Emotional Disabilities


Social Maladjustment vs. Emotional Disability Revisited  (September 18, 2017) *

Historically, the Congressional definition in 1975 was taken verbatim from a definition first promulgated by a psychologist, Dr. Bower, in 1957.   The social maladjustment clause was added as an afterthought by Congress when voting on Public Law 94-142 and while there has been a vast amount of speculation, literally no one today really knows why.   What is clear is that in determining eligibility, social maladjustment is really irrelevant.   In order to be identified as having an emotional disability, a student must meet the following conditions:  (1) the student must exhibit one of the five characteristics in the federal definition (one of which is inappropriate behavior under normal circumstances; (2) over a long period of time; (3) to a marked degree; and (4) that adversely affects educational performance in the educational environment to such a degree that special educational services are needed for that student to receive FAPE.    If the team can document that the student has met all of those conditions, whether or not he or she is socially maladjusted is irrelevant for identification purposes.  (And if the team cannot document that the student has met all those conditions, whether or not he is socially maladjusted would also be irrelevant.) None of the four conditions above, it should be noted, is operationally defined in the federal regulations.

Changing gears slightly, some people have focused on the word “condition” in the federal definition as posing a potential roadblock in eligibility determinations if a particular “condition” has not been identified..  Again, the federal regulations offer non additional guidance, but the states themselves have (most parsimoniously) equated “condition” to its antecedent, “emotional disability.”

That does not mean identifying the student’s behavioral problems would be ittelevant, however, because knowing all of the student’s strengths and weaknesses is essential  in determining the present levels of academic achievement and functional performance (PLAAFP) required to write an IEP that would provide the student with FAPE.   Additionally, while an oppositional defiant disorder and conduct disorder are frequently equated with social maladjustment,  a diagnosis of either would entitle a child to consideration for protections and services under Section 504 even if special educational services were not required.  While nothing in the IDEA requires school psychologists to diagnose a disability, nothing in those regulations prohibits a school psychologist from diagnosing dyslexia, dyscalculia, ADHD, oppositional defiant disorder, conduct disorder or any one of the disabilities described and defined in the current Diagnostic and Statistical Manual.

Some states have issued guidance that parallels the opinions above.   If your state does not, referencing the documents listed in the Social Maladjustment and State Guidance section below.

New (August 1, 2016) OSERS/OSEP Guidance on Positive Behavioral Interventions *

The new guidance (16 pages) on the  Inclusion of Behavioral Supports in IEPs was issued because

“Recent data on short-term disciplinary removals from the current placement strongly suggest that many children with disabilities may not be receiving appropriate behavioral interventions and supports, and other strategies, in their IEPs.   During the 2013 – 2014 school year, 10 percent of allchildren with disabilities,ages 3 through 21, were subject to a disciplinary removal of 10 school days or less, with children of color with disabilities facing higher rates of removal. For instance,nineteen percent of black children with disabilities, ages 3 through 21, were subject to a removal of 10 school days or less within a single school year.  In light of research about the detrimental impacts of disciplinary removals, including short-term disciplinary removals, the Department is issuing this guidance to clarify that schools, charter schools,and educational programs in juvenile correctional facilities must provide appropriate behavioral supports to children with disabilities who require such supports in order to receive FAPE and placement in the least restrictive environment (LRE).

As a practical matter, providing appropriate behavioral supports helps to ensure that children with disabilities are best able to access and benefit from instruction.

Image result for social maladjustment

State Guidance and Social Maladjustment back *

One issue that seems to come up again and again is how the concept of social maladjustment is to be constructed.   Although it has been addressed in a some court cases as a substantive factor, in actuality the language is meaningless.   It would have been just as meaningful to have written,

“The definition of emotional disability does not include children who are red headed unless they also have an emotional disability under paragraph (c)(4)(i) of this section.”

Or  “‘Dogs’ includes shih tzus. The term does not apply to poodles, unless it is determined that they are also ‘dogs’ under paragraph (c)(4)(i) of this section.”  (Ron Dumont)

Or  ““Emotional disturbance may include children with red hair. The term does not apply to children who have blond hair, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.” (John Willis)


A + B = 25
A = 25
B = ?    (JW)

There have been books, there are checklists, and there are even rating scales purporting to help differentiate between a student who is emotionally disturbed and a student who is “just” socially maladjusted.  Obviously, just being a bat is not a disability.   However, The IDEA definition does not distinguish between children with internalizing and externalizing emotional disorders.  In the vast majority of cases we have reviewed, children are excluded from eligibility not because of their I wish I could make my sons school understand that!: behavioral problems (social maladjustment)  but because the school has successfully argued that those behaviors had not adversely affected the student’s educational performance.   If a student meets the criteria for classification as emotionally disabled, whether or not he or she is also socially maladjusted is irrelevant.   In adversarial situations where ED eligibility is being contested, courts have sometimes gone at the question bass ackwards, first determining that the child is SM and then going on to ask if he or she is ED.  In the real world of public education, if an evaluation documents that a child meets ED criteria, the SM question need only be addressed in determining the child’s needs.

The issue has been addressed more formally in some state guidance documents.  Some examples of state guidance (and brief excerpts regarding some of their views on social maladjustment) are provided below.

The final paragraph in the NC document above succinctly summarizes the role of social maladjustment in the eligibility process:

If the practitioner in the field suspects a child has behavioral or emotional difficulties and is in need of special education services, the evaluation team must conduct a comprehensive multi-faceted evaluation that addresses all areas of the eligibility criteria in the definition. The results of such evaluation should be the primary consideration for eligibility determination. For educational purposes, medical and/or psychiatric diagnoses do not, in and of themselves, qualify a child as seriously emotionally disturbed. This eligibility determination can only be made by a properly constituted IEP team of persons knowledgeable about the student. If, after reviewing the results of an appropriate evaluation, the team is satisfied that the student meets the criteria for seriously emotionally disturbed, it is inconsequential whether the student may also be socially maladjusted. Under the federal and state definitions, if the child meets one or more of the five identifying characteristics and the four considerations, he or she is eligible for special education services regardless of the presence or lack of social maladjustment.

Connecticut: Guidelines for Identifying and Educating Students with Emotional Disturbance (123 pages)   With respect to the social maladjustment factor, Connecticut suggests the following:

The Connecticut definition of ED specifies that students who are socially maladjusted do not qualify for special education unless they are also emotionally disturbed. Certain characteristics (e.g., “inability to build or maintain satisfactory interpersonal relationships with peers and teachers” and “inappropriate types of behavior or feelings under normal circumstances”) may be consistent with both social maladjustment and emotional disturbance. In these cases, the qualifying conditions or limiting criteria for ED (long period of time, marked degree and adverse effect on educational performance) must be rigorously applied to prevent the misidentification of students.  p. 27

Colorado provides its schools with  Guidelines for Determining Eligibility for Special Education for Students with Serious Emotional Disability 104 pages, 2017 as well as a Guidebook for Determining the Eligibility of Students with SIED (86 pages)  Colorado too dissects the SM issue in excruciating detail, but then says:

Because of the frequent co-occurrence of emotional disturbance and social maladjustment, professionals should avoid using an emotional disability vs. social maladjustment strategy for identification of an SED. Instead, Multidisciplinary Teams should identify an emotional disability in accordance with the five eligibility criteria first, and the degree to which social maladjustment is evident next.    p. 41

Maryland (54 pages): The Role of the School Psychologist in the Identification of Emtional Disability.    Maryland addresses the social maladjustment clause by citing a paragraph from NASP Best Practices, with guidance similar to that from NC above.

