D.C. v. Klein Independent School District

UNITED STATES DISTRICT COURT May 30, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

D.C., ET AL., §

§

Plaintiffs. §

§

VS. § CIVIL ACTION NO. 4:19–CV–00021

§

KLEIN INDEPENDENT SCHOOL §

DISTRICT, §

§

Defendant. §

ORDER ADOPTING MAGISTRATE JUDGE’S

MEMORANDUM AND RECOMMENDATION WITH MODIFICATIONS

On January 14, 2020, this case was referred to United States Magistrate Judge

Andrew M. Edison pursuant to 28 U.S.C. § 636(b)(1)(B). See Dkt. 35. On March 16,

2020, Judge Edison filed a Memorandum and Recommendation (Dkt. 44) recommending

that Plaintiffs’ Motion for Judgment Affirming the Hearing Officer and for Attorney’s Fees

(Dkt. 16) be GRANTED as modified and Klein Independent School District’s (“KISD”)

Motion for Summary Judgment (Dkt. 17) be DENIED.

On March 30, 2020, Plaintiffs and KISD each filed Objections. See Dkts. 45, 46.

Plaintiffs and KISD then each responded to the other side’s Objections. See Dkts. 47, 48.

KISD eventually filed a reply in support of its Objections. See Dkt. 49. Plaintiffs have

filed a Motion to Strike or Disregard Doc. 49 (KISD’s reply). See Dkt. 50. As an initial

matter, the Court denies Plaintiffs’ Motion to Strike or Disregard Doc. 49 (Dkt. 50).

In accordance with 28 U.S.C. § 636(b)(1)(C), this Court is required to “make a de

novo determination of those portions of the [magistrate judge’s] report or specified

proposed findings or recommendations to which objection [has been] made.” After

conducting this de novo review, the Court may “accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge.” Id.; see also FED.

R. CIV. P. 72(b)(3).

The Court has carefully considered the Memorandum and Recommendation, the

Objections, the responses and replies to those Objections, the pleadings, the briefing and

arguments of the parties, and the entire record.

In its Objections, KISD complains that Judge Edison incorrectly applied a clear

error standard of review of the hearing officer’s findings of fact. See Dkt. 44 at 5 (“I must

conduct a virtually de novo review in which I review legal questions de novo and factual

questions for clear error.”) (quotation omitted). KISD argues that Judge Edison should

have reviewed the hearing officer’s determination virtually de novo, ultimately reaching

an independent decision based on a preponderance of the evidence. The Court agrees that

Judge Edison incorrectly applied the clear error standard in several places. The Court also

concurs with KISD concerning the general standard of review that should apply here. That

being said, the Court believes that had Judge Edison applied the virtually de novo standard

of review, his resolution of factual questions would not have been any different and he

would have reached the same ultimate conclusions. Importantly, after the Court’s de novo

review of the record, it is the undersigned’s independent decision, based on the

preponderance of the evidence, that Plaintiffs’ Motion for Judgment Affirming the Hearing

Officer and for Attorney’s Fees (Dkt. 16) should be granted and Klein Independent School

District’s (“KISD”) Motion for Summary Judgment (Dkt. 17) should be denied. Because

the Court finds the bulk of Judge Edison’s Memorandum and Recommendation to be well-

reasoned and legally sound, the Court will adopt Judge Edison’s Memorandum and

Recommendation as modified below. To be abundantly clear, my holding in this case is

reflected in this document (Dkt. 52) and no other document.

The Court, therefore, ACCEPTS Judge Edison’s Memorandum and

Recommendation as modified below and ADOPTS it as the opinion of the Court.

Accordingly, it is hereby ORDERED and ADJUDGED that:

(1) Judge Edison’s Memorandum and Recommendation is APPROVED and

ADOPTED as modified below as the holding of the Court;

(2) Plaintiffs’ Motion for Judgment Affirming the Hearing Officer and for

Attorney’s Fees (Dkt. 16) is GRANTED as discussed below; and

(3) KISD’s Motion for Summary Judgment (Dkt. 17) is DENIED.

It is so ORDERED.

SIGNED and ENTERED this 29th day of May, 2020.

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

D.C., ET AL., §

§

Plaintiffs. §

§

VS. § CIVIL ACTION NO. 4:19–CV–00021

§

KLEIN INDEPENDENT SCHOOL §

DISTRICT, §

§

Defendant. §

MEMORANDUM AND RECOMMENDATION

Plaintiffs J.C. and K.C., as parents, guardians and next friends of D.C., a minor child

(collectively, “Plaintiffs”), filed this lawsuit seeking to require Defendant Klein

Independent School District (“KISD”) to pay attorney’s fees and reimburse certain costs

after Plaintiffs received a favorable decision in an administrative hearing pursuant to the

Individuals with Disabilities Education Act (“IDEA”). Before me are competing motions:

Plaintiffs’ Motion for Judgment Affirming the Hearing Officer and for Attorney’s Fees

(Dkt. 16); and KISD’s Motion for Summary Judgment. Having considered the motions,

responsive briefing, record, and applicable law, I RECOMMEND that Plaintiffs’ Motion

for Judgment Affirming the Hearing Officer and for Attorney’s Fees (Dkt. 16) be

GRANTED with the modifications discussed below and KISD’s Motion for Summary

Judgment (Dkt. 17) be DENIED.

BACKGROUND

When this lawsuit was filed, D.C. was an 11-year-old sixth grader enrolled at Hofius

Intermediate School in KISD. To put the facts into proper perspective, I provide a brief

history of D.C.’s elementary school education.

D.C. entered first grade at KISD’s Metzler Elementary in the fall of 2013. D.C.’s

first grade teacher placed him in the Tier 2 Response to Intervention (“RTI”) program to

work on his reading fluency. Tier 2 RTI consisted of the first-grade teacher working with

a group of four or five students for 45 minutes per day outside of classroom instruction

time.

In second grade, D.C. continued to receive Tier 2 RTI services. His grades in

reading, writing, and math were all at least 80 in each grading period throughout the year.

