PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                  _______________

                      No. 17-3065
                    _______________

K.D., by and through her parents, Theresa and Jonathan Dunn;
THERESA DUNN AND JONATHAN DUNN, individually,
                                       Appellants

                            v.

      DOWNINGTOWN AREA SCHOOL DISTRICT
               _______________

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                 (D.C. No. 2:16-cv-00165)
      District Judge: Honorable Lawrence F. Stengel
                    _______________

                   Argued June 19, 2018

   Before: GREENAWAY, JR., RESTREPO, and BIBAS,
                  Circuit Judges

                (Filed: September 18, 2018)
                     _______________
Catherine M. Reisman, Esq. [ARGUED]
Judith A. Gran
Sarah E. Zuba
Reisman Carolla & Gran
19 Chestnut Street
Haddonfield, NJ 08033
       Counsel for Appellants

Kevin A. Golembiewski, Esq.
David Berney
Berney & Sang
1628 John F. Kennedy Boulevard
8 Penn Center, Suite 1000
Philadelphia, PA 19103

Ellen M. Saideman, Esq.
Selene Almazan-Altobelli
7 Henry Drive
Barrington, RI 02806
      Counsel for Amici Curiae Council of Parent Attorneys
      and Advocates, Education Law Center, New Jersey
      Special Education Practitioners, and National Center
      for Learning Disabilities in Support of Appellants

Robert M. Abrahams, Esq.
Schulte Roth & Zabel
919 Third Avenue
New York, NY 10022




                            2
Eric A. Bensky, Esq.
Schulte Roth & Zabel
1152 15th Street, NW
Suite 850
Washington, DC 20005
       Counsel for Amici Curiae Former Officials of the
       Department of Education, National Center for Youth
       Law, Judge David L. Bazelon Center for Mental Health
       Law, and Disability Rights Network of Pennsylvania in
       Support of Appellants

Karl A. Romberger, Jr., Esq. [ARGUED]
Sweet Stevens Katz & Williams
331 East Butler Avenue
P.O. Box 5069
New Britain, PA 18901
      Counsel for Appellee

Mark G. Morford, Esq.
Kevin M. McKenna, Esq.
Nicole D. Snyder, Esq.
Sarah B. Dragotta, Esq.
Latsha Davis & McKenna
350 Eagleview Boulevard
Suite 100
Exton, PA 19341
       Counsel for Amici Curiae 21st Century Cyber Charter
       School, Agora Cyber Charter School, Arts Academy
       Charter School, Chester Community Charter School,
       Collegium Charter School, New Foundations Charter
       School, PA Distance Learning Charter School, Penn-
       sylvania Leadership Charter School, and Pennsylvania
       Virtual Charter School in Support of Appellee




                             3
Craig D. Ginsburg, Esq.
Anne E. Hendricks, Esq.
Levin Legal Group
1800 Byberry Road
1301 Masons Mill Business Park
Huntingdon Valley, PA 19006
      Counsel for Amici Curiae Pennsylvania School Boards
      Association in Support of Appellee
                     _______________

                OPINION OF THE COURT
                    _______________

BIBAS, Circuit Judge.
    When schools use their expertise to address each child’s
distinct educational needs, we must give their judgments ap-
propriate deference. Endrew F. ex rel. Joseph F. v. Douglas
Cty. Sch. Dist. RE-1, 

, 1001-02 (2017). The In-
dividuals with Disabilities Education Act (IDEA) “requires an
educational program reasonably calculated to enable a child to
make progress appropriate in light of the child’s circum-
stances.” 

But we may not “substitute [our] own
notions of sound educational policy for those of the school au-
thorities which [we] review.” 

marks
omitted). Our precedents already accord with the Supreme
Court’s guidance in Endrew F., so we continue to apply them.
Under both Endrew F. and our precedents, Downingtown Area
School District followed the law in educating K.D. So we will
affirm.