MSPA recommends that the term “socially maladjusted” be used to refer to students who behave in socially unacceptable ways for socially unaccepted motives within the sociocultural environment of the school (MSPA, 1994). While the IDEA and COMAR do not define the concept of “social maladjustment,” McConaughy and Ritter (in their chapter in NASP’s Best Practices in School Psychology IV) offer a helpful commentary on this issue: “To guide best practice, school psychologists and other evaluators are encouraged to focus first on assessing the IDEA (or State) defined characteristics for ED… Once ED/EBD criteria are met, further evidence of social maladjustment is irrelevant for purposes of determining eligibility for special education or 504 accommodations. The presence of social maladjustment along with ED/EBD, however, is an important factor to consider in planning interventions, since children with such problems often require mental health or social servcies in addition to educational services to meet their needs (McConaughy & Ritter, 2002, p.1315).”      pp. 24-25

Mississippi: Effectively Responding to Students with Emotional Disabilities: IEP Development, Behavioral Supports, and Educational Benefit  142 pages

Mississippi’s state guidance, while offering extensive resources for professionals involved with children who are identified as emotionally disabled, perpetuates the myth that children with emotional disabilities are “not likely” to demonstrate concerns related to anti-social behavior.  In thirty eight years as a practicing school psychologist, this writer cannot remember a single teacher who referred a single  child  as being suspected of ED who did not also display some degree of social maladjustment.  Even if there was any merit to trying to make a distinction between the two (and there is not) as an eligibility issue, the 2006 FR requires schools to use reliable and validated measures when making eligibility determinations.   There aren’t any SM v. ED rating scales meeting those criteria.  Trying to parse out as some have suggested whether it is the SM or the ED causing the SM adversely affecting educational performance is a bit like asking which came first, the chicken or the egg.  Without the advantage of Biblical scripture to settle the issue. (Geneses 7:14-16)

There is additionally underlying all of these distinctions a philosophical/theological premise not found in the IDEA itself or its enabling regulations . . . i.e., that some children have Free Will and some do not.   Parsing out how much free will any of us have after we account for the effects of BOTH nature and nurture is a subject that is or should be well beyond the scope of any ED evaluation.

National Sources of  Information *

The Center for Parent Information and Resources provides an excellent summary regarding Emotional Disability originally published by NICHCY that may be shared with parents.

NICHCY published the following family and user friendly document on Emotional Disabilities.   OSEP is   no longer funding NICHCY and their website was closed.  However, much of their rich library was transferred to the Center for Parent Information and Resources.   NICHCY’s Tips for Teachers of ED Children did not make the cut and is included here  because the 8 Tips still appear relevant.  (Unfortunately, the embedded links have all gone dark.)

OSEP Letters on ED *

A search of OSEP’s database provided three letters regarding emotional disabilities, all from 1999.  Although some of the content remains relevant, anything written before July, 2004, should be regarded with caution.   References to 34 CFR 300 in the letters below refer to regulations no longer carrying the force of law.

Letter to Anonymous, June 11, 1999  ” the services and placement needed by each child with a disability to receive FAPE must be based on the child’s unique needs, and not on the child’s disability.”  The letter also reiterates that it was Congress’s intent, by eliminating the word “Serious,” to eliminate the pejorative effect of the word, not to change the meaning of the label in any respect.

Letter to Anonymous, September 20, 1999.  Of limited application.  Referred the recipient to a section of the 1999 Federal Regulations, Answers to Commonly Asked Questions about Discipline under the IDEA.   While that discussion was not rendered totally irrelevant by the substantive changes made in the 2006 Regulations,  specific references to the language of the 1999 FR should not be relied upon.

Letter to Anonymous, December 1, 1999.  Again, a “not very helpful” letter.  Basically details the steps OSEP was taking to ensure that providers of services to children with emotional disabilities were highly qualified.  Which at the time many were not.

Not all OSEP letters affecting the rights of children with disabilities were written about children with emotional disabilities.  For example, in the cases reviewed below, more school cases were won by arguing a lack of adverse impact on educational performance than by focusing on social maladjustment vs. emotional disability.

OSEP wrote a Letter to Clarke, 2007, regarding how they defined educational performance.  Although the context was speech and language, OSEP wrote “” It remains the Department’s position that the term “educational performance” as used in the IDEA and its implementing regulations is not limited to academic performance.”  They went on to cite the language of the IDEA “Section 614(b)(2)(A) of IDEA and the final regulations at 34 CFR §300.304(b) state that in conducting an evaluation, the public agency must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information. Therefore, IDEA and the regulations clearly establish that the determination about whether a child is a child with a disability is not limited to information about the child’s academic performance. Furthermore, 34 CFR §300.101(c) states that each State must ensure that a free appropriate public education (FAPE) is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.”  However, despite the broadened definition provided by OSEP,  federal courts are not necessarily bound by their interpretation, especially if a student’s disciplinary record reflects no or minor violations of the student code of conduct, academic grades are within the average range, and the frequency of suspensions (if any) have not affected his or her progress in the general curriculum.

OSEP Guidance on Manifestation Determinations *

Since 2000,  OSEP has issued four letters regarding Manifestation Determinations.  Only one, however, in 2005, was issued after passage of the IDEIA 2004 and none have been issued since publication of the 2006 FR.  Letters published before 2004 may not be consistent with the current revision of the IDEA.   The requirement for a manifestation determination hearing is of course required before a long term disciplinary action irrespective of the child’s label.  However, for the most up to date OSEP information on conducting Manifestation Determination Hearings, see theirQuestions and Answers on Discipline Procedures, Revised 2009.  This document addresses twenty five separate questions  regarding Safeguards, Definitions, Interim Alternative Placements, Manifestation Determinations, Hearings, and  FBAs, It superceded their 2007 guidance (and all of the guidance below.)

Letter to Redacted, March 18, 2005.  Letter regarding the requirements of Part B of IDEA for conducting a manifestation determination review for children with disabilities in disciplinary situations.  The letter concludes, 34 CFR §300.523(a)(1)-(2).  Part B does not require that a manifestation determination review occur when a disciplinary removal is being considered; rather, the requirement to conduct the manifestation review determination is triggered on the date that the decision is made to implement a removal that constitutes a change of placement, and such review must occur “immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made.”  With regard to your inquiry, Part B does not require that a manifestation determination occur prior to scheduling or conducting an expulsion hearing.  

