A second-grader was diagnosed with Attention Deficit Hyperactivity Disorder and Developmental Coordination Disorder and received accommodations through Section 504 of the Rehabilitation Act. For the following year and a half, no additional services were provided.

Shortly before the student started fourth grade, the parents requested that the student be evaluated for special education services. The district refused on the basis that the 504 accommodations were sufficiently addressing the student’s needs. One month later, a private neuropsychologist diagnosed the student with a specific learning disability with impairment in written expression and recommended that that the student be considered for special education services. At that point, the district agreed to evaluate the student.

While evaluating the student for special education services, the district documented that the student was reported to have “average or near average abilities in the areas of basic reading, reading fluency, reading comprehension, math calculation, math reasoning, oral expression and listening comprehension” but “apparent deficits in written expression.” It also noted that the student “displayed a tendency toward inattentiveness to a significant degree across all settings” and found that the student met eligibility criteria for IDEA services as a student with an SLD in the area of written expression.

A draft IEP was prepared and an ARD meeting was held. At the meeting, the ARD committee formalized its determination that the student was eligible for special education services. However, the parents declined to agree with the IEP and informed the district that they had retained a parent advocate to attend a second ARD with them.

Sometime between the first ARD meeting and the second, district staff held a “staffing” at which the district’s outside counsel was present. The parents were not invited. The district informed the parents at the second ARD meeting that the student was not eligible for special education services. The student finished fourth grade with only 504 accommodations, earning all A’s and B’s, with no discipline referrals.

The parents requested a due process hearing, alleging that the district had “coached” the teachers to a finding of no eligibility at the “staffing.” Following a hearing, the special education hearing officer ruled that the student was eligible for special education services, finding a “shocking difference” in the opinions expressed by teachers and district staff at the first ARD meeting as compared with the second. The parents filed suit against the school district in district court to recover attorneys’ fees, and the school district filed a counterclaim, challenging the decision that the student was eligible for services. The district court ruled in favor of the parents and the school district appealed.

The only issue considered by the court of appeals was whether the student needed special education services. In conducting that analysis, the court noted that it must assess eligibility using the information available to the ARD committee at the time of its decision, without the benefit of hindsight. Therefore, whether or not the student succeeded without an eligibility determination was irrelevant.

It then noted that, at the time, the district formalized the eligibility decision based on the input of a dyslexia specialist, an occupational therapist, an educational diagnostician, an assistant principal, a special education teacher, two general education teachers and a licensed specialist in student psychology. Twelve days later, after a private meeting, the district reversed itself based on no new meaningful information.

The court of appeals affirmed the judgment of the district court and found that the student was eligible for special education services.