That being said, D.C. performed a full grade level below his peers on the KISD reading

assessment.

D.C. remained in Tier 2 of the RTI program in third grade. Although he passed the

State of Texas Assessment of Academic Readiness Exam (“STAAR”) exam in all areas,

he struggled mightily with reading comprehension. In the spring of his third-grade year,

D.C. was placed in a Section 504 plan1 for reading difficulty. The Section 504 plan

documented that D.C. had a reading fluency level of kindergarten or below, but it did not

include any direct instruction for D.C. in reading fluency or comprehension. In the fall of

1 A Section 504 plan is a plan developed to ensure that a child who has a disability and is attending

an elementary or secondary educational institution receives accommodations that will facilitate his

academic success and access to a learning environment. See 29 U.S.C. § 794.

D.C.’s third-grade year, his mother requested a Full Individual Evaluation (“FIE”) to

determine if D.C. qualified for special education and related services as a student with a

specific learning disability.

In fourth grade, the 2016–2017 school year, D.C. encountered additional problems

with fluency and reading comprehension. He did not meet any reading, writing, or science

benchmark assessments on his standardized tests. His reading ability was so poor that he

failed the STAAR exam and scored in the bottom two percentile on the reading portion of

the Measure of Academic Proficiency exam. In contrast to his test scores, D.C. performed

relatively well in his grade-level curriculum with all passing grades—79 in reading and all

Bs in the remaining courses.

D.C. continued to struggle in the fifth grade, the 2017–2018 school year. Even so,

KISD did not conduct a FIE until January 2018, the middle of D.C.’s fifth-grade year, and

only after his parents requested an evaluation. The evaluation indicated that D.C.’s reading

comprehension score placed him at just the eighth percentile level. D.C. was found eligible

for special education as suffering from a specific learning disability in reading

comprehension, with specific weaknesses in comprehension/knowledge, fluid reasoning,

long term memory, and processing speed.

After several lengthy hearings with D.C.’s family, KISD implemented an

Individualized Education Program (“IEP”) on March 9, 2018. As part of the IEP, D.C.

received 3.75 hours of “co-teach” instruction and 30 minutes of dyslexia services per week.

THE HEARING OFFICER’S DECISION

Dissatisfied with the IEP put in place by KISD, Plaintiffs filed a request for an

impartial due process hearing with the Texas Education Agency. After the four-day

evidentiary hearing that followed, the special education hearing officer made a number of

findings, including the following:

• D.C. was not dyslexic and was not in need of dyslexia related services.

• KISD’s attempt to collaborate with the family in providing dyslexia

services, without properly addressing D.C.’s reading comprehension

disability, denied D.C. a Free Appropriate Public Education

(“FAPE”).

• KISD failed to timely find and provide D.C. with the special education

services he needed to have a beneficial educational opportunity.

• The IEP did not address D.C.’s reading comprehension difficulties.

• KISD had reason to suspect D.C. had a learning disability by April

27, 2017, the spring of his fourth-grade year.

• D.C.’s IEP was not sufficiently individualized or effective.

As a consequence of the delay in evaluation and the inappropriate IEP, the hearing

officer ordered KISD to convene to: (1) specifically identify the disability in reading

comprehension; (2) provide for 45 minutes per day, four days per week, of reading

instruction in a small group with a reading program designed to address reading

comprehension deficits; and (3) schedule 108 hours of compensatory educational services

in a one-on-one setting. The hearing officer also ordered the district to “modify [D.C.’s]

IEP in accordance with the District’s FIE to indicate [D.C.] is eligible for special education

as a student with a Specific Learning Disability in reading comprehension, with specific

weaknesses in comprehension/knowledge, fluid reasoning, long term memory, and

processing speed.” Dkt. 1-1 at 39.

This lawsuit followed, with Plaintiffs asking the Court to order KISD to pay

attorney’s fees and reimburse certain costs as a result of Plaintiffs prevailing in the

administrative hearing. KISD filed a counterclaim, contending that D.C. is not a prevailing

party because the hearing officer’s decision is erroneous and should be reversed as to the

finding that the IEP was inappropriate and that D.C. was entitled to any compensatory

services.

STANDARD OF REVIEW

Under the IDEA, “[a]ny party aggrieved by the findings and decision” of an

administrative hearing officer may bring suit in district court. 20 U.S.C. § 1415(i)(2)(A).

When a court reviews a hearing officer’s decision under the IDEA, “the court must receive

the record of the administrative proceedings and is then required to take additional evidence

at the request of any party.” Cypress-Faribanks Indep. Sch. Dist. v. Michael F., 118 F.3d

245, 252 (5th Cir. 1997). Although due weight is to be given, the hearing officer’s findings

are not conclusive. See Bd. of Educ. Of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,

458 U.S. 176, 206 (1982). “The district court’s review of the [hearing officer’s]

determination is virtually de novo. That is, although the district court is to give due weight

to the hearing officer’s findings, the court must ultimately reach an independent decision

based on a preponderance of the evidence.” Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d

205, 213 (5th Cir. 2019) (internal quotation marks, brackets, and citation omitted). See

also R. S. v. Highland Park Indep. Sch. Dist., 951 F.3d. 319, 328 (5th Cir. 2020) (“Although

the district court is required to give due weight to the hearing officer’s findings, the

[district] court ultimately must arrive at its own independent decision based on the

preponderance of the evidence.”). This standard, however, “is by no means an invitation

to the courts to substitute their own notions of sound educational policy for those of the

school authorities which they review.” Id. (quotation marks and citation omitted).

Although presented as summary judgment motions, the motions filed by Plaintiffs

and KISD are “not directed to discerning whether there are disputed issues of fact, but

rather, whether the administrative record, together with any additional evidence,

establishes that there has been compliance with IDEA’s processes and that the child’s

educational needs have been appropriately addressed.” E. R. v. Spring Branch Indep. Sch.