Letter to Yudien, August 1, 2003.  Sought to answer two (2) questions:  (1) Should a manifestation determination be centered solely on the disability that served as the basis for the eligibility determination, or could the team consider whether the conduct was a manifestation of a newly suspected disability? (2) If a reevaluation subsequently determines that the child in fact did have an additional disability, would it be possible to reopen the manifestation determination?  With respect to the first question, OSEP wrote, “There is nothing in the statute or the regulations implementing Part B of IDEA that limits a manifestation determination review only to the disability that served as the basis for the eligibility determination.”  With respect to the second question, OSEP did not believe the Hearing should be “reopened” but that if the MDT determined additional information was needed in order to provide a comprehensive reevaluation, “in OSEP’s view, the ten-day timeline at 34 CFR §300.523(a)(2) also is not intended to preclude the IEP team from making an appropriate determination that additional evaluations must be completed in order to make a manifestation determination. For example, where a student is being reevaluated to determine the existence of an additional disability, such as emotional disturbance, and engages in misbehavior prior to the completion of the evaluations, it may be appropriate for the IEP team to convene the review within the ten-day timeline, but decide to continue the review at a later time in order to consider the results of the completed evaluations. ”  (References are of course to the 1999 CFR.)

Letter to Brune, March 17, 2003.  A similar question, similarly unhelpful response in this writer’s view.  OSEP’s summary:  “Letter clarifying that, while the IDEA statute and regulations do not address the issue of conducting more than one manifestation determination review for the same incidence of behavior, any new information regarding the incident could be used as a basis for an IEP meeting to reexamine the student’s program and placement.”  Again, regulatory references in the letter itself are outdated.

Letter to Ousterhout, July 25, 2000.  Letter clarifying the circumstances that constitute a change in placement that would trigger a manifestation determination review and the use of positive behavioral interventions, strategies, and supports to address the needs of students with behavioral issues.  Advice regarding FBAs in the letter was rendered obsolete by passage of the IDEA 2004.

Other Resources on Myschoolpsychlogy.com  relevant to Emotional Disabilities

Discipline and the Disabled

Q and A’s on Discipline

Sped Resources:  Social, Emotional and Behavioral Issues

Court Cases involving emotional disabilities *

What follows (in reverse chronological order) are a number of cases involving children with emotional disabilities.  Some of the cases are important and precedential; some not.   The regulations regarding manifestation determinations were revised substantially in the 2004 IDEIA.   On other ED issues, however, findings from 1988 (and following) are as relevant today as they were then.


Sam K. v. Hawaii Department of Education  (Ninth Circuit, June 5, 2015)
Key Words:  Tuition reimbursement, private school, unilateral versus bilateral placement, attorney fees
Published?  Yes
Decided for:  The parents

A 21 page published decision with precedential value for nine western states including Alaska, Hawaii, California, Washington, Oregon, Idaho, Montana, Nevada, and New Mexico.

The student suffered from emotional problems.  He was parentally placed in a private school in 2007 and the Dept. of Education agreed to pay for his tuition that year in a settlement agreement through 2010.  The parents and school system met several times in the summer and fall to develop a new IEP, and the student continued in the private placement as the school year began.  The school system did not present a proposed placement until January, 2011.  They were not informed that this was the district’s final offer until March, 2011.  The parents rejected the proposal and filed a request for a due process hearing in October, 2011.  The Hearing Officer found the proposed public school placement inappropriate and that the placement proposed had been predetermined by the school system prior to the development of an IEP and without significant parental involvement.  The parents however had received notice of the decision in March, 2011 and did not file for a hearing within the 180 days required by Hawaii.  Ordinarily, if a parentally placed child in a private school setting is receiving FAPE, and the offered IEP was not reasonably calculated to offer FAPE, then . . . absent the alleged untimely filing . . . the parents would have prevailed.  However, the district court found that because the school system had paid for the preceding three years, and had failed to provide an IEP before the beginning of the 2010-2011 school year, that the placement was bilateral, not unilateral, and that (therefore) the state 180 timeline did not apply.  Although the school system had not provided written approval of the placement, the Ninth Circuit held that consent may be tacit.  Since the school system knew the child was attending Loveland, the private school, and since they had paid for his tuition the previous three years, and since it had not offered an IEP prior to the 2010 school year, the school system was responsible.

The award of attorney fees in these cases can be significant.  In this decision, the award to the parent attorney by the district court was “only” $77,226.93 based on an hourly rate of 285 dollars per hour (the total would of course be higher after preparation for the Ninth Circuit hearing.)  The parent attorney had been asking for $375 an hour.  The discussion of attorney fees was probably the most generalizable of the conclusions in this decision.

Although of precedential value in the Ninth, one of the judges disagreed with the distinction made between bilateral and unilateral placements made by this court.  A different set of judges could therefore have resulted (and in a different circuit could result)  in a very different outcome.  Also, timelines vary from state to state, so the timeline violation alleged in this case would not have been an issue in a state, even a state in the Ninth Circuit, with a different timeline.  Another illustration of that very basic principle in spedlaw, i.e., the outcome of any court case always rests in part on a roll of the dice.

 H.M. v. Weakley School Board (W.D, Tennessee, Eastern Division, March 13, 2015)
Key Words:  Emotional Disability, social maladjustment, tuition reimbursement
Published?  Yes
Decided for:  The parents

Although not a circuit decision, this case illustrates a seemingly obvious but important point:  apply the same principles of law, but change the facts, and you can get a very difficult outcome.   Compare this case to Springer v. Fairfax, where an adolescent male was denied eligibility by the Fourth Circuit because, in their view, he was just socially maladjusted, not emotionally disabled.  In that case, however, the student in question had done well academically until he fell in with bad company, and even then was liked by almost everyone, including his teachers.

Adversarial proceedings in this case date back to 2008, when it was first heard before an administrative law judge.   IDEA related cases that reach the courts number on average less than a hundred per year, but once a school is engaged, they initiate a process that will consume staff and financial resources for years.  In this instance, briefly, the court had before it a child who had been sexually abused by an adult at the age of nine, who had suffered loss around the same time due to the death of her beloved grandfather, and who subsequently, though bright, engaged in a variety of maladaptive behaviors over time including cutting herself and (later) running away with her boyfriend.  The initial hearing in 2008 found for the parents, but the ALJ had not determined that the child actually qualified as emotionally disturbed.  The school system appealed, the case was remanded to another ALJ (the original ALJ having been dismissed by the state of Tennessee) who found, based on current psychiatric testimony, that the girl was NOT emotionally disabled, just socially maladjusted.   This despite a 2005 psychiatric evaluation that had diagnosed  an “oppositional defiant disorder; major depression, recurrent, moderate; parent child relational problems; alcohol abuse; sexual abuse of a child victim issues and PTSD symptoms and Axis IV: severe stressors, history of childhood sexual abuse, parents’ divorce, difficulty with academics and difficulty with peer relations.”

