited Student's experts "considerable 

experience with Student" and their "long history of working with 

Student" in support of the weight given to their testimony. DP. 

14-104, at 26-27. In making this determination, the ALJ ignored 

Dr. Gentry's testimony that he had not worked with Student for 

more than four years before the hearing and that he didn't "know 

[Student] now like I knew [Student] years ago." Tr. Vol. 4, at 

43:2-3, 75:2-77:21. The ALJ also ignored Dr. Sutton's testimony 

that, although she had worked with Student's special education 

team in Hawaii, she had never directly provided services to 

Student or formally observed him. Tr. Vol. 4, at 118:11-120:10. 

The ALJ also made inconsistent determinations in CP-1 and 

CP-2, but does not acknowledge the inconsistencies or attempt to 

reconcile them. The issue of the spring break data has already 

been noted. Additionally, in CP-1, the ALJ determined that the 

District's ESY eligibility standards were appropriate and 

conformed to state and federal requirements. DP 14-102, at 16-

17. The ALJ made the opposite determination on the same issue in 

CP-2, holding that the use of regression and recoupment as the 

sole criterion was a violation of federal standards. DP 14-102, 

at 23-24. 

The remedy ordered by the ALJ also raises concerns about the 

care and thoroughness of the ALJ's opinion. The District was 

ordered to provide Student with 360 minutes of ESY per day 

"sufficient to maintain student's skills and behavior with regard 

to Student's Annual Goals and Short Term Objectives as set forth 

in the May 23, 2013 IEP." DP 14-104, at 28. As noted, the 

Hawaii IEP was superseded by the Oregon IEP, which revised many 

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of Student's annual goals and short term objectives. Neither 

party put on evidence at the administrative level about the 

appropriate amount of ESY needed to meet Student's goals and 

objectives under the Oregon IEP and the ALJ provided no 

justification for the amount of ESY ordered. 2 Furthermore, the 

only issue before the ALJ in CP-2 was the District's decision to 

deny ESY. Student did not contend that the Oregon IEP was 

otherwise defective and the parties agree that it superseded the 

Hawaii IEP. The ALJ's decision to require the District to 

provide ESY consistent with the goals and objectives of a 

superseded IEP raises concerns about the care and thoroughness of 

the administrative decision. 3 

II. ESY 

A. Standard for ESY Eligibility 

The IDEA does not explicitly address ESY. Federal 

regulations require each public agency to "ensure that extended 

school year services are available as necessary to provide FAPE." 

34 C.F.R. § 300.106(a) (1). "Extended school year services must 

be provided only if a child's IEP Team determines, on an 

individual basis, . that the services are necessary for the 

2

At the April 10, 2014 IEP meeting Parent agreed that Student 

did not need ESY for writing. Ex. D11, at 5. The Final Order 

does not account for the IEP team's complete consensus on the 

issue of Student's writing goals. 

3

Student previously argued that ALJ's ordered remedy amounts to 

a typographical error and that it should be properly read to 

require 360 minutes of ESY per day consistent with the Hawaii IEP 

in order to meet the goals and objectives of the Oregon IEP 

(#15). While Student's suggestion would constitute a more 

reasonable remedy, it is not what the plain language of the Final 

Order requires of the District. Nor would such an egregious typo 

rehabilitate the ALJ's opinion as careful and thorough. 

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provision of FAPE to the child." 34 C.F.R. § 300.106(a) (2). The 

federal regulation does not specify the factors to be considered 

in determining ESY eligibility. N.B. v. Hellgate Elementary Sch. 

Dist. ("Hellgate"), 541 F. 3d 1202, 1210 (9th Cir. 2008). 

"A claimant seeking an ESY must satisfy an even stricter 

test because providing an ESY is the exception and not the rule 

under the regulatory scheme." Id. at 1211 (citation and 

quotation marks omitted) . "ESY Services are only necessary to a 

FAPE when the benefits a disabled child gains during a regular 

school year will be significantly jeopardized if he is not 

provided with an educational program during the summer months." 

Id. (citation and quotation marks omitted). A claimant must show 

that ESY is "necessary to permit the child to benefit from his 

instruction." Id. at 1212 (citation and quotation marks 

omitted). Claimants may rely on expert opinion testimony to make 

this showing and need not present empirical proof of actual prior 

regression. Id. 

Oregon regulations provide that the purpose of ESY "is the 

maintenance of the child's learning skills or behavior, not the 

teaching of new skills or behaviors." OAR 581-015-2065(4). 