                              4
                       I. BACKGROUND
   A. Facts
    1. Kindergarten and testing. K.D. attended public school
in the Downingtown Area School District from preschool
through the first semester of third grade. Halfway through kin-
dergarten, Downingtown assigned an Instructional Support
Team to monitor K.D.’s educational progress and give her ex-
tra support.
    After kindergarten, over the summer of 2012, K.D., her par-
ents, and her teachers completed a battery of tests. The psy-
chologist found that K.D. had a low-average IQ (87) and At-
tention Deficit Hyperactivity Disorder (ADHD). K.D. scored
below average in early reading skills, basic reading, total read-
ing, writing, and math, and average in oral language. She could
not read any common grade-level sight words nor the oral-
reading passages. In writing letters of the alphabet, she scored
in the first percentile. She scored much lower than average on
executive function, and struggled with impulsivity and organi-
zation.
    2. The first IEP. After completing these tests, Downing-
town offered K.D. an individualized education program (IEP)
in 2012, at the start of first grade. It set measurable goals for
letter naming, letter sounds, writing, rhyming, reading compre-
hension, math, and on-task behavior. The program’s specially
designed instructions provided for audiobooks, extra time for
tests and quizzes, a quiet place to take tests, and using visual




                               5
images and thinking aloud to promote recall of text. It also pro-
vided for three hours of learning-support instruction every
school day.
    3. First grade. K.D. started first grade. She spent part of
her time with the regular teacher and part with her special ed-
ucation teacher, Ms. Smith. Ms. Smith was unhappy with
K.D.’s progress in naming and sounding out letters, so she
changed K.D.’s homework and sent home a packet of stories
to help her improve. Because K.D.’s visual and motor skills
were lagging, Downingtown asked for an occupational-therapy
screening. And to keep K.D. from regressing over the summer,
the school changed the first IEP, arranging for three hours of
academic support, three days per week, during July.
   4. The second IEP. The summer before second grade, in
2013, Downingtown developed K.D.’s second IEP. It in-
creased her baselines for letter naming, letter sounds, reading
comprehension, writing, and math calculation. Her goals for
writing letters, rhyming, math facts, and on-task behavior re-
mained unchanged. Downingtown added “an evidence based
multi sensory reading and writing program” for two and a half
hours. JA 98. It retained her supplemental learning support and
extended-school-year services.
    5. Summer before second grade. K.D.’s parents were dis-
satisfied with K.D.’s summer schooling. They asked about test-
ing K.D. for dyslexia and dysgraphia, and about the Wilson
reading program for struggling readers. Ms. Smith replied that
school psychologists do not diagnose those conditions, but of-
fered to put them in touch with the school psychologist any-




                               6
way. She also said that Downingtown did not (yet) offer Wil-
son before middle school, but that K.D. would receive a similar
program geared toward elementary-school students.
    6. Second grade and updating the second IEP. Just as K.D.
started second grade, Downingtown switched to the Wilson
program for kindergarteners through third graders. K.D. mas-
tered 4 of 11 units in Wilson’s Level 1 by the end of second
grade. Downingtown also updated K.D.’s second IEP to reflect
the results of her occupational-therapy evaluation.
    7. The third IEP. At the end of second grade, in 2014,
Downingtown developed K.D.’s third IEP, for third grade. Re-
flecting K.D.’s progress, it increased her goals or baselines for
letter naming, reading, writing, comprehension, and on-task
behavior. And it kept her occupational-therapy goals and spe-
cially designed instruction.
    K.D.’s parents were dissatisfied with the new IEP, so they
met with school officials to discuss it. They did not reject it
after the meeting, so the IEP took effect. They also hired Ms.
Smith to tutor K.D. over the summer, while K.D. continued in
the school’s extended-school-year program.
    8. Dr. Kelly’s independent evaluation. In July 2014, K.D.’s
parents hired Dr. Karen Kelly to do a neuropsychological eval-
uation. Dr. Kelly diagnosed K.D. with dyslexia, ADHD,
“mathematics disorder, . . . organizational deficits, memory im-
pairment, [and] executive function[ ] impairments.” JA 192.
She also found that K.D. was reading below first-grade level.
   Beyond diagnosing K.D., Dr. Kelly criticized Downing-
town’s programming. She stated that K.D.’s poor achievement




                               7
showed that K.D. could not benefit from the school’s program,
evidencing the school’s “global disregard for this level of im-
pairment.” JA 191. K.D.’s parents did not immediately notify
Downingtown of the evaluation.
    9. Third grade and updating the third IEP. To prepare for
third grade, Downingtown tested K.D. again. She had ad-
vanced in all aspects of reading and writing. It also tested her
vision and found that she qualified for vision services. Two
months after the fact, K.D.’s parents told Downingtown that
Dr. Kelly had evaluated K.D. and that they had hired an edu-
cational advocate.
    Downingtown met with K.D.’s parents to discuss the up-
coming school year. It then performed more evaluations, added
vision services, and offered a one-on-one aide. K.D.’s parents
rejected the aide, for fear that it would make K.D. stand out.
The latest IQ test showed that K.D.’s IQ had risen into the av-
erage range.
    Downingtown presented K.D.’s parents with the IEP as
modified. They checked both the boxes for approving and for
disapproving the IEP. They did not explain which parts they
disliked, but expressed both hope for progress and concern
about how appropriate her programming was.
   10. The fourth IEP and withdrawal. In the middle of third
grade, Downingtown’s team met again. Based on their own and
Dr. Kelly’s evaluations, as well as K.D.’s progress, Downing-
town increased her goals for writing and on-task behavior. It
added new goals for math, reading fluency, and reading com-
prehension. It added an hour of direct math instruction, forty-