The court in this instance compared the facts of this case using the principles of law enumerated in Springer, saying in part,

Although “socially maladjusted” is not specifically defined by the statute, the Fourth Circuit’s decision in Springer v. Fairfax County School Board, 134 F.3d 659 (4th Cir. 1998) is informative. The court defined the term as “continued misbehavior outside acceptable norms” and “a persistent pattern of violating societal norms with lots of truancy, substance abuse, i.e., a perpetual struggle with authority, easily frustrated, impulsive, and manipulative.”

Fort Bend Independent School System v. Douglas A,, Fifth Circuit (decided February 5, 2015).  In this unpublished decision, the Fifth Circuit reversed a district court decision in 2014 for the parents.  That decision awarded the parents tuition reimbursement for a private school placement because a school psychoogist had failed to conduct what the district court judge considered to be a comprehensive evaluation (believing that marijuana use, not an emotional problem, was at the root of all is problems.)  An evaluation at the private school, however, resulted in a diagnosis of reactive attachment disorder.  Tuition reimbursement, however, depends not only a finding that the school failed to provide FAPE, but that the parent’s choice did provide the child with an appropriate education.   The parents must ALSO show that their placement was primarily for educational reasons.  In this instance, however, the Circuit court concluded “For the RedCliff placement, the evidence uniformly supports the conclusion that the parents placed Z.A. for noneducational purposes; indeed, the court found that he was placed at RedCliff because his parents were concerned that he would make another attempt at suicide and because he had a drug problem. There is, however, no evidence showing that they then enrolled Z.A. at CALO for educational reasons.”  The District Court decision was reversed in favor of Fort Bend.  No remand, game over.

Paul T. v. South Huntington School District, Suffolk County Supreme Court, June 16, 2015.  Not all spedlaw cases are held in federal court, although higher court decisions would have wider precedential value.  The student in question had been bullied and, as a result, developed emotional problems (detailed in the decision.)   The parents requested consideration for special education, but the school’s Eligibility Group  declined,   Although the child’s emotional problems had been the result of events happening at school, the committee determined that as a result there was insufficient evidence of adverse impact on educational performance.  The judge concluded, “Under the facts presented herein, in order for Petitioners to prevail, being bullied in and of itself would have to constitute a disability. No reasonable interpretation of statute, regulation or caselaw permits such a result. It is for the Legislature, not this Court to make such a declaration.  Accordingly the application to set aside the determination of the SRO is denied and the Petition is dismissed.”


Jana K. v. Annville Cleona School District, District Court, August 18, 2014  The issues here were Child Find, eligibility as emotionally disabled, and compensatory education.  The statute of limitations for bringing a case varies from state to state, but in this state actions were barred before the date a plaintiff knew or should have known (KNOSHK) of  a violation. In brief,  the court ruled that a plaintiff had two years to bring a complaint after the KNOSHK date and could litigate events occurring up to two years BEFORE the KNOSHK date.  In this instance, the school district knew of the child’s outside services though it never received a copy of the parent’s evaluation, knew her academic performance was declining, provided general education accommodations, but never referred her.  In 2012,  “the Hearing Officer determined,inter alia, that the District had violated its Child Find obligation to Jana by not evaluating her for a disability prior to the beginning of the statutory period. His conclusion was based primarily upon his finding that there was ample evidence that Jana was exhibiting all of the symptoms and behaviors of Emotional Disturbance and that the District was well aware of the same. . . As a remedy, the Hearing Officer awarded Jana thirty minutes of compensatory education for each week that school was in session between February 24, 2010 and the end of the 2010-2011 school year.”  After a lengthy review, this court concluded, “Jana as a student with a disability and in need of special education. The court will also affirm the Hearing Officer’s finding that the District’s Child Find violation resulted in a substantive denial of a FAPE for which compensatory education is owed. However, the court will vacate the Hearing Officer’s award of thirty minutes compensatory education for each day that school was in session between February 24, 2010 and the end of the 2010-2011 school year. The court will instead award full days compensatory education for that time period.”  The district had argued that the student received SOME educational benefit during the time in question; the court declined to “parse out” how many of those hours were appropriate and how many were not.


Moore v. Hamilton Southeastern School District, District Court, 8/29/2013  This case was about a student who had serious emotional problems, was denied services (in effect) because he had a C average despite being extremely bright, who was suspended from school, and who committed suicide.  The parents sued.  This particular decision, however, did not rule on the parents, but only whether they could proceed with their claims.  The school system moved for summary judgment on all the claims.   The district court judge granted some of their requests, denied others.  In summary, constitutional claims were denied because in order to prevail, the plaintiff must show that the defendant’s behavior was so egregious that it “shock the conscience.”  This the parents did not do.  However, the school’s failure to provide services when the student’s emotional problems were so well documented just because he was passing all is courses was characterized as “negligent” by the judge.  In summary, his decision was:

we rule as follows on Defendants’ Motion for Summary Judgment:
(1) Count One: wrongful death under state-law negligence – the motion is DENIED.
(2) Count Two: negligence per se for violation of the IDEA – the motion is DENIED.
(3) Count Three: negligence per se for violation of the Rehabilitation Act – the motion is
(4) Count Four: recovery under 42 U.S.C. § 1983 for violation of the IDEA – the motion
is DENIED as to Defendant HSE, and GRANTED as to defendants Tige Butts and Brian
(5) Count Four: recovery under 42 U.S.C. § 1983 for violation of the Rehabilitation Act –
the motion is GRANTED as to all Defendants.
(6) Count Four: recovery under 42 U.S.C. § 1983 for violation of the Due Process Clause
of the Fourteenth Amendment – the motion is GRANTED as to all Defendants.
(7) Count Five: violation of Title IX of the Education Amendments of 1972 – the motion

District of Columbia v. Pearson, District Court, Feb 8. 2013  In this case, the hearing officer had found that the district had provided the student with FAPE but ordered that the district provide additional services to enhance his education.   The school district appealed, asking that the hearing officer’s determination of FAPE be upheld but that the order for additional services be vacated.  The judge ruled for the school system, saying there was no evidence to show that the services ordered by the H.O. were needed to provide FAPE, were justified by the record, or would help to reduce truancy, the purpose of the services ordered.