Oregon school districts "must develop criteria for determining 

the need for extended school year services." OAR 581-015-

2065(5). "Criteria must include regression and recoupment time 

based on documented evidence or, if no documented evidence, on 

predictions according to the professional judgment of the [IEP] 

team." Id. "Regression" is defined as "significant loss of 

skills or behaviors in any area specified on the IEP as a result 

of an interruption in education services." OAR 581-015-

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2 0 65 ( 6) (a) . "Recoupment" is "the recovery of skills or behaviors 

specified on the IEP to a level demonstrated before the 

interruption of services." OAR 581-015-2065 ( 6) (b). 

The District's ESY policy tracks the language and 

requirements of the Oregon regulations closely. To be eligible 

for ESY under the District's ESY policy, a student "must 

demonstrate 'undue' regression and recoupment of a skill or 

behavior directly related to an IEP goal." Ex. Dl, at 1. For a 

student to experience "undue" regression, the student must not 

recoup to his or her pre-interruption baseline within a certain 

time period after the break. 4 Id. 

In this case, the ALJ held that the District erred by 

applying a regression/recoupment standard for gauging ESY 

eligibility. The ALJ based this decision on Johnson v. 

Independent Sch. Dist. No. 4, 921 F.2d 1022 (10th Cir. 1990) . 5 

In Johnson, the Tenth Circuit rejected the use of 

regression/recoupment as the sole criterion for determining ESY 

eligibility and instead required a multi-faceted inquiry. 

Johnson, 921 F.2d at 1027. 

The Ninth Circuit has not explicitly adopted the Johnson 

standard, however. See, Hellgate 541 F.3d at 1211 (acknowledging 

4

The recoupment period varies according to the length of the 

interruption. "Undue" regression occurs if the student does not 

recoup to the baseline within 8 weeks after summer break, 2-3 

weeks after winter break, and 1-2 weeks after the spring break. 

Ex. D 1, at 1. 

5

The ALJ also cited Moser v. Bret Hart Union High Sch. Dist., 

366 F. Supp. 2d 994, 972 (E. D. Cal. 2005), which relied on 

Johnson. Moser predates the Ninth Circuit's Hellgate decision, 

as well as the 2006 USDE notice and comment period. 

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that, as of 2008, "[t]his circuit has not yet developed a 

standard for determining when ESY services are appropriate under 

the IDEA.") To the contrary, in Hellgate, the Ninth Circuit held 

that a lower court did not err in applying a 

regression/recoupment standard. 6 Hellgate, 541 F.3d at 1210. 

The Ninth Circuit's holding in Hellgate is consistent with the 

federal regulations. In 2006, the United States Department of 

Education ("USDE") engaged in a rulemaking comment period. 

During that comment period, the USDE considered suggested 

modifications to the ESY regulations. Assistance to States for 

the Education of Children With Disabilities and Preschool Grants 

for Children With Disabilities, 71 Fed. Reg. 46540 (proposed Aug. 

14, 2006). The USDE explicitly rejected a comment suggesting 

that the regulations be amended to forbid the use of 

regression/recoupment as the sole criterion for ESY eligibility. 

The USDE's response affirmed that the establishment of specific 

ESY eligibility criteria was a question for the states and that 

the states remained free to use regression/recoupment as the sole 

criterion in making an ESY determination, provided that the state 

standard is consistent with the individually-oriented 

requirements of the IDEA. Id. at 46582-83. 

The Oregon regulations require that regression and 

recoupment be considered in making an ESY determination. No 

other factor is expressly required. In formulating its policies, 

6

"[Appellants] assert that the district court erred in 

employing a 'regression/recoupment' standard in determining that 

·C.B. was not entitled to ESY services, as opposed to a multifaceted inquiry, as purportedly required by state law . . We 

disagree." Hellgate, 541 F.3d 1210. 

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which use regression/recoupment as the sole criterion for ESY 

eligibility, the District relied on guidance from the Oregon 

Department of Education's website. I conclude, therefore, that 

the State of Oregon has determined that regression/recoupment is 

the standard for ESY eligibility in this state. Both the state 

regulations and the District policy require that the 

regression/recoupment data be analyzed in the context of a 

student's IEP goals and objectives, which are carefully tailored 

to meet the needs of the individual student. Use of that 

standard is appropriate under Hellgate and the federal 

regulations. 