Dist., 909 F.3d 754, 762 (5th Cir. 2018) (quoting Seth B. v. Orleans Parish Sch. Bd., 810

F.3d 961, 966-67 (5th Cir. 2016)). See also C. G. v. Waller Indep. Sch. Dist., No. 4:15-

CV-00123, 2016 WL 3144161, at *5 (S.D. Tex. June 6, 2016) (“If no party requests

additional evidence to be heard by the district court, a motion for summary judgement [sic]

is simply a procedural device for asking the Court to decide the case on the basis of the

administrative record.”) (internal quotation marks and citation omitted).

KISD carries the burden of proof as the party appealing the hearing officer’s

decision. See Seth B., 810 F.3d at 972 (The district court “did not err in allocating

appellants the burden of persuasion.”).

DISCUSSION

The primary purpose of the IDEA is to ensure that children with disabilities receive

a FAPE in the least restrictive environment possible. See White v. Ascension Par. Sch. Bd.,

343 F.3d 373, 378 (5th Cir. 2003). A FAPE consists of “personalized instruction with

sufficient support services to permit the child to benefit educationally from that

instruction.” Rowley, 458 U.S. at 203. To that end, school districts must develop an IEP

for each child with a disability. See 20 U.S.C. §1414(d). The IEP is a written statement

that specifies the special education and related services the child needs to receive a FAPE

and outlines how those services will be delivered to the child. See Lisa M., 924 F.3d at

209. The IEP is the primary vehicle required to affect the congressional goals under the

IDEA. See Honig v. Doe, 484 U.S. 305, 311 (1987).

This case requires me to address two related, but separate questions: First, did KISD

satisfy its child find duty? Second, was the IEP implemented by KISD reasonably

calculated to provide meaningful educational benefits under the IDEA? I will address each

issue separately.

A. KISD VIOLATED ITS CHILD FIND DUTY

The IDEA’s child find requirement obligates public school districts to identify,

locate, and evaluate students with suspected disabilities “within a reasonable time after the

school district is on notice of facts or behavior likely to indicate a disability.” Dallas Indep.

Sch. Dist. v. Woody, 865 F.3d 303, 320 (5th Cir. 2017). “An unreasonable delay in

complying with this duty may constitute a procedural violation of the IDEA.” Krawietz v.

Galveston Indep. Sch. Dist., 900 F.3d 673, 676 (5th Cir. 2018) (internal quotation marks

and citation omitted). “A finding of a child find violation turns on three inquiries: (1) the

date the child find requirement triggered due to notice of a likely disability; (2) the date the

child find duty was ultimately satisfied; and (3) the reasonableness of the delay between

these two dates.” Spring Branch Indep. Sch. Dist. v. O.W., 938 F.3d 695, 706 (5th Cir.

2019).

1. The Date the Child Find Duty was Triggered: April 27, 2017

The relevant window for purposes of assessing any alleged delay in a school

district’s compliance with its child find obligation begins when a school district has notice

of a child’s disability and potential need for special education services. See Woody, 865

F.3d at 320. Here, the hearing officer found that KISD had notice that D.C. needed special

education and related services by, at the latest, April 27, 2017.2 The hearing officer

provided the following reasoning as the basis for his finding:

[D.C.] had been receiving Section 504 services since he was in third grade,

so the District was aware [D.C] had a disability. . . . [D.C.] began the 2016–

17 school year on Reading Level O and did not improve his reading during

the course of the year. By the middle of the year, his MAP score placed him

in the second percentile in reading for his age group, which was consistent

with his classroom performance. [D.C.] failed his Reading STAAR test in

the spring of 2017 and performed at a low level on the District-wide

assessments throughout the year.

Dkt. 1-1 at 26.

KISD argues that it did not suspect D.C. needed special education services by April

27, 2017 because the results of the STAAR test were actually not released until June 2017

and D.C.’s fourth grade reading fluency examinations show steady improvement

throughout the year. I am not persuaded.

2 The hearing officer did not choose an earlier date because April 27, 2017 was one year prior to

the parents’ request for a due process hearing, the earliest possible date from which D.C. could

recover under the applicable statute of limitations. See R. S., 951 F.3d. at 328–29.

After carefully reviewing the voluminous administrative record, and applying the

virtually de novo standard of review, I find that KISD had notice of D.C.’s suspected

disability by April 27, 2017. It is true that D.C. enjoyed a slight reading fluency

improvement in fourth grade, and I fully appreciate that KISD did not know about the

results of the STAAR test in April 2017. However, the hearing officer “did not rely on the

[STAAR results] alone; [he] relied on a combination of factors.” Krawietz, 900 F.3d at

677. There is considerable evidence in the record to support the hearing officer’s finding

that KISD should have suspected D.C.’s need for special education services by April 27,

2017, at latest. See AR3 399, 402 (In D.C.’s fourth-grade Section 504 plan, effective March

9, 2017, D.C. was found to have a mental impairment that substantially limited his ability

to read, concentrate, learn, and think, and the plan specifically noted that D.C. had

“secondary characteristics of dyslexia in reading comprehension and written expression.”);

AR 401 (“At the beginning of [fourth grade] he was reading at Level O, and remains at the

same level mid-year. . . . Both teachers have been providing oral administration to [D.C]

and shared that there is a significant discrepancy when he is given an assignment with oral

administration than without.”); AR 420 (In D.C.’s third-grade Section 504 plan, effective

March 22, 2016, D.C. was found to have a mental impairment that substantially limits his

ability to read, concentrate, learn, and think.); AR 422 (The Section 504 Student Review

3 The administrative record is 3,730 pages long and was provided to the Court on a zip drive. See

Dkts. 12, 41. The zip drive is held by the Clerk of the Court. For convenience sake, I will refer to

pages referenced in the administrative record as “AR pg. #.”