G.H. v Great Valley School District, District Court, 2013  Another tuition reimbursement case wherein a child was exhibiting some severe behavior  problems, was placed in a private school by the parents despite being provided speech and language services and after being declared ineligible for classification by the school system, denied eligibility (and tuition reimbursement) by a hearing officer and (here) once again denied eligibility and tuition reimbursement.   She was privately diagnosed with disruptive behavior disorder, oppositional defiant disorder, and attention deficit hyperactive disorder.  The parents were asked to sign a notice of recommended educational placement (NOREP), which the court interpreted as formal agreement.  It is probably relevant to mention that this case was never framed as an ED v. SM issue.  What ultimately doomed the parents’ case is that the school contended that despite some minor issues, the child’s behaviors in school were never severe enough to warrant classification as ED. The parents were unsuccessful in refuting that claim.  While the court here found that the child’s behaviors met the first element of the federal definition, where the parents’ case failed was in showing that it adversely affected her educational performance.  The district, on the other hand, demonstrated in some detail that its conclusions were based upon a comprehensive evaluation.  The court concluded, “The primary legal issue before the Court is*3030whether S.H.’s behavioral issues qualify her for special education under the IDEA’s definition of emotional disturbance. The plaintiffs have not put forth sufficient evidence that S.H.’s behaviors had an adverse effect on her educational performance. Under the IDEA and the Supreme Court’s holding in Rowley, the District’s actions afforded S.H. FAPE throughout her time in the District. The Court grants the defendant’s motion for judgment on the administrative record. It denies the plaintiffs’ motion seeking the same.”


Dudley v. Lower Merion School District,  E.D. PA, February 2, 2011 and Dudley v. Lower Merion School District, November 29, 2012.   The student, recently returned from a Juvenile Detention facility (aged 20) was diagnosed with a learning and an emotional disability.   He was provided with an IEP but the parents went to due process and the hearing officer concluded that while the placement was appropriate, the school needed to add as compensatory education tutoring services.  The student refused to go, even when someone came to get him.   The mother sued again, also alleging her rights had been violated because the school had destroyed his test protocols.   The judge determined that while the latter was a procedural violation, it did not rise to a denial of FAPE.  He also ruled against the parent on the more substantive complaint, writing in the decision above, ” The School District made substantial efforts to compel W.J.W. to attend these classes, including speaking with W.J.W., trying to escort him to classes, calling his parent, and speaking to his attorney. Plaintiffs have not denied that the School District made these efforts and have come forth with no admissible evidence to show that W.J.W. was cooperative during the time in question. The School District cannot use physical force on W.J.W. aside from escorting him to class, which it attempted to do. See 22 Pa. Code § 14.133. This represents a reasonable, good faith effort to comply with the hearing officer’s decision. The School District need not be compelled to engage in an exercise in futility. Therefore, we will grant the School District’s counterclaim on this issue.”  The raised a transportation issue de novo, but since it had not been raised at the hearing, the judge ruled it irrelevant.   The parent also complained that the school had not identified a particular placement at one of the IEP team meetins, and the judge ruled that the IDEA did not compel the school to do so.  They had offered multiple options to the parent which she declined because apparently she wanted her child to go to a private school that had not accepted him.  The judge in the order above reversed the decision of the hearing officer, finding for the school system.

J.P. v. Department of Education of the City of New York, District Court, February 2, 2012.  In this unpublished decision, the judge was asked to rule that the placement offered by NY was too restrictive and to order them to pay for their private school placement.   The judge did neither, finding that the child’s behavioral issues justified a more restrictive placement than he might have otherwise needed based on academic skills alone; and although finding that the school’s offering was appropriate could have settled the matter, the judge denied them tuition reimbursement because ” plaintiffs’ request for reimbursement should be denied because their actions indicate that they never intended to send J.P. to a public school and initiated this process to obtain public funding for his private education.”

Munir v. Pottsville Area School, District Court, June 14, 2012  Another win for the school system.  The long and the short of it as that the judge found “The record clearly indicates that O.M. was placed at Wediko to treat severe emotional and psychological problems, and although he received an education while at Wediko, he was not placed there primarily for educational purposes.”


Hansen v. Republic III school district, eighth circuit, January 21, 2011   If this case had originated in 1991 instead of 2011, the school district’s actions might have been less incomprehensible.  In brief, the student had been diagnosed with a conduct disorder, a bipolar disorder, ADHD,  was having serious academic problems, frequently expressed suicidal ideation . . . and the school was arguing he did not qualify as having an emotional disability.   The district disagreed with the school, and the school appealed.   The circuit court, comparing Hansen to Springer (see Fairfax v. Springer, 1998, below), agreed with the district court.   The majority on the panel agreed that Hansen met the standard for classification as SED, but even the judge who disagreed with that finding, concurred that he should have been classified as OHI.


L.F. v. Houston Ind. School District,  (S.D. Texas 2010)  This case was a dispute over the court’s consideration of evidence presented at a prior hearing and the parent asked the court to reconsider its opinion by ordering a new trial.   The court had concluded that the school system’s IEP provided FAPE.  There was no dispute as to the child’s eligibility.  Request denied.  The school system prevailed.

Tracy N. v. State of Hawaii, Department of Education,, District Court Hawaii, 2010  This case also did not involve eligibility as an issue, but it was a tuition reimbursement case.  The parent alleged in part that the school system’s delay in providing her child with services entitled her to reimbursement, but also alleged that the placements provided by the school system and proposed by the school system would not provide her child with FAPE.   Those arguments are detailed in the 50 page decision above, along with the judge’s reason for rejecting them.  (Found for the school system.).

Compton Unified School District v. Addison,  (9th Cir. 2010)  In this case, the parent argued that the district had ignored her child’s learning and behavioral problems and had failed to properly identify him as a child with a disability.  The school system had argued that they had done nothing affirmatively to injure the child and that the suit should be tossed.  The court disagreed, awarding attorney fees to the parent.  “We conclude that claims based on a local educational agency’s failure to meet the “child find” requirement are cognizable under the IDEA, and that here, the School District had clear notice of this fact. Accordingly, the district court’s orders granting judgment on the pleadings and awarding attorneys’ fees are AFFIRMED.

Shaw v. Weast,(4th Cir. 2010)  This case was over a multi-handicapped child for whom emotional disturbance was just one of many disabilities.  The parents had placed the child in a residential facility and were seeking reimbursement.   The school had offered a private day placement in lieu of the residential placement, which the parent rejected.  Although the student’s mental and emotional needs might have required a level of care not available at the private day school, the 4th circuit found, “That E.S.’s emotional and mental needs required a certain level of care beyond that provided at Foundation does not necessitate a finding that the state should fund that extra care when it can adequately address her educational needs separately.”  (Found for the school system)


Thomas Loch v. Board of Education, Seventh Circuit, June 19, 2009.  In this unpublished (non precedential) 5 page decision, the 7th Circuit was asked to overturn the school’s decision not to classify this girl as emotionally disabled.  She had a history of diabetes, for which she had received accommodations via a 504 Plan, but when she entered high school, her grades began to fall, and she was diagnosed by a private practitioner as suffering from anxiety and depression.  Then she stopped coming to school.  The parents wanted her evaluated to see if, via an IEP, she could be assigned to a community college, earning her credits there.  The school determined, after consultation with her physician, that there was no medical reason for her absenteeism, and her psychiatrist, whom she had not seen in six months, said that when she terminated services, she was not on medication, and she denied having any symptoms.  In the interim, the student had earned three A’s and a B at the community college.   There was really no way the parents could have won this case.   First, the student was 18 when they filed, and IDEA rights have transferred to the student . . . they had no standing.  Second, apparently due to a misunderstanding of the futility exception, they had not exhausted administrative remedies before going to district court.  The parents offered no reason why, if she did well in community college, she would have been entitled to special education under the IDEA.   And lastly, the parents  could not show that the school had committed any procedural violations fatal to the school’s case.  Decision:  summary judgment for the school system upheld.