I conclude that the District's ESY policy conforms with 

state and federal regulations. It was permissible, therefore, 

for the District to base its ESY determination on documented 

evidence of Student's regression and recoupment of skills and 

behaviors related to his IEP. 

B. Student's ESY Eligibility 

As noted, school districts must provide ESY if the IEP team 

determines that ESY is necessary for FAPE. 34 C.F.R. § 

300.106(a) (2). An IEP adequately provides a FAPE if it is 

reasonably calculated to provide a child with a meaningful 

educational benefit at the time it was developed. J.W., 626 F.3d 

at 432. 

1. The 2013-2014 Winter Break Data 

Based on the testimony of Drs. Gentry and Sutton, the ALJ 

found fault with the District's collection and analysis of the 

winter break regression/recoupment data. Dr. Gentry asserted 

that the use of two data points created a very weak pre-break 

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average, and that the data's reliability was further undermined 

by inconsistent collection methodology on non-consecutive days. 

Dr. Sutton opined that Student's daily behavior tracking provided 

a better measure of Student's progress. The ALJ concluded, based 

on the testimony of Drs. Gentry and Sutton, that Student 

experienced undue regression and recoupment problems over the 

winter break. The District contends that the ALJ improperly held 

it to an arbitrarily high standard. 

"An 'appropriate' public education does not mean the 

absolute best or 'potential-maximizing' education for the 

individual child." Gregory K., 811 F.2d at 1314. Rather, states 

must provide a "basic floor of opportunity" that is "individually 

designed to provide educational benefit to the handicapped 

child." Rowley, 458 U.S. at 201. "The primary responsibility 

for formulating the education to be accorded a handicapped child, 

and for choosing the educational method most suitable to the 

child's needs, was left by the Act to state and local educational 

authorities in cooperation with the parents ,or guardians of the 

child." Id. at 207 "[O]nce a court determines that the 

requirements of the Act have been met, questions of methodology 

are for resolution by the States." Id. at 208; see also J.W., 

626 F.3d at 450 ("This vagueness [in the IDEA mandate] reflects 

Congress' clear intent to leave educational policy making to 

state and local education officials."). Collection and analysis 

of educational data, such as regression/recoupment data, is a 

matter of educational policy and methodology. See Virginia S. v. 

Dep't of Educ. of Hawaii, Civil No. 06-00128 JMS/LEK, 2007 WL 

80814, at *12 (D. Hawaii Jan. 8, 2007) ("Questions of ESY 

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eligibility criteria and methodology are classic examples of 

technical questions of educational policy."). 

In this case, the ALJ relied on the testimony of Drs. Gentry 

and Sutton about how the regression/recoupment data might have 

been better collected and analyzed in holding that the District's 

denial of ESY was a denial of FAPE. 7 In doing so, the ALJ held 

the District to an arbitrarily high standard. While the data 

collection and analysis methods proposed by Student's experts 

might be "better" than those employed by the District, the ALJ 

provides no legal authority requiring that the District employ 

those methods. Nor is there any indication that the methods used 

by the District fell below any standard established by the IDEA 

or the state and federal regulations. To the contrary, it is 

well established that school districts are not required to 

provide the "best" educational program. Rowley 458 U.S. at 201; 

Gregory K., 811 F.2d at 1314; see also Virginia S., 2007 WL 

80814, at *13 ("[A]n IEP need not conform to a parent's wishes in 

order to be sufficient or appropriate."). "[P]arents, no matter 

how well motivated, do not have a right under the IDEA to compel 

a school district to provide a specific program or employ a 

specific methodology in providing for the education of their 

handicapped child." Forest Grove, 2014 WL 2592654 at *25 

(citation and quotation marks omitted). 

7

The ALJ properly recognized Dr. Gentry as an expert in the 

collection and analysis of educational data. As noted, however, 

Dr. Gentry was not present for the collection of the data and 

testified that he could not speak to its collection methods or 

fidelity. Nor did Dr. Gentry communicate with the District to 

determine how the data was collected or analyzed. Tr. Vol. 4, 

74:10-75:1. Dr. Gentry's testimony was based instead on his 

assumptions after reviewing the District's raw data. 

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I conclude, therefore, that the ALJ erred in holding the 

District's data collection methodology to the standards preferred 

by Parent and Student's experts. On the issue of the final 

analysis of the winter break regression/recoupment data, the 

record reflects a divergence of opinion on whether the data shows 

undue regression/recoupment problems. I note, however, that the 

District shared many of Parent's concerns about the reliability 

of the winter break baseline data. As discussed below, the 

District's reservations prompted them to delay making a 

determination until they had collected regression/recoupment data 

over the spring break. I conclude that IEP team properly 

evaluated the winter break data in light of the District's own 

reservations about the data's reliability. 