Committee found that “the student has evidence of reading difficulty.”); AR 412–417, 431–

434 (Samples of D.C.’s school assignments from fourth grade showed that D.C. was able

to score 72–100 percent when staff read assignments to him but only 30–50 percent when

he was relying on his own ability to read.); AR 2043 (By the middle of fourth grade, D.C.’s

standardized test score placed him in the bottom second percentile in reading for his age

group.); PE4 47, April 19, 2018 Audiotape at 6:00–6:30, 7:20–7:35, 8:45–9:15 (During the

IEP meeting on April 19, 2018, Special Education Director, Lauren Ivins-McFarland,

stated multiple times that KISD should have referred D.C. for a special education

evaluation by “mid-year fourth grade.”). The evidence shows that KISD had notice of facts

and behavior likely to indicate that D.C. had a reading disability by, at the latest, April 27,

2017.

KISD asserts that the trigger date did not begin until September 6, 2017, the day

that D.C.’s parents allegedly requested that D.C. undergo a disability evaluation. I do not

agree. A child’s right to a FAPE does not depend on the vigilance of the parents; child find

is the responsibility of the school district. See Krawietz, 900 F.3d at 677. KISD should

have proactively sought to evaluate D.C. for special education eligibility as soon as it was

on notice of a likely disability irrespective of whether the parents ever requested an

evaluation. Accordingly, I find that KISD had notice by April 27, 2017.

4 D.C. submitted various audio recordings from the IEP hearings along with the administrative

record. See Dkts. 12, 41. These recordings can be found on the same zip drive as the administrative

record in a folder titled “P. Ex. 47.” Because there are multiple recordings in the folder, I refer to

the specific segments of the recordings using the specific date and time segment of the particular

recording.

2. The Date the Child Find Duty was Satisfied: October 19, 2017

The date D.C.’s parents provided consent to allow a disability evaluation—October

19, 2017—is the end date of the reasonableness inquiry. See O.W., 938 F.3d at 706 (“[T]he

January 15, 2015, referral for evaluation represents the appropriate end date for the

reasonableness inquiry.”).

3. The Period of Delay Between April 27, 2017, and October 19, 2017, Was

Unreasonable

The ultimate question is whether the delay between April 27, 2017, and October 19,

2017, was reasonable. See id. The Fifth Circuit provides meaningful guidance on this

issue:

[T]he reasonableness of a delay is not defined by its length but by the steps

taken by the district during the relevant period. A delay is reasonable when,

throughout the period between notice and referral, a district takes proactive

steps to comply with its child find duty to identify, locate, and evaluate

students with disabilities. Conversely, a time period is unreasonable when

the district fails to take proactive steps throughout the period or ceases to take

such steps.

Id. at 707.

In this case, KISD has presented no evidence that it took any proactive steps to

comply with its child find duty from April 27, 2017, through September 2017, when KISD

responded to D.C.’s mother’s request for a meeting with school officials. KISD maintains

that it took reasonable, proactive steps by gathering, reviewing, and summarizing D.C.’s

academic performance data in September 2017 to determine whether a special education

referral was appropriate. In my view, the four-month delay between April 2017 and

September 2017 is completely unreasonable, especially when D.C.’s mother had requested

back in the fall of 2015 that KISD undertake a special education evaluation of D.C. See

Krawietz, 900 F.3d at 677 (holding that a four-month delay was unreasonable because the

school district “failed to take any appreciable steps toward complying with its Child Find

obligation.”). It is also disconcerting that, although D.C.’s parents requested a FIE in

September 2017, they had to follow-up several times on that request before KISD finally

decided to conduct a FIE. KISD did ultimately seek consent from D.C.’s parents on

October 19, 2017, the 30th school day following the parents’ request. This hardly

demonstrates proactive conduct on behalf of KISD, especially when state law provides that

KISD had 15 school days to provide the parents the opportunity to consent to an evaluation

or provide written notice of a refusal to evaluate. See 19 TEX. ADMIN. CODE § 89.1011(b).

At oral argument, KISD’s counsel argued that the school district should not be held

responsible for its failure to act during the summer months when school was out of session.

This argument is, in my view, a red herring. By April 27, 2017, KISD was on notice of

D.C.’s disability and potential need for special education services, yet the school district

did absolutely nothing proactive through the end of the school year. Given that this was

the first time D.C. would participate in a special education evaluation and his mother had

previously requested an evaluation, KISD could have—and should have—promptly taken

action. Instead, KISD did nothing of the sort. To the extent KISD claims that the response

to intervention strategies it utilized during D.C.’s elementary school education constitutes

proactive steps sufficient to satisfy its child find obligations, the Fifth Circuit has soundly

rejected that argument. See O.W., 938 F.3d at 707; Lisa M., 924 F.3d at 209 n.4.

KISD next argues that, even if it did violate its child find duty, the error was

harmless.5 I am not persuaded. A child experiences an “egregious loss of educational

opportunity” when the child “is erroneously denied eligibility for special education

services.” Michael P. v. Dept. of Educ., 656 F.3d 1057, 1068 (9th Cir. 2011). See also

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009) (“It would be particularly strange

for the [IDEA] to provide a remedy, as all agree it does, when a school district offers a

child inadequate special-education services but to leave parents without relief in the more

egregious situation in which the school district unreasonably denies a child access to such

services altogether.”). In this case, D.C. should have been referred for a disability

evaluation six months earlier. Had the disability evaluation been conducted in a timely

manner, D.C. would have received disability services at a much earlier date. Since the

entire purpose of the IEP is to enable the child to receive educational benefits as promptly

as possible, I find that the six-month delay here is significant and meaningful. The net

effect of KISD’s violation of its child find duty is that D.C. has been denied a FAPE.

***

In sum, I find that KISD failed to meet its child find obligations, resulting in the loss

of educational opportunity. Plaintiffs are, therefore, entitled to relief.

5 I find it ironic that KISD argues here that implementing the IEP in fourth grade rather than fifth

would not have made any difference when KISD also argues in the same motion that the IEP

implemented in fifth grade led to significant improvement in D.C.’s reading ability.