MSG v. Lenape High School, Third Circuit, January 13, 2009  In this unpublished (non precedential) Third Circuit decision, the court ruled for the school system.  The issued brought before the hearing officer was the student’s complaint that he had unlawfully been denied services after ten days of suspension; compensatory education was sought.   The hearing officer dismissed the claim because the student “failed to state the reason for M.S.-G.’s suspension, or describe M.S.-G.’s individualized education program (“IEP”) and his ‘current placement.’ It also failed to include factual details relevant to M.S.-G.’s requested remedies, such as circumstances which might necessitate a return to his current placement, and facts indicating whether he communicated with the defendants about the proposed psychiatric evaluation, or whether the defendants refused to accommodate the request.”   An amended complaint was filed with the dates of suspension but was still lacking in specifics.   The Third Circuit affirmed the decisions of the Hearing Officer and District Court to dismiss.


Damian v. School District of Philadelphia, Eastern District Court, January 27, 2008  The complaint sought compensatory education and alleged failures on the part of the school district in restraining the student.  The school system was supposed to convene an IEP team meeting following the use of restraint and in this instance (restrainng the child when he started to flip desks and chairs) did not.   The judge did not find that the procedural failure resulted in a denial of FAPE.   However.  The employ of a teacher who was not qualified, not certified, and who was teaching the child from his previous IEP, did result in a denial of FAPE.  The school rectified the deficiencies during the second half of the school year, so the judge only awarded compensation for that period of time that the student’s class was led by an unqualified teacher (the first half of the school year.)

Richardson Independent School District v. Michael Z,   District Court, April 22, 2008.  Not an ED case per se, the issues here involved a child with multiple disabilities, including severe behavioral problems including aggression and sexual acting out.  Citing Carter v. Florence Cty  (a case discussed with links on our Landmark page), the court concluded that the parents could be reimbursed for expenses incurred for services not necessarily included in the IEP.  The court found that , “Leah suffered from numerous debilitating conditions, including bipolar disorder, separation anxiety disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, and pervasive developmental disorder. Defiant and aggressive, Leah lashed out at teachers, skipped class, and was generally unreceptive to instruction. Repeated outbursts also limited her ability to focus, to absorb lessons, and to complete assignments in a timely manner. As a result, Leah struggled academically in the approximately twelve schools she attended.”  As a result the court used its broad discretion to award the parents reimbursement for the related services including “room and board, neurological diagnostics, and therapeutic and nursing services.”  The decision included a detailed analysis by which reimbursement for attorney fees could be calculated as well; that discussion, however is beyond the scope or purpose of this summary.   The bottom line, however, was that “defendants are entitled to reimbursement of $54,714.40 for Leah’s private placement and related services, $35,600 in attorney’s fees, and$1,168.20 in clerical costs, plus other attorney’s fees to be determined.


District 284 v. A.C., Eighth Circuit, February 14, 2001  The parents sought tuition reimbursement for the private school placement they provided for their child with emotional disabilities.  The decisions here were pretty consistent, each level finding that the district’s recommendation for a day placement would not meet the student’s needs, as the student would not attend.  The district was trying to make the case that the student’s unwillingness to come to school was a matter of will, not inability.  The Eighth’s decision is illuminating because they refused to buy that argument, saying that “Read naturally and as a whole, the law and the regulations identify a class of children who are disabled only in the sense that their abnormal emotional conditions prevent them from choosing normal responses to normal situations. See Honig, California Superintendent of Public Instruction v. Doe, 484 U.S. 305, 320 (1988) (stating, of an emotionally disturbed student, that “[i]t is [the student’s] very inability to conform his conduct to socially acceptable norms that renders him ‘handicapped’ within the meaning of the EHA”).   The court found additionally,  “Because the preponderance of the evidence shows that she will not receive educational benefit in the less restrictive setting, the statute’s preference is overcome here. It then remanded the case back to the district court to determine equitable relief.


Johnson v. Metro School System, District Court, August 10, 2000.    The parents had sought special education for their child, Tiffany.   The Hearing Officer had ruled that she was not eligible as SLD, SED, or OHI.  The parents appealed the decision to the district court.  Several psychologicals had been completed, with the psychologists saying her behaviors were atypical for ADHD (not explained in the decision) but that she’d need the kinds of services that a child with ADHD required.  The school psychologist reviewed the reports and suggested the student might be SED, but the mother thought ADHD was the more appropriate Dx.   Because the previous psychologicals were “unclear” the school contracted for a psychiatric evaluation.  Medical confirmation of ADHD had not been obtained, and the psychiatrist diagnosed ODD but said that in his opinion the symptoms did not warrant classification as SED.  The school psychologist completed an evaluation for the school system.  He also concluded the child was not SED (as a sidenote, not a school psychologist’s call.)  The parent appealed and between the date of the meeting “apparently” saw three other mental health specialists, one of whom diagnosed ADHD based on the child’s positive response to medication.  (Another sidenote: response to medication is another discredited way to dx ADHD.)  The school argued that the suit should be tossed because the parents had not asked for a second due process hearing, an argument the court dismissed.  The multitude of voices  provided a cloudy picture at best, but the court also dismissed the argument that the child’s problems were primarily behavioral, not emotional, the court found the conclusion of one of the evaluators that the underlying cause was a bipolar disorder persuasive. The court also cited testimony that Tiffany exhibited “inappropriate feelings under normal circumstances, a qualifying characgeristic under the federal definition. And while the student was making good grades while in school, she was falling behind because the school kept suspending her . . . and the suspensions, resulting from behaviors related to her emotional disabliity, were adversely affecting her educational performance.  Decision for:  the parent.  Tuition expenses were awarded.


Muller v. Committee for Special Education, East Islip Union Free School District, 1998, Second Cir.  This case, not reported elsewhere in this website, applied substantially the same standard as the fourth circuit in the case above, but reached an opposite conclusion.  “We conclude that the Mullers’ placement of Treena in the EAC Program, after the District erroneously determined that she was ineligible for benefits under the IDEA, was appropriate, see Burlington, 471 U.S. at 370, 105 S.Ct. 1996 and “reasonably calculated to enable [her] to receive educational benefits.”  Rowley, 458 U.S. at 207, 102 S.Ct. 3034.   The same standard, different facts, different outcome.  This case had as of 2015 been cited in 34 subsequent judicial opinions.   In one of the more recent decisions,  2009, in Rachel Eschenasy v. New York City Department of Education, March 24, 2009, the District Court, applying the same standards, found the child to be eligible for services.   Parents won tuition reimbursement for one school, not for the another (because in the view of the court it did not provide FAPE.)