                               8
five minutes of direct writing instruction, and fifty-five
minutes of “multisensory reading instruction” per day, all in
“evidence based” programs. JA 104. Downingtown also took
Dr. Kelly’s advice to replace Wilson with “SRA/Corrective
Reading and FastForward,” two other “research-based pro-
grams that provide phonics and reading comprehension in-
struction.” 

2014, midway through third grade, Downing-
town offered K.D.’s parents the new program. But they re-
jected it, withdrew K.D., and placed her in private school.
   B. Procedural History
    1. The administrative hearing. K.D.’s parents filed a com-
plaint with Pennsylvania’s Office of Dispute Resolution, seek-
ing reimbursement for private-school tuition. They argued that
Downingtown had denied K.D. a free appropriate public edu-
cation under the IDEA. They also alleged that, by not ade-
quately addressing K.D.’s needs, Downingtown had discrimi-
nated against K.D. based on her disability, in violation of the
Rehabilitation Act and the Americans with Disabilities Act
(ADA).
   The administrative officer found that the IEPs were ade-
quate and that Downingtown had provided K.D. with a free ap-
propriate public education. Because the officer decided the
case before Endrew F., he applied the Third Circuit’s mean-
ingful-benefit test. See Ridley Sch. Dist. v. M.R., 

,
268 (3d Cir. 2012) (explaining meaningful-benefit test). He
found that Downingtown remained aware of K.D.’s slow pro-
gress and kept trying to improve her programming in response




                               9
to K.D.’s performance and Dr. Kelly’s report. And while it re-
peated some goals, Downingtown “did not simply hand out the
same IEP year after year,” but repeated foundational skills
where needed to address “the challenge of teaching even fun-
damental skills to [K.D.].” JA 115. Downingtown had ex-
plained clearly why it chose the programs it did and how they
addressed K.D.’s needs.
    The officer disagreed with Dr. Kelly’s criticisms of Down-
ingtown. He found that Downingtown had acted reasonably in
giving the Wilson program time to work and in pursuing occu-
pational therapy and vision services. He held that all the IEPs
were “reasonably calculated to provide a meaningful educa-
tional benefit to [K.D.] when they were issued.” JA 116. So he
rejected the claims based on the IDEA. The ADA and Rehabil-
itation Act claims rested on the same theory as the IDEA claim,
so the officer rejected those claims as well.
    2. The District Court. K.D.’s parents then filed a complaint
in District Court, bringing the same three claims. K.D. v.
Downingtown Area Sch. Dist., No. 16-0165, 

, at *3 (E.D. Pa. Aug. 29, 2016). They moved to sup-
plement the administrative record with new evidence, includ-
ing AIMSweb reports comparing K.D. with her peers, Down-
ingtown’s interrogatory answers, and a Wilson program
teacher’s manual. 

    The District Court denied the motion. It reasoned that the
ADA and Rehabilitation Act claims rested on the same grounds
as their IDEA claim, that the new evidence was only minimally
relevant, and that K.D.’s parents should have introduced the
evidence before the hearing officer. 

cross-motions for judgment on the administrative rec-
ord, the District Court granted judgment for Downingtown.
K.D. v. Downingtown Area Sch. Dist., No. 16-0165, 

, at *13 (E.D. Pa. Sept. 1, 2017). Because Endrew F.
came down before it decided the case, the District Court first
held that Endrew F. “simply confirm[ed] the standard that has
been used in the Third Circuit for years.” 

n.7. It went
on to apply Endrew F. alongside our precedents, holding that
“the IEPs contained meaningful changes” and that “in light of
her circumstances, K.D. made appropriate and meaningful pro-
gress.” 

