502 F.3d 811

FERGUSON, Circuit Judge,
dissenting:
I.
The majority involves the judiciary in determining the “materiality” of a school district’s failure to implement a student’s Individualized Education Program (“IEP”). This standard is inconsistent with the text of the Individuals with Disabilities Education Act (“IDEA”), inappropriate for the judiciary, and unworkably vague. Given the extensive process and expertise involved in crafting an IEP, the failure to implement any portion of the program to which the school has assented is necessarily material. Therefore, I respectfully dissent.
II.
Under the IDEA, once a school district identifies or assesses a student as learning disabled, it must convene an IEP Team to determine the special needs of the child. 20 U.S.C. § 1414. The IEP Team consists of the child, the child’s parents, at least one regular education teacher (if mainstream participation is contemplated), at least one special education teacher, a specially qualified representative of the school district, an individual who can interpret the instructional implications of evaluation results, and other individuals with expertise regarding the child’s needs and disability. § 1414(d)(1)(B).
Once convened, this IEP Team meets as many times as necessary to draft an IEP for the student. § 1414(d). The IEP is the central document that guides a child’s special education. It details the child’s present levels of academic achievement, his or her goals, the criteria for measuring progress, and the services and accommodations that the school has committed to providing. § 1414(d)(1)(A)®. An IEP is the product of an extensive process and represents the reasoned conclusion of the IEP Team that the specific measures it requires are necessary for the student to receive a free appropriate public education (“FAPE”). The school is required to implement the IEP as part of the IDEA’S broad, overarching purpose “to ensure that all children with disabilities have available to them a free appropriate public education.” § 1400(d)(1)(A).
A school district’s failure to comply with the specific measures in an IEP to which it has assented is, by definition, a denial of FAPE, and, hence, a violation of the IDEA. See § 1401(9)(D) (“The term ‘free appropriate public education’ means special education and related services that ... are provided in conformity with the individualized education program.”) (emphasis added); M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 642 (9th Cir.2005) (quoting statutory definition of FAPE); 34 C.F.R. § 300.323(c)(2) (“Each public agency must ensure that ... special education and related services are made available to the child in accordance with the child’s IEP.”) (emphasis added).
Judges are not in a position to determine which parts of an agreed-upon IEP are or are not material. The IEP Team, consisting of experts, teachers, parents, and the student, is the entity equipped to determine the needs of a special education student, and the IEP represents this determination. Although judicial review of the content of an IEP is appropriate when the student or the student’s parents challenge the sufficiency of the IEP, see, e.g., M.L., 394 F.3d at 642, such review is not appropriate where, as here, all parties have agreed that the content of the IEP provides FAPE. Having so agreed, the school district must “provide[ ] [special education and related services] in conformity with the individualized education program.” 20 U.S.C. § 1401(9)(D).
Instead of trying to understand how material a failure is, we must assume that the IEP Team knew what it was doing when it settled on a specific educational service. Each IEP Team chooses specific services with specific quantities and durations for the purpose of providing the student with FAPE. If the IEP Team had thought another, lesser service would be sufficient to provide FAPE, it would have included that service in the IEP.
Of course, if after implementing the IEP, the school district believes that portions of the program are not essential to providing FAPE, it is free to amend the IEP through the required channels, including a reconvening of the IEP Team. § 1415(b)(3). But allowing the school district to disregard already agreed-upon portions of the IEP would essentially give the district license to unilaterally redefine the content of the student’s plan by default. Such license undermines the collaborative role of the IEP Team and ignores the parental participation provisions of the IDEA. § 1414(d)(3)(A)(ii), (e).
The majority’s standard also suffers from vagueness. It holds that “[a] material failure occurs when there is more than a minor discrepancy between the services provided to a disabled child and those required by the IEP.” It provides little guidance as to what constitutes a minor discrepancy. If an IEP requires ten hours per week of math tutoring, would the provision of only nine hours be “more than a minor discrepancy”? Eight hours? Seven hours? Because most IEPs contain such quantitative requirements for special education services, the majority’s standard will provide little guidance in resolving these implementation issues.
III.
In the present case, no one disputes that the district failed to fully implement the IEP. In particular, the IEP required, inter alia, that (1) Christopher’s aide and teacher would be trained in autism by the State; (2) Christopher would receive augmentative communication services for two hours per month from a regional provider; (3) the Autism Consultant would visit Christopher’s school twice weekly for the “first few months;” (4) Christopher’s report card would use his current goals; (5) all work would be presented at Christopher’s level; and (6) the school would fully implement Christopher’s Behavior Management Plan. None of these services was' provided as specified in the IEP.
At Christopher’s initial hearing challenging the implementation of the IEP, the Administrative Law Judge properly began its inquiry with the question, “Did the District fail to implement [Christopher’s] Individualized Education Program?” It then went a step further, however, asking, “If so, did that failure result in a loss of educational opportunity such that [Christopher] has been denied a Free and Appropriate Public Education.” The district court and the majority appear to follow this same sequence of questions. Yet, only the first question is relevant. Having determined that the school district failed to implement the IEP, our inquiry must end.
The IEP Team crafted the IEP with an eye toward providing Christopher with FAPE. Any subsequent deviation is necessarily material. For example, Christopher’s IEP Team concluded that the aide who spent all day, every day with this severely autistic child must be trained by the State in working with autistic children. If the IEP Team had determined, as the majority has, that it was sufficient to have the aide attend “local autism classes and meet with individuals who had worked with [Christopher] in the past,” it would have explicitly stated as much in the IEP. The majority also finds it excusable that the school district did not work toward all of Christopher’s short-term objectives, “given the extremely large number of such objectives.” If the IEP Team thought fewer objectives were sufficient to provide FAPE, it could have included fewer.
Not having met with Christopher and worked extensively on his educational needs, this panel is not in a position to determine whether any of these failings was material. We do know, however, that Christopher’s IEP Team, made up of twelve members including representatives of the district, thought that each of these measures was sufficiently important to be included in the IEP. We should not now second-guess whether such inclusions, or the failure to provide them, were material.
IV.
I would reverse the district court and hold that the school district’s failure to fully implement the IEP, to which it expressly assented, violates the IDEA.
. The majority contends that "determining ‘materiality’ has been a part of judging for centuries.” See maj. op. at 822 n. 4. Curiously, it gives the example of contract law to prove this point. Id. Yet only a few pages earlier, it states, in no uncertain terms, that "[a]n IEP is not a contract” and that contract law is irrelevant in cases like this one. Id. at 820.

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