B. THE IEP DEVELOPED BY KISD WAS NOT REASONABLY CALCULATED TO

RESULT IN MEANINGFUL EDUCATIONAL BENEFITS

“To ensure that a child receives a FAPE, parents and school districts collaborate to

develop an [IEP] that is ‘reasonably calculated to enable the child to receive educational

benefits.’” See C. G., 2016 WL 3144161, at *5 (quoting R.H. v. Plano Indep. Sch. Dist.,

607 F.3d 1003, 1008 (5th Cir. 2010)). The IEP must be specifically designed to meet the

unique needs of a particular child with a particular disability at no cost to parents. See 20

U.S.C. § 1401(29); Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017).

An IEP “need not be the best possible one, nor one that will maximize the child’s

educational potential; rather, it need only be an education that is specifically designed to

meet the child’s unique needs, supported by services that will permit him ‘to benefit’ from

the instruction.” Michael F., 118 F.3d at 247–48 (quoting Rowley, 458 U.S. at 188–89).

For an IEP to be tailored to a child’s unique needs, it must be “reasonably calculated to

enable a child to make progress appropriate in light of the child’s circumstances.” Endrew

F., 137 S. Ct. at 999. “[T]he question is whether the IEP is reasonable, not whether the

court regards it as ideal.” Id.

To determine whether the IEP is reasonable, I must apply the four-factor test

established by the Fifth Circuit two decades ago in Michael F, 118 F.3d at 253.

Accordingly, to determine whether a child’s IEP is substantively compliant with the IDEA,

I must consider whether: “(1) the program is individualized on the basis of the student’s

assessment and performance; (2) the program constitutes the least restrictive environment;

(3) the services are provided in a coordinated and collaborative manner by the key

‘stakeholders’; and (4) positive academic and non-academic benefits are demonstrated.”

Id. These factors “serve as indicators of whether an IEP is reasonably calculated to provide

a meaningful educational benefit under the IDEA.” E. R., 909 F.3d at 765. I address each

factor below.

1. KISD Denied D.C. an Individualized IEP

The first Michael F. factor asks whether the school district designed an IEP that is

individualized based on the student’s assessment and performance to meet the child’s

unique needs. See Hous. Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347–48 (5th Cir.

2000); Michael F., 118 F.3d at 253. An IEP need not provide every conceivable support

or service necessary to assist the child to reach his potential. See Rowley, 458 U.S. at 199.

Rather, the focus is on “the whole educational experience, and its adaptation to confer

‘benefits’ on the child.” KISD Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 397 (5th Cir.

2012).

KISD assessed D.C. and found him to be a student with a specific learning disability

primarily in reading comprehension. KISD had an affirmative duty to craft an IEP that

would specifically address D.C.’s difficulties with reading comprehension. The hearing

officer found that KISD failed to design an IEP appropriately individualized to meet D.C.’s

unique needs because the IEP did not include any means to remedy D.C.’s reading

comprehension deficits. I concur.

As part of the IEP, KISD placed D.C. in a co-teach program which provided him

one-on-one assistance for up to 3.75 hours per week. The co-teach program allows a

second teacher to enter the classroom in order to assist eligible students in completing their

assignments. The program is not specifically designed to assist in the development of

reading comprehension. Because the limited time the co-teachers had with D.C. was

spread across all of D.C.’s various subjects and the co-teachers often split a student’s time

helping numerous eligible students in any particular classroom, the amount of time the co-

teachers spent helping D.C. work on his reading comprehension is undeterminable. As a

result, I agree with the hearing officer that placement in the co-teach program was an effort

to accommodate but not remediate D.C.’s reading comprehension disability.

In addition to the co-teach program, KISD placed D.C. in a dyslexia intervention

program in which he was provided dyslexia related services and tutoring for 30 minutes

per week. The hearing officer found that, although innocuous, this program failed to

address D.C.’s difficulties in reading comprehension because there was no evidence that

D.C. suffered from dyslexia. KISD had no credible evidence that D.C. suffered from

dyslexia. The only reason the dyslexia services were provided was because of the demands

made by D.C.’s family, who were under the mistaken belief that D.C.’s reading difficulties

were a result of dyslexia. The dyslexia program was not designed to improve the reading

comprehension of those who do not have dyslexia. KISD’s own expert, Dr. Margaret

McKinney, agreed that the dyslexia services would not meet D.C.’s unique needs. See AR

3631 (“I don’t think that a dyslexia intervention in and of itself is going to assist [D.C.]

with the end game of reading . . . comprehension.”).

In sum, KISD failed to design an IEP that was appropriately individualized to

address D.C.’s unique needs in reading comprehension. As a result, this factor weighs in

D.C.’s favor.

2. The Least Restrictive Environment Factor Is Neutral

The parties agree that it is irrelevant whether the IEP was administered in the least

restrictive environment under the facts of this case. Therefore, this factor is neutral.

3. Services were Provided in a Coordinated and Collaborative Manner

The third factor considers whether the key stakeholders provided the services in a

coordinated and collaborative manner. See Michael F., 118 F.3d at 253. “The IDEA

contemplates a collaborative process between the district and the parents.” E.R. v. Spring

Branch Indep. Sch. Dist., No. 4:16-CV-0058, 2017 WL 3017282, at *27 (S.D. Tex. June

15, 2017). The child’s parents, however, do not have the right to dictate an outcome

because parents do not possess veto power over a school district’s decisions. See White,

343 F.3d at 380. Absent bad faith exclusion of a student’s parents or refusal to listen to

them, a school district must be deemed to have met the IDEA’s requirements regarding

collaboration with a student’s parents. See id.

D.C.’s family insisted that D.C. had dyslexia and demanded that the IEP include

dyslexia services despite there being no credible evidence that D.C. had dyslexia. The

hearing officer found that the IEP was not provided in a collaborative manner because

KISD simply acceded to the parent’s demands instead of collaborating with the family to

determine what would best address D.C.’s particular needs. I disagree with this finding.