(capitalization removed).
   The District Court had jurisdiction under 28 U.S.C. §§ 1331
and 1343. We have jurisdiction under 28 U.S.C. § 1291.
                        II. DISCUSSION
   Downingtown complied with the IDEA. It gave K.D. a free
appropriate public education by developing tailored IEPs. And
though K.D.’s parents claim disability discrimination under the
ADA and Rehabilitation Act, their theory is indistinguishable
from their IDEA claim. So all three claims fail together.
   A. Downingtown complied with the IDEA
   First, K.D.’s IDEA claim fails. K.D.’s parents argue that
the Supreme Court, in Endrew F., implicitly overruled the
Third Circuit’s meaningful-benefit test. And they argue that
under Endrew F., Downingtown did not do enough with its
IEPs to provide a free and appropriate public education. But
Endrew F. did not overrule our precedent. And their claim fails
under Supreme Court and Third Circuit decisions.




                               11
    Whether Endrew F. implicitly overruled Third Circuit prec-
edent is a question of law, which we review de novo. 

. Whether an IEP is appropriate is a question of
fact, which we review for clear error. 

F. did not overrule Third Circuit precedent. In
Endrew F., the Tenth Circuit had read the IDEA to require only
that students make “merely . . . more than de minimis” progress.
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 

, 1338 (10th Cir. 2015) (internal quotation marks
omitted). The Supreme Court rejected the Tenth Circuit’s
standard, not ours. 

. On the contrary,
Endrew F.’s language parallels that of our precedents.
    The Court held that the IDEA “requires an educational pro-
gram reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” 

That language mirrors our longstanding formulation: the edu-
cational program “must be reasonably calculated to enable the
child to receive meaningful educational benefits in light of the
student’s intellectual potential and individual abilities.” 

(internal quotation marks and citation omitted).
Our test requires an educational program “likely to produce
progress, not regression or trivial educational advancement.”

marks omitted).
    Like our precedents, Endrew F. treated a child’s intellectual
abilities and potential as among the most important circum-
stances to 

. And we have contrasted
our standard with that applied by the Tenth Circuit: “the provi-
sion of merely more than a trivial educational benefit does not
meet the meaningful benefit requirement . . . .” L.E. v. Ramsey




                                12
Bd. of Educ., 

, 390 (3d Cir. 2006) (internal quota-
tion marks omitted); see also T.R. v. Kingwood Twp. Bd. of
Educ., 

, 577 (3d Cir. 2000) (“[A] satisfactory IEP
must provide significant learning and confer meaningful bene-
fit.” (internal quotation marks omitted)). So we see no conflict
between Endrew F. and our precedent.
    2. K.D.’s IEPs were reasonably calculated to enable her to
make appropriate progress. The IDEA required Downingtown
to work with K.D.’s parents to develop IEPs that “aim[ed] to
enable [K.D.] to make progress.” Endrew 

.
Those aims must be “reasonably calculated” and formulated
“in light of the child’s circumstances.” 

so.
    Downingtown had significant foundational work to do with
K.D. She had ADHD, vision problems, and poor motor skills.
She was quite challenged in perceptual reasoning and pro-
cessing speed. Her reading, writing, and math skills were well
below average. And she suffered from dyslexia and mathemat-
ics disorder. Given her impairments and circumstances, the
District Court did not clearly err in finding that “this kind of
fragmented progress could reasonably be expected.” 

, at *12.
       i. IEPs must be reasonable, not ideal. Though her par-
ents argue otherwise, K.D.’s slow progress does not prove that
her IEPs were deficient. “Any review of an IEP must appreci-
ate that the question is whether the IEP is reasonable, not
whether the court regards it as ideal.” Endrew 

(emphasis in original). “The IEP must aim to enable the
child to make progress.” 

We may not




                              13
rely on hindsight to second-guess an educational program that
was reasonable at the time.
    While courts can expect fully integrated students to ad-
vance with their grades, they cannot necessarily expect the
same of less-integrated students. As Endrew F. explained, “for
a child fully integrated in the regular classroom, an IEP typi-
cally should . . . be reasonably calculated to enable the child to
achieve passing marks and advance from grade to 

(internal quotation marks omitted). But the Dis-
trict Court found that K.D. was not fully integrated into the
regular classroom. 

, at *2-3, *12. Instead,
she received supplemental learning support for much of the
day. So there is no reason to presume that she should advance
at the same pace as her grade-level peers.
    Still, K.D.’s parents seek to extend the presumption beyond
fully integrated students. They point to a regulatory guidance
letter from the Department of Education’s Office of Special
Education and Rehabilitative Services. It states: “Research has
demonstrated that children with disabilities who struggle in
reading and mathematics can successfully learn grade-level
content and make significant academic progress when appro-
priate instruction, services, and supports are provided.” U.S.
Dep’t of Educ., Dear Colleague Ltr., at 1 (Nov. 16, 2015). It
also instructs that “the annual goals . . . should be sufficiently
ambitious to help close the gap” between the child’s current
and grade-level achievements. 

