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MARSHALL JOINT SCHOOL v. C.D. EX REL. BRIAN D.
616 F.3d 632 (2010)
MARSHALL JOINT SCHOOL DISTRICT NO. 2, Plaintiff-Appellant,
v.
C.D., by and through his parents, BRIAN and Traci D., Defendant-Appellee.
Traci and Brian D., as parents of and on behalf of their minor child C.D., Plaintiffs-Appellees,
v.
Marshall Joint School District No. 2, Defendant-Appellant.
Nos. 09-1319, 09-2499.
United States Court of Appeals, Seventh Circuit.
Argued November 12, 2009.
Decided August 2, 2010.
Joanne H. Curry
(argued), Lathrop & Clark, Madison, WI, for Plaintiff-Appellant.
Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. The Appellee C.D. is now a fifth-grade student in the Marshall Joint School District. In kindergarten he was diagnosed with a rare genetic disease, and since then the school district has provided him with additional resources in his academic classes and special education in gym. When he was in second grade the school district reevaluated his eligibility for special education, and a team of educational professionals determined that he no longer met the criteria. His parents disagreed and sought administrative review; the administrative law judge ("ALJ") conducted a lengthy hearing, concluded that the school district had erred, and found that C.D. was still eligible for special education. The school district appealed to the district court, which affirmed, and now it appeals to this court. Because the ALJ applied the wrong legal standard in the eligibility analysis and there is not substantial evidence to support her findings, we reverse. I.In 2004, C.D. was diagnosed with Ehlers-Danlos Syndrome ("EDS"), hypermobile type, which is a genetic disease that causes joint hypermobility, commonly called double-jointedness. In C.D.'s case the symptoms are serious: he has poor upper body strength and poor postural and trunk stability, and he suffers from chronic and intermittent pain.1 In 2006, he was also diagnosed with attention deficit hyperactivity disorder, inattentive type. After the EDS diagnosis, C.D. was evaluated and deemed eligible for special education services under the Individuals with Disability Education Act, 20 U.S.C. § 1400, et seq. ("IDEA" or "Act"). As part of the process, the school district assembled a team of educational professionals to develop an Individualized Education Program ("IEP") for him. Under the IEP, he received adaptive physical education six times a month, physical therapy, occupational therapy, assistive technology, supplemental aids and services, and program modifications in his academic classes. Specifically, his first IEP included providing C.D. with frequent bathroom breaks; positioning aids; extra time to complete academics; motor and self-help tasks; and fine motor adaptations (tape recorder, dictation and limited writing assignments). In the classroom, he used a floor rocker to conserve energy, a special chair at work tables, and a slant board. And when he moved around the school, he could ride in a wagon if walking made him too fatigued. C.D., 592 F.Supp.2d at 1063. In January 2006, when C.D. was in first grade, a second IEP was created that contained new goals and strictures for his participation in gym class. Among other
measures, the IEP called for a periodic consultation between C.D.'s adaptive gym teacher, Stefanie Pingel, and his regular gym teacher before each class and at least fifteen minutes of consultation each month between Pingel and his physical therapist and occupational therapist. C.D., 592 F.Supp.2d at 1063. A year later, as prescribed by the Act, the team began a periodic reevaluation of C.D.'s eligibility for special education. At the time, C.D. was engaging in regular gym class with certain limits placed on his participation to avoid injury; he also met six times a month with Pingel for adaptive physical education, which is simply another name for special education in gym—we use the terms interchangeably here. The adaptive physical education consisted of providing alternative activities for C.D., so instead of regular pushups, C.D. would do wall pushups; instead of regular jumping jacks, he would do "snow angels" or do the jumping jacks on a mat. All of this reduced the impact on his joints. In addition, the rules for some of the games the students played were tweaked to allow him to safely participate.2 These modifications were in place when C.D. was in second grade; now he has finished fifth grade, and the school is operating under the same IEP, and providing the same exact services, as mandated by law, until this suit is resolved. 20 U.S.C. § 1415(j). Under the Act, schools must follow a two-step process to determine whether a student is a "child with a disability" and thereby eligible for special education services. 20 U.S.C. § 1401(3)(A). First, the student must have one of the ailments listed in the statute. Although EDS is not listed, there is a catch-all category titled "other health impairment." Id. § 1401(3)(A)(i). For a health condition to qualify as an "other health impairment," it must manifest itself in one of a variety of ways, and it must "[a]dversely affect[] the child's educational performance." 34 C.F.R. § 300.8(c)(9)(ii). Second, if the child's condition does adversely affect his educational performance, then the team must determine whether as a result he "needs special education." 20 U.S.C. § 1401(3)(A)(ii).
1. There is an extensive record in this case with many actors, opinions, and reports. The district court compiled a detailed and comprehensive factual history of this case which can be accessed at Marshall Joint School Dist. No. 2 v. C.D. ex rel. Brian and Traci D., 592 F.Supp.2d 1059 (W.D.Wis.2009). For the sake of brevity, we recount only those facts that are pertinent to our analysis and holding. 2. These included keeping C.D. from crawling under other children's legs during "wizard tag," "playing goalie to conserve C.D.'s energy during soccer or hockey, reducing his need to run during `alien dodge ball' by having the teacher intervene in the game periodically, and letting his partner run during relay races or the treasure island game and having him sit down if he became fatigued." C.D., 592 F.Supp.2d at 1065. 3. The phrase "adversely affects a child's educational performance" is not defined in either the Federal or Wisconsin Regulations. See Mr. I v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 11 (1st Cir.2007); Wis. Stat. § 115.76; Wis. Admin. Code §§ PI 11.35, 11.36. And we express no opinion on how that term should be defined. Our review is limited to whether the ALJ applied the correct legal standard in rejecting the team's finding.
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