Springer v. Fairfax Cty, 4th Circuit, 1998.   If after careful analysis of the IDEA’s definition of an emotional disability, the student could not be qualified, then socially maladjusted behaviors or depression over getting caught would not be sufficient to qualify that student for IDEA protections.


Rafael Oberti v. Borough of Clementon, Third Circuit, 1993  If the reason for a child’s violation of the Student Code of Conduct could be linked to the school’s failure to implement the IEP, that student could not be suspended long term or expelled.


Babb v. Knox County, Sixth Circuit, May 29, 1992.   This was an early tuition reimbursement case. The school psychologist, after reviewing the boy’s records for the past three months, concluded he did not qualify for consideration as SED.  Then they expelled him.  The parents appealed.  Within the context of this subject matter, most of the behaviors convincing the court of the child’s eligibility were externalizing, ranging from breaking a gerbil’s leg and urinating on classmates at age four to destruction of property, assaults on siblings and classmates, and property theft.   It said,“These outward manifestations are nothing less than road signs marking Jason’s tragic mental decline. Psychiatrists diagnosed Jason as a person who was “decompensating into a thought disorder which seems to be increasing in severity as he grows older.”    The court ruled that trying to distinguish treatment from education ran counter to the language of the Act, ruled in favor of the parents, and remanded the case back to the district court to determine how much money they should get to cover their costs AND to determine the amount of attorney fees to which they would be entitled.

21fairly severe degree of psychopathology…. [and] exhibit[ed] a highly ideational/schizoid personality style that is marked by underlying rage, paranoid misinterpretation of interpersonal situations, hyper vigilance, affective reactivity, impulsive acting out of unconscious issues, intense splitting, suspiciousness, and withdrawal into fantasy.

It found the school psychologist’s evaluation woefully inadequate as it did not take into consideration the long history of behavioral and psychiatric problems that would have been revealed in a good social history.   Because the school had not provided the student with FAPE, and the parent’s unilateral placement had provided the student with FAPE, the Third Circuit found the school system liable for the parent’s tuition costs.


A.E. v Independent School District 25, Tenth Circuit, June 10, 1991  In this 25 year old year case, a girl had been found ineligible for classification under the EHA as SED.  Her parents wanted that decision overturned.  The Tenth Circuit declined to do so.  The reasoning by the court was and is suspect and in this reviewer’s opinion rather pointless since the school prepared an IEP for the student as SLD and included provisions addressing her behavioral needs.  The court wrote, “While Dr. Graybill admitted that A.E. had emotional problems, he did not feel that her problems were of such a magnitude as to meet the federal definition of seriously emotionally disturbed.”  And based on Dr. Graybill’s feelings ruled against the parents.


Honig v. Doe, 1988   Established the rights of children with a disability to a manifestation hearing before long term suspensions and curtail the rights of schools to unilaterally expel or suspend students when their violations of the Code of Conduct were a manifestation of his disability.

On-line  References. * *


An older analysis of pre 2000 litigation

Court Decisions of Interest to School Psychologists

Ron Dumont, NCSP and Joe Janetti

While examining various recent court and due process cases, we discovers a few that may be of interest to school psychologists. We have excerpted relevant portions of the decisions and commented below. Obviously, the entire transcript provides more complete detail.

MULTIPLE HANDICAPS: IDEA and state regulations provide descriptions of special education categories. Found among the commonly agreed upon handicapping conditions is “multiple handicap.” The description below seem to prove the point that although the law allows for multiple handicapping diagnosis, there is nothing in the law that says it has to be correct. The diagnosis of the child appears to have been made by shooting a shotgun blast at the DSM-IV and using any label that the buckshot hit.

• (26 Indiv. with Disabilities Educ. Law Rep. 1073 Arkansas JONESBORO PUB. SCHS. No. H-97-23 August 25, 1997)

A 12-year-old student diagnosed with pervasive developmental disorder, attention deficit hyperactivity disorder, depressive disorder, major depression, bipolar disorder, psychosis, cyclothymic disorder, learning disorder, oppositional defiant disorder, mixed personality disorder, and impulse control disorder was determined to be eligible for special education under the category of other health impaired. The student attended district schools with various interruptions for psychiatric hospitalizations. Each hospitalization was initiated by the parents.

ESTABLISHING ELIGIBILITY: IDEA presents fairly straight forward definitions and descriptions of what constitutes requirements for special education eligibility. This interesting court decision confirms that each single criteria is necessary, but insufficient by itself, to qualify a student for special services.

• (IDELR 1104 26 Indiv. With Disabilities Educ. Law Rep. 1104 California Irvine Unified Sch. Dist. No. Sn 1170-96 February 11, 1997)

A pediatrician diagnosed a 16-year-old student with attention deficit disorder and dyslexia during the student’s second grade year. The student never qualified for special education services. When the student was in high school, the student’s parent requested that the school district assess the student because of his declining grades. After the assessment was completed, the district’s IEP team met and determined that the student was not eligible for special education services. The parent disagreed with the IEP team’s conclusion and placed the student in a private school. Held: for the district.

The hearing officer declined the parent’s request for reimbursement, finding the student was not eligible for special education services. Although the student’s most recent testing showed a discrepancy between the student’s ability and achievement in the area of mathematics calculation, the hearing officer refused to base a finding of eligibility for special education on a single testing score. The hearing officer therefore turned to the issue of whether the discrepancy was caused by a psychological processing disorder and determined that the student did not suffer from a disorder in one of the basic psychological processes. Even if the student did have a severe discrepancy that was caused by a psychological processing disorder, the student’s parent did not establish that the discrepancy could not be corrected through services offered within the regular instructional program, according to the hearing officer. The student therefore was not eligible for special education services, and his parent was not entitled to reimbursement for the costs of the private school.

SERIOUS EMOTIONAL DISTURBANCE vs SOCIAL MALADJUSTMENT: Over the years, much debate, controversy, and confusion has arisen from the social maladjustment “exclusion clause” of the serious emotional disturbance category. Should school psychologist attempt to determine if the behaviors manifested by a student are the result of maladjustment as opposed to mental health problems? Are certain psychological condition, by themselves, indicative of social maladjustment? Apparently some believe it is possible.

Oppositional defiant disorder:

• IDELR 524 Delaware no. 97-11 September 16, 1997

Based on the student’s prior oppositional defiant disorder diagnosis, the district declined to classify the student under the category of serious emotional disturbance, instead finding that the student was socially maladjusted. Held: for the district.

The appeals panel concluded that the student did not have a serious emotional disturbance. The student’s problems appeared more behavioral than mental. Moreover, the student’s own witness was unable to identify the exact nature of the student’s difficulties. The panel finds the evidence is consistent in supporting the finding that [ ] is socially maladjusted and has oppositional defiant behavioral disorder. While being socially maladjusted and having oppositional defiant behavioral disorder does not preclude the classification of seriously emotionally disturbed, the evidence does not support the finding that [ ]’s problems are mental health problems. All of the findings are consistent with [ ]’s problems being behavioral.