    K.D.’s parents overread the letter. The letter sets forth re-
search and aspirational goals, which may be helpful for some
children. But while it aspires to “close the gap,” it does not




                               14
specifically require grade-level goals for children who are not
and cannot be fully integrated into regular classrooms. It never
mentions a presumption. Nor does it suggest that all (or even
most) disabled children can advance at a grade-level pace.
    Even if the letter could be read as relevant, it would neither
bind nor persuade us. Guidance letters do not enjoy Chevron
deference. Christensen v. Harris County, 

, 586-
87 (2000) (discussing Chevron U.S.A. Inc. v. NRDC, 

(1984)). And this guidance letter does not address the
IDEA’s language, let alone parse it. The IDEA contemplates
educational programs tailored to “how the child’s disability af-
fects the child’s involvement and progress in the general edu-
cation curriculum.” 20 U.S.C. § 1414(d)(1)(A)(i)(I)(aa). Rather
than presuming grade-level advancement, the Act requires re-
visions to education programs “as appropriate to address any
lack of expected progress toward the annual goals and in the
general education curriculum, where appropriate.” 

(ii)(I) (emphases added).
    Because the letter neither “thorough[ly] . . . consider[s]” nor
“valid[ly] . . . reason[s]” about the meaning of the statute, we
find it unpersuasive on this issue. Skidmore v. Swift & Co., 

, 140 (1944).
       ii. Downingtown reviewed and revised the IEPs to keep
them appropriately rigorous. K.D.’s slow progress does not
prove that her IEPs were not challenging enough or updated
enough. The hearing officer found that Downingtown did not
simply repeat educational programs. The District Court agreed.
The Court also rejected Dr. Kelly’s assertion that K.D. was not
making meaningful progress. 

, at *9-12. We




                                15
defer to both sets of findings on appeal. See S.H. v. State-Op-
erated Sch. Dist. of the City of Newark, 

, 270 (3d
Cir. 2003) (treating the hearing officer’s factual findings as
“prima facie correct”); 

(reviewing the
District Court’s findings for clear error).
   Both the hearing officer and the District Court found that
Downingtown was willing and able to review and revise K.D.’s
IEPs throughout her education. After K.D.’s parents notified
Downingtown of Dr. Kelly’s evaluation and recommendations,
Downingtown responded within a week. It scheduled a meet-
ing, sought more assessments, and offered a one-on-one aide.
And it developed a fourth IEP, which incorporated many of Dr.
Kelly’s recommendations, including adopting a new reading
program.
    Finally, K.D.’s parents advance arguments not made below.
They claim that Downingtown did not offer K.D. an IEP for
2015. And, at oral argument, they asserted that K.D.’s IEPs
were not intense enough and did not strike the right balance
between regular and special education. But “[a]bsent excep-
tional circumstances, this Court will not consider issues raised
for the first time on appeal.” Del. Nation v. Pennsylvania, 

, 416 (3d Cir. 2006). We see no exceptional reason to
excuse their failure. And in any event, Downingtown offered
K.D. a fourth IEP in December 2014, which would have run
for almost all of 2015.
   In sum, the District Court did not err in finding that Down-
ingtown set appropriately challenging goals for K.D.




                              16
   B. No basis to supplement the record
    Nor did the District Court abuse its discretion in rejecting
irrelevant and cumulative evidence. D.K. v. Abington Sch.
Dist., 

, 253-54 (3d Cir. 2012). Though the AIMS-
web evidence charted K.D.’s progress on school-district
benchmarks, the administrative record already contained am-
ple evidence of how K.D. compared to her peers. Downing-
town’s interrogatory answers add no facts to what is elsewhere
in the record. And K.D.’s parents should have introduced the
Wilson teacher’s manual earlier, before the hearing officer.
They gave no good reason for not doing so.
   C. No disability discrimination under the ADA or Re-
habilitation Act
    K.D.’s parents also assert disability discrimination under
the Rehabilitation Act and ADA. They allege that Downing-
town did not use “appropriate research-based interventions” to
“teach a student like K.D. to read.” Appellants’ Br. 45. Though
they deny it, their allegations simply repackage those underly-
ing the IDEA claim. So the District Court properly rejected
these claims when it rejected the IDEA claim.
                           *****
    K.D.’s parents understandably want only the best opportu-
nities for their daughter. But Downingtown followed the law
by individualizing her education programs to help her make
progress appropriate to her circumstances. So we will affirm
the District Court’s judgment in favor of Downingtown.




                              17