Although it is true that KISD accepted the family’s demands concerning the

inclusion of the dyslexia services, it is clear, looking at the IEP’s development and

execution as a whole, that collaboration permeated the process. KISD held three lengthy

IEP hearings with D.C.’s family in order to work together to develop the IEP. Even those

present at these meetings characterized the process of developing the IEP as being

collaborative, including D.C.’s own mother. See AR 3438 (Committee member stated, “I

have never been in a more collaborative [IEP development process] than this one. . . .

[E]verything was talked out. It was discussed. It was questioned. Repeated. Questioned

and repeated and discussed, argued, defended. And yeah, collaboratively it happened.”);

AR 3123 (D.C.’s mother agreed that “it was a collaborative process.”). The mere fact that

KISD deferred to the parents and included unnecessary dyslexia services in the IEP does

not, in my view, demonstrate a lack of collaboration. It represents an attempt by KISD to

bend over backwards to be accommodating.

Furthermore, there is no allegation—nor evidence—that KISD excluded D.C.’s

parents from participating in the IEP formulation process or flat-out refused to listen to

their input. The IEP development process could have been found to be collaborative for

this reason alone. See White, 343 F.3d at 380 (“Absent any evidence of bad faith exclusion

of the parents or refusal to listen to or consider the [parents’] input, [defendant] met IDEA

requirements with respect to parental input.”); Blackmon v. Springfield R–XII Sch. Dist.,

198 F.3d 648, 656 (8th Cir. 1999) (The IDEA requirement of collaboration was satisfied

when the school district did not “seriously hamper” the parent’s opportunity to participate

in the formulation process.).

Accordingly, I find that despite KISD’s accession to the demands of D.C.’s family,

the services as a whole were provided in a coordinated, collaborative manner. The hearing

officer erred in finding otherwise. Thus, this factor weighs in KISD’s favor.

4. The IEP Did Not Meaningfully Benefit D.C. Academically

The fourth factor considers whether there have been demonstrable academic and

non-academic benefits resulting from an IEP. See Michael F., 118 F.3d at 253. The

hearing officer found that D.C. obtained a nonacademic benefit from the IEP, but did not

derive a sufficient academic benefit from the program.6 As the Supreme Court has noted,

“[a] student offered an educational program providing merely more than de minimis

progress from year to year can hardly be said to have been offered an education at all.”

Endrew F., 137 S. Ct. at 1001 (internal quotation marks omitted). Hence, a student must

receive more than just “some” or “any” educational benefit from the IEP; the educational

benefit must be meaningful. Id. at 998.

The IDEA does not entitle a disabled child to an IEP that maximizes his educational

performance, but instead only guarantees a “basic floor” of opportunity “specifically

designed to meet the child’s unique needs, supported by services that will permit him to

benefit from the instruction.” Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286,

292 (5th Cir. 2009) (quotation marks and citation omitted). The benefit, however, “cannot

be a mere modicum or de minimis; rather, an IEP [should] produce progress, not regression

or trivial educational advancement.” Id. (quoting Michael F., 118 F.3d at 248). “In short,

the educational benefit that an IEP is designed to achieve must be meaningful.” Michael

F., 118 F.3d at 248 (internal quotation marks and citation omitted).

6 As far as the nonacademic benefit is concerned, the hearing officer held that “[t]he evidence

shows that Student has friends and derives the nonacademic benefit of interacting appropriately

with his nondisabled peers and with his teachers and staff.” Dkt. 1-1 at 30–31.

The relevant period of inquiry begins on March 9, 2018, the day the IEP was

implemented. Admittedly, this inquiry is made more difficult by the fact that the IEP was

implemented late in D.C.’s fifth-grade year, with little time to make a proper assessment

as to the impact of the IEP before the end of the school year. The hearing officer ultimately

concluded that the evidence presented at the administrative hearing demonstrated that D.C.

“made minimal progress in reading, [D.C.’s] primary area of need.” Dkt. 1-1 at 31. Based

on my careful review of the administrative record, I am unable to find any evidence that

the IEP implemented by KISD resulted in a meaningful educational benefit.

Claiming that the IEP did result in a meaningful educational benefit, Defendants

point to the following:7

• D.C. passed all of his classes in the spring of 2018, including reading.

• D.C. passed all sections of the STAAR examination in April 2018. On

the reading section of the STAAR examination, D.C.’s performance

improved from the 16th percentile in fourth grade to the 36th percentile

in fifth grade.

Although this amounts to some, minimal evidence of improvement, there are several

reasons why I find this evidence insufficient to show that D.C.’s reading improvement was

more than de minimus in light of his circumstances.

First, D.C. passed all of his classes before and after the implementation of the IEP.

The Supreme Court has made it clear that passing grades do not alone prove that a child

7 KISD refers to other evidence of improvement during fifth grade, such as an increase in D.C.’s

RIT score, but the evidence is unclear whether the markers of improvement occurred before or

after March 9, 2018, the day the IEP was implemented. See Dkt. 17 at 23–24. As a result, I will

not consider such evidence.

has benefitted from an IEP, especially if the child was already passing before the IEP’s

implementation. See Endrew F., 137 S. Ct. at 1000 n.2; Rowley, 458 U.S. at 203 n.25.

Therefore, D.C.’s passing grades cannot alone be an indicator of improvement when there

is no evidence that D.C. failed his classes before the IEP’s implementation.

Second, if there was any improvement in D.C.’s reading ability, it would be difficult

to determine whether the improvement was due to the IEP because D.C. was receiving

private tutoring all throughout fifth grade. See C. G., 2016 WL 3144161, at *9 (“The Court

finds that these [private tutoring services] hamper the Court’s ability to analyze the true

extent of how [the child] benefited from [the school district’s] IEPs.”). This is especially

true considering that the STAAR examination was administered only one month after the

IEP’s implementation. With so little time between the implementation of the IEP and the

administration of the STAAR examination, the improvement from D.C.’s fourth grade

STAAR results was more likely due to the year of private tutoring rather than one month

of the IEP.

