Preciado v. Board of Education of Clovis Municipal Schools, No. 19-cv-0184 SMV/KRS, 2020 WL 1170635, — F. Supp. 3d —-,  76 IDELR 67 (D.N.M. Mar. 11, 2020), covers a wide range of issues that impartial hearing officers confront in deciding special education cases. The court’s affirmance of the hearing officer decision demonstrates the hearing officer’s careful analysis of the evidence and reasoned judgment on multiple legal issues.

The case involved a sixth-grade public school student who consistently performed below grade level in reading during her academic career. She was identified for special education in second grade on the basis of specific learning disability and received pull-out instruction in reading while placed in general education for the remainder of her education. Her reading was a full grade level below her peers at the end of third grade, and she was still reading at a first or second grade level in fourth grade. By the end of fourth grade, she was at no more than a third grade level in reading, but the district, relying on a test that showed some aspects of her reading in an average range, determined she was not eligible for special education. Nevertheless, the district offered an IEP specifying 300 minutes and 150 minutes per week in reading and writing, respectively, but then it did not reliably provide that amount of services. The school began using Orton-Gillingham instruction in fourth grade, but the teacher assigned to provide the services had only one week of training and testified that when he learned how much Orton-Gillingham differed from the reading program he used previously, “it made his head explode.” Id at *8. The parent filed a due process hearing request during the summer between the student’s fourth and fifth grade.

The hearing officer ruled in favor of the parent, finding that that the district violated IDEA procedures by relying in IEP meetings on the student’s scores on a program called Istation without properly interpreting the scores for the parent. That denied the student FAPE, as did, among other things, failing to provide adequate reading instruction and decreasing expectations in successive IEPs without justification, failing to follow the student’s IEP as to amounts of instruction, and failing to provide the student proper assistive technology. The hearing officer ordered the district to keep the student in special education at least through sixth grade, provide compensatory education in reading, writing and spelling in the form of one-on-one instruction with a licensed special-education teacher trained in Orton-Gillingham or a similar program, arrange an independent assistive technology evaluation, and, for the next IEP, furnish a facilitated IEP meeting in which the parent could meaningfully participate.

The court affirmed the hearing officer decision, stressing, among other factors, that the fact the student made some progress did not mean that she was receiving appropriate education: “Yet, the issue is not whether Student has made progress; the Court must determine whether she has made appropriate progress under the circumstances. See Endrew F. [v. Douglas Cty. Sch, Dist. RE-1], 137 S. Ct. [988] at 999.” Id. at *6. Moreover, the district “presented no cogent and responsive explanation for why Student could not learn to read at the level of her general education peers.” Id. at *7. The goals for the IEPs were similar and showed some decrease in level of expected mastery, with no explanation. The reading program prior to fourth grade did not adequately teach the student how to decode words, and there was a lack of evidence that Orton-Gillingham was correctly implemented in fourth grade. The student was only at the nineteenth percentile in reading at the end of that grade and scored worse in some sub-areas. Then in fifth grade the full amount of instruction on the IEP was not delivered. Both hearing officer and judge were skeptical of progress indicated by the Istation scores, which the district could not adequately explain.

The student was absent frequently in third and fourth grade, but the district did not persuasively tie absences to the lack of educational progress. No data established regression after the periods of absence. The district’s objection to the award of compensatory education was that the student no longer needed special education, which the court said was belied by the record. The court noted that the hearing officer “did not discuss her reasoning for ordering one year of compensatory education versus, for example, six months of compensatory education. Yet, the District cites no authority suggesting that the [hearing officer] must engage in that type of detailed analysis.” Id. at 14. The court relied on the discretion of the hearing officer as to the amount of compensatory relief.

The case stands for a number of propositions that may matter a great deal for impartial hearing officers. The test for FAPE is not the opportunity for progress, or even some progress, but rather the opportunity for appropriate progress in light of the child’s circumstances. Further, the expectation under Endrew F. that districts provide “a cogent and responsive explanation for their decisions” is to be taken seriously. See Endrew F., 137 S. Ct. at 1001-02. Districts should not be allowed to rely on tests they cannot persuasively explain to the parent or the hearing officer, and hearing officers who write comprehensive and well-reasoned opinions should be able to enjoy a fair degree of deference as to the amount and nature of the compensatory education they award. Greater deference is almost assured where the hearing officer explains how s/he balanced the competing equities presented and calculated the amount of compensatory educational services awarded given the type of service.