2. The 2014 Spring Break Data 

In addition to the 2013-14 winter break data, the District 

also collected regression/recoupment data over the 2014 spring 

break. The spring break data did not support Student's 

eligibility for ESY. Ex. D10, at 1-15; Tr. Vol. 3, at 116:4-

125:21. 

In her Final Order in CP-2, the ALJ dismissed the 

regression/regression recoupment data collected over the 2014 

spring break as irrelevant. 8 The ALJ based this determination on 

8

The ALJ's discussion of the spring break data is confined to a 

single footnote: "Only evidence on data concerning Student's 

performance before and after winter break is discussed in the 

Opinion. Spring break created a break of five school days. As 

noted by Parent and by Parent's experts, Student suffers 

significant regression-recoupment problems after a break of 10 

days or more. Data collected for Spring break, which consists of 

only five school days, is not relevant to that issue." DP 14-

104, at 25, n.6. 

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the testimony of Parent and Dr. Sutton. DP 14-140, at 27. At 

the administrative hearing, Dr. Sutton testified that Student's 

Hawaiian school district had collected "copious amounts of data" 

showing that Student only experienced regression over breaks 

lasting more than ten days. Tr. Vol. 5, at 105:2-4. This is 

reflected in the ESY provisions of the Hawaii IEP. Ex. S11, at 

16. 

The ALJ's decision to dismiss the spring break data was in 

error. The Oregon regulations and the District's ESY policy 

required the District to base its ESY determination on 

"measurable data" and "documented evidence" unless no data was 

available. OAR 581-015-2065; Ex. D1, at 1. When Student moved 

to Oregon the District received a copy of the Hawaii IEP, but 

none of the supporting data. Ex. Sll, at 16; Tr. Vol. 2, 191:19-

23. It is clear from the record that the District never received 

the "copious amounts of data" referenced by Dr. Sutton, despite 

repeated requests, including one request made at the 

administrative hearing itself. Tr. Vol. 2, at 239:17-240:3; Tr. 

Vol. 4, at 133:4-135:8. The District's own uncertainty about the 

winter break data made the spring break data all the more 

necessary for the IEP team to base their determination on 

measurable data and documented evidence, as required by the 

District's ESY policy and the state regulations. 

Even if the District had been able to review th~ Hawaiian 

data, the IEP team would still have needed to base their decision 

on the regression/recoupment data collected by the District 

because the Oregon IEP revised Student's goals and objectives. 

Tr. Vol. 2, 30:19-21. 

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The Hawaiian data was collected and 

Case 1:14-cv-01115-PA Document 33 Filed 04/29/15 Page 22 of 24
analyzed in the context of Student's previous IEP goals and 

objectives and the determination of Student's ESY eligibility was 

made according to Hawaiian, rather than Oregonian, standards. 

The necessity of pasing ESY determinations on current data, 

rather than past eligibility, was recognized the ALJ in CP-l. DP 

14-102, at 18-19. 

I conclude that the IEP team properly considered the 2014 

spring break data in making their decision on Student's ESY 

eligibility for summer 2014. The ALJ improperly disregarded the 

spring break data in her Final Order of CP-2. 

3. Predictions Based on Professional Judgment 

Consistent with state regulations, the District's ESY policy 

requires that the IEP team base their ESY determination on 

measurable data, unless no data is available. In the absence of 

data, the IEP team may base their ESY determination on 

"predictions according to the professional judgment of the team." 

Ex. D1, at 1. In this case, the IEP team had measurable 

regression/recoupment data from both spring and winter breaks. 

State regulations and the District policy therefore required that 

the IEP team base their decision on that data. Nevertheless, the 

April 10, 2014 IEP meeting notes indicate that the IEP team 

members carefully considered Student's ESY eligibility in each of 

the relevant areas before making their determination. Ex. D11. 

Conclusion 

Upon review of the record and considering both the high 

threshold for ESY eligibility and the deference due to the 

educational authorities, I conclude that Student's IEP, including 

the District's ultimate ESY determination, was reasonably 

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calculated to provide Student with FAPE. The decision of the 

Administrative Law Judge in Oregon Department of Education Case 

No. DP 14-104 is REVERSED. 

IT IS SO ORDERED. 

DATED this ~day of April, 2015. 

United States District Judge 

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