Third, D.C.’s improvement on the fifth grade STAAR exam may have been due to

the numerous STAAR exam accommodations included in the IEP. These accommodations

included “Extra Time,” “Small-Group Administration,” and “Oral/Signed Administration:

READ ALL Test Questions, Answer Choices, Required Reference Materials, and

allowable accommodations” in reading, math, and science. With these additional

accommodations, I would expect that D.C.’s test results would improve. Thus, it is unclear

whether I can attribute the change in D.C.’s STAAR results to an improvement in his

reading ability resulting from the IEP.

In arguing that D.C. received absolutely no benefit from the IEP, Plaintiffs point to

the results of a reading fluency examination in April 2018.8 The results of this test show

that D.C.’s reading fluency was at 82 words per minute and the expected fluency rate for

students in fifth grade is 118–137 words per minute. See PE 47, April 19, 2018 Audiotape

at 1:27:45–1:28:45. Although this evidence does show that D.C.’s reading fluency was

still far below that of his peers after the IEP’s implementation, it does not tell me anything

about whether there was meaningful improvement, and that is the ultimate issue the fourth

Michael F. factor requires me to address. The truth of the matter is that D.C.’s performance

on fluency exams varied dramatically depending on the day. In fourth grade, D.C.’s

fluency score fluctuated between 50 to 100 words per minute. In fifth grade, D.C.’s fluency

score was 71 words per minute at the beginning of the year and 75 words per minute by

mid-year. In comparing the April 2018 result of 82 words per minute to D.C.’s prior fifth-

grade fluency scores, one could find a slight improvement, but there is just not enough data

to account for the natural statistical variation in D.C.’s performance.9 Furthermore, when

I compare the April 2018 results to D.C.’s best results at the end of fourth grade, arguably

D.C.’s reading fluency was slightly worse after the implementation of the IEP. Thus, this

evidence does not weigh in either party’s favor.

8 Plaintiffs rely on other evidence that the IEP did not improve D.C.’s reading ability, such as

D.C.’s independent reading level being equated to a third-grade level in February 2018. See Dkt.

20 at 34–35. However, this evidence is irrelevant because it relates to D.C.’s difficulty reading

before the relevant period of inquiry began on March 9, 2018.

9 Even assuming there was a slight improvement in fluency after the IEP’s implementation, the

question of whether the improvement resulted from the IEP becomes even hazier when taking into

account D.C.’s private tutoring.

Based on a preponderance of the evidence after conducting a virtually de novo

review, it is my conclusion that D.C. did not receive a demonstrable (that is, meaningful)

academic benefit. It is important to note that I am not finding that the IEP provided zero

benefit to D.C. There is evidence that purportedly shows the IEP benefited D.C. through

a slight improvement in D.C.’s grades and STAAR test results. I am simply finding, after

my thorough review of the record, that the IEP’s 3.75 hours of co-teach instruction and 30

minutes of dyslexia services per week did not provide a meaningful benefit to D.C.

Because KISD has failed to satisfy its burden, I find that this factor weighs in Plaintiffs’

favor.

***

In sum, I find that the hearing officer’s only error was his finding of no collaboration

between KISD and D.C.’s family. I find that such error was harmless because two out of

three of the relevant factors at issue still weigh in Plaintiffs’ favor. Accordingly, based on

my virtually de novo review of the administrative record, I find that there is a substantive

violation of the IDEA. KISD has failed to demonstrate by a preponderance of the evidence

that the IEP was reasonably calculated to enable D.C. to receive a FAPE.

C. ATTORNEY’S FEES

The IDEA provides that “‘the court, in its discretion, may award reasonable

attorneys’ fees as part of the costs’ to the parents of a child with a disability who is the

prevailing party.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297

(2006) (quoting 20 U.S.C. § 1415(i)(3)(B)). “The district court must determine whether

the hours claimed were reasonably expended on the litigation.” La. Power & Light Co. v.

Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (internal quotation marks and citation omitted).

See also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (“The district court also should

exclude . . . hours that were not reasonably expended.”) (internal quotation marks and

citation omitted). A prevailing party may seek attorney’s fees for both the administrative

due process proceedings and subsequent litigation in court. See El Paso Indep. Sch. Dist.

v. Richard R., 591 F.3d 417, 422 n.4 (5th Cir. 2009).

Plaintiffs are unquestionably prevailing parties for purposes of awarding attorney’s

fees. See Hensley, 461 U.S. at 433 (“Plaintiffs may be considered ‘prevailing parties’ . . .

if they succeed on any significant issue in litigation which achieves some of the benefit the

parties sought in bringing suit.”) (quotation marks and citation omitted); Jason D.W. v.

Hous. Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998) (“[A] prevailing party is one

that attains a remedy that both (1) alters the legal relationship between the school district

and the handicapped child and (2) fosters the purposes of the IDEA.”). Thus, Plaintiffs are

entitled to a reasonable amount of attorney’s fees. The obvious question then becomes:

What amount of attorney’s fees is reasonable?

1. The Lodestar

The first step in determining the amount of reasonable attorney’s fees is to calculate

the lodestar, which is the product of the number of hours reasonably and necessarily

expended multiplied by the attorney’s reasonable hourly rate. See Jason D.W., 158 F.3d

at 209. Plaintiffs’ counsel, Dorene Philpot (“Philpot”), spent a total of 290 hours working

on this case, 287.2 hours which were billed at $325.00 per hour and 2.8 hours which were

billed at $150.00 per hour for tasks more appropriately billed as clerk time, resulting in a

lodestar amount of $93,760.00.10 The parties have stipulated that the hourly rate is

reasonable.

2. Adjusting the Lodestar

The second step is to evaluate whether the lodestar should be adjusted up or down

based on consideration of the twelve factors established in Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974).11 See Jason D.W., 158 F.3d at 209.

“[T]he lodestar figure includes most, if not all, of the relevant [Johnson] factors

constituting a reasonable attorney’s fee, and . . . an [adjustment] may not be awarded based

on a factor that is subsumed in the lodestar calculation.” Perdue v. Kenny A., 559 U.S.

542, 553 (2010) (internal quotation marks and citation omitted).