Adjustment disorder:

• IDELR 1090 Iowa in re: Theodore a no. Se-192 September 2, 1997

A 14-year-old student was expelled from school after committing acts of vandalism. A juvenile court assigned the student to a youth home for a comprehensive diagnostic and evaluation assessment. In the meantime, the parents requested a comprehensive evaluation by the district to determine if the student was eligible for special education due to a behavior or learning disorder, and if his behavior was a manifestation of his disability. The parents contended that pending completion of the evaluation, the student was entitled to stay in school under the stay-put provision of the idea. The district argued that the stay-put provision did not apply in this case since the student was not a student with a disability at the time of his expulsion.

The administrative law judge found that the student was not eligible to remain in school under the stay-put provision. The evidence failed to demonstrate the student had an IDEA disability. The student’s grades did not reflect declining academic performance, and a diagnosis of the student as having an adjustment disorder did not appear to conform to the conception of disability adopted by the IDEA. Further, the ALJ concluded that prior case law and an OSEP policy memorandum mandated denying the student the protection of the stay-put provision. There was no evidence that the district knew or reasonably should have known that the student was a student in need of special education. To the contrary, a school official testified that the student was not regarded as having behavior or emotional problems which affected his educational performance. Therefore, the stay-put provision did not apply and the student’s expulsion was valid.

This final case is informative for the court’s decision about juvenile delinquency, drug use, and serious emotional disturbance. Because of the length of this case we have excerpted relevant portions.

• United States Court of Appeals for the Fourth Circuit No. 97-1482 E. P. Springer v. The Fairfax County School Board (CA-95-1789-A) January 23, 1998

E S and his parents seek reimbursement from the Fairfax County School Board for tuition paid to a private school in which the Springers enrolled E after he failed the eleventh grade. The School Board determined that E was not suffering from a “serious emotional disturbance,” as the Ss claim, and that he was therefore ineligible for special education services under the Individuals with Disabilities Education Act, 20 U.S.C. ¤ 1415 (“IDEA”). The district court upheld the State Review Officer’s determination that E was not disabled and that his parents were not entitled to tuition reimbursement. Because the applicable IDEA regulations do not equate mere juvenile delinquency with a “serious emotional disturbance,” we affirm.

The Ss claim that E exhibited a serious emotional disturbance that entitled him to special education services, including reimbursement for tuition at the New Dominion School. However, we agree with the SRO and the district court that E’s juvenile delinquency did not reflect a serious emotional disturbance within the meaning of the federal and state regulations implementing IDEA.

They first attempt to show that E exhibited one of the five enumerated symptoms of a serious emotional disturbance by asserting that he was unable “to build or maintain satisfactory interpersonal relationships with peers and teachers,” 34 C.F.R. ¤ 300.7(b)(9)(i)(B). However, ample evidence supports the SRO’s contrary finding. His father indicated that “E has lots of friends across a broad spectrum, from very good students to the academically unsuccessful students.” E perceived himself as “socially . . . very involved with a large group of people that he considered friends.” Dr. R’s observation of him confirmed this self-perception, as did his history of involvement with social and extracurricular activities during his time in the Fairfax County schools. Nor did E fail to develop good relationships with teachers. His French teacher from McLean High, G T, told the LHO that she “really liked E, and . . . still really like[s] E.” His history teacher from McLean, R P, described E as “very friendly [with] peers and me.” And even Mr. and Mrs. S have described E as “respectful of teachers and appropriate,” and indicated that he “got along well with his teachers.”

The Ss also claim that E exhibited a second enumerated symptom, “a general pervasive mood of unhappiness or depression,” id. at ¤ 300.7(b)(9)(i)(D). However, we agree with the SRO and the district court that the record simply does not support this contention. Three separate psychological evaluations of E revealed

Two of the psychologists who reached this result, Dr. R and Dr. K, were chosen by the S’s themselves. Dr. R even noted that based on his depression and anxiety testing “E is reporting significantly fewer symptoms and distress than is typical of an adolescent his age.” The observations of those who had regular contact with E during the eleventh grade confirm these psychological findings. For example, E’s French teacher, who saw E on at least 160 days during that year, testified that”[h]e did not appear sad. There was no pervasive sadness. He had friends. He was laughing, joking in the hallways.” The only contrary evidence, indeed the only hint that E ever suffered from depression at all, was the “sketchy” and “incomplete” letter from ….

The Ss still have failed to establish the critical causal connection between this condition and the educational difficulties E experienced, the final step in proving a serious emotional disturbance. Id. at ¤ 300.7(b)(9)(i).

Prior to his eleventh grade year, E had made steady educational progress, advancing from grade to grade on schedule. Cf. Rowley, 458 U.S. at 209-10 (evidence that student was advancing from grade to grade indicated educational progress). In the eleventh grade E stopped attending classes, regularly used drugs and alcohol, and engaged in other criminal activities.

“Because the applicable IDEA regulations do not equate mere juvenile delinquency with a “serious emotional disturbance,…It seems incontrovertible that E was socially maladjusted….the term [socially maladjusted refers] to “continued misbehavior outside acceptable norms.” See also In re Sequoia Union High Sch. Dist., 1987- 88 EHLR Dec. 559:133, 135 (N.D. Cal. 1987) (“socially maladjusted [is] a persistent pattern of violating societal norms with lots of truancy, substance . . . abuse, i.e., a perpetual struggle with authority, easily frustrated, impulsive, and manipulative”).

“Courts and special education authorities have routinely declined…to equate conduct disorders or social maladjustment with serious emotional disturbance. See, e.g., A.E. v. Independent Sch. Educ., 753 F. Supp. 65, 71 n.8 (D. Conn. 1990); In re Morgan Hill Unified Sch. Dist., 19 IDELR 557, 564- 65 (SEA, Cal. 1992).”

“The fact “[t]hat a child is socially maladjusted is not by itself conclusive evidence that he or she is seriously emotionally disturbed.” A.E., 936 F.2d at 476….Indeed, the regulatory framework under IDEA pointedly carves out “socially maladjusted” behavior from the definition of serious emotional disturbance.”

“…no evidence of abnormal depression or other emotional disturbance”

“Dr. N’s diagnosing E with dysthymia….This condition is clinically defined as less severe than a major depressive disorder….This evidence simply does not support the Ss’ claim that E experienced “pervasive . . . depression,”

“The precipitous drop in E’s grades at this time appears to be directly attributable to his truancy, drug and alcohol use, and delinquent behavior rather than to any emotional disturbance. See In re Pflugerville Indep. Sch. Dist., 21 IDELR 309, 311 (SEA, Tex. 1994)(noting that when student had made passing grades prior to involvement with drugs, “it is inferentially permissible to attribute any lowering of his grades to his unwise choice to spend less mental energies on his academics and to spend more mental energies on [drug activities]”).”