The Supreme Court has held that a district court “should focus on the significance

of the overall relief obtained by the plaintiff in relation to the hours reasonably expended

on the litigation.” Hensley, 461 U.S. at 435. “[I]f a plaintiff has achieved only partial or

limited success, the [lodestar] may be an excessive amount.” Farrar v. Hobby, 506 U.S

10 Some 131.2 hours was spent in trial preparation and document review of over 4,000 pages of

production, 92 hours was spent writing the post-hearing brief, and over 30 hours was spent in the

administrative hearing itself, where there were 18 witnesses. The remainder of the time Philpot

spent attempting to negotiate a settlement, discussing the case with her client, and reviewing 13

tape recordings of the IEP hearings.

11 The Johnson factors are: (1) the time and labor required for the litigation; (2) the novelty and

difficulty of the questions presented; (3) the skill required to perform the legal services properly;

(4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the

customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client

or the circumstances; (8) the amount involved and the results obtained; (9) the experience,

reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and

length of the professional relationship with the client; and (12) awards in similar cases. See

Johnson, 488 F.2d at 717–19.

103,114 (internal quotation marks and citation omitted). “This will be true even where the

plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith.” Hensley, 461

U.S. at 436. When a plaintiff only achieves limited success, “[t]he district court may

attempt to identify specific hours that should be eliminated, or it may simply reduce the

award to account for the limited success.” Hensley, 461 U.S. at 436–37. “There is no

precise rule or formula for making these determinations.” Id. at 436. Ultimately, adjusting

the lodestar is within the sound discretion of the district court. See U.S. ex rel. Longhi v.

United States, 575 F.3d 458, 475 (5th Cir. 2009) (“Under the abuse of discretion standard,

a district court’s decision to award attorneys’ fees will not be disturbed unless the award is

based on (1) an erroneous view of the law or (2) a clearly erroneous assessment of the

evidence.”) (quotation marks and citation omitted). As the “party advocating the reduction

of the lodestar amount,” KISD “bears the burden of establishing that a reduction is

justified.” Kellstrom, 50 F.3d at 329 (quotation marks and citation omitted).

Before the hearing officer, Plaintiffs argued extensively that D.C. should be

awarded years of compensatory education services because KISD’s child find duty had

arisen years before KISD finally referred D.C. for a disability evaluation in October 2017.

In support of their argument, Plaintiffs presented considerable evidence in the form of

witness testimony and exhibits that KISD had notice of D.C.’s suspected disability as far

back as 2014. Despite Plaintiffs’ arguments, the hearing officer found that the earliest

possible date from which Plaintiffs could recover was April 27, 2017, the statute of

limitations deadline. Plaintiffs also sought to recover compensatory dyslexia services. The

hearing officer ruled against D.C. on his argument that he was dyslexic and, consequently,

ordered KISD to remove dyslexia services from D.C.’s IEP. In short, Plaintiffs recovered

only a small fraction of the compensatory education services they initially sought.

I, therefore, find that it would be inappropriate for me to award attorney’s fees to

compensate counsel for the time she spent on developing and presenting evidence for

claims that were ultimately time-barred or otherwise unsuccessful. If I were to award

Plaintiffs the full lodestar, the result would be to reward and encourage the prosecution of

stale and/or unmeritorious claims. Nevertheless, Plaintiffs were successful in acquiring an

order to change the IEP and more than six months of compensatory education services.

Accordingly, I find that a 25 percent reduction in the lodestar is warranted and Plaintiffs

are entitled to $70,320.00 in reasonable attorney’s fees and $468.12 in recoverable costs.12

See Combs v. City of Huntington, 829 F.3d 388, 395 (5th Cir. 2016) (Where “the plaintiff

achieved only limited success, the district court should award only that amount of fees that

is reasonable in relation to the results obtained.”) (quoting Hensley, 461 U.S. at 437);

Caldwell Indep. Sch. Dist. v. L.P., 994 F. Supp. 2d 811, 822–23 (W.D. Tex. 2012) (“[T]he

Court finds [the lodestar] should be reduced by 25%, because [the plaintiff] argued for

denial of a free appropriate education as to two years before the hearings officer, but the

12 Plaintiffs requested $1,247.36 in recoverable costs but included expenses for meals, travel, and

lodging. See Dkt. 16-2 at 6. The Supreme Court has held that recoverable costs under the IDEA

are limited to those “set out in 28 U.S.C. § 1920, the general statute governing the taxation of costs

in federal court.” Murphy, 548 U.S. 291, 297–98 (2006). 28 U.S.C. § 1920 does not list costs

associated with meals, travel, or lodging. Consequently, I find that Plaintiffs should not be

awarded the $779.24 associated with these expenses. See id. at 297 (The use of the term costs

rather than expenses “strongly suggests that § 1415(i)(3)(B) was not meant to be an open-ended

provision that makes participating States liable for all expenses incurred by prevailing parents in

connection with an IDEA case—for example, travel and lodging expenses or lost wages due to

time taken off from work.”).

officer found only one year had been denied. Nevertheless, no further reduction is

necessary, because [the plaintiff] was successful on most other grounds.”).

CONCLUSION

Because I find that a preponderance of the evidence supports the hearing officer’s

decision, I RECOMMEND that Plaintiffs’ Motion for Judgment Affirming the Hearing

Officer and for Attorney’s Fees (Dkt. 16) be GRANTED, Defendant Klein Independent

School District’s Motion for Summary Judgment (Dkt. 17) be DENIED, and Plaintiffs be

compensated $70,320.00 in reasonable attorney’s fees and $468.12 in recoverable costs.

The Clerk shall provide copies of this Memorandum and Recommendation to the

respective parties who have fourteen days from the receipt thereof to file written objections

pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002–13. Failure to

file written objections within the time period mentioned shall bar an aggrieved party from

attacking the factual findings and legal conclusions on appeal.

SIGNED in Houston, Texas, this ____ day of _________, 2020.

_____________________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE