The opinion
December 31, 2021
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LAMAR CONSOLIDATED § CIVIL ACTION NO.
INDEPENDENT SCHOOL § 4:20-cv-02353
DISTRICT, §
Plaintiff, §
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
J.T. b/n/f APRIL S., §
Defendant. §
OPINION AND ORDER
GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
The Individuals with Disabilities in Education Act
requires state school districts that receive federal funds to
make available to children with qualifying disabilities a
free, appropriate public education (known as a FAPE). See
20 USC § 1412(a)(1)(A). Each FAPE must be tailored to the
needs of the individual student according to the design of
an independent educational plan (known as an IEP) or
behavioral intervention plan (known as a BIP). See 20 USC
§§ 1414(d) & 1415(k).
This action stems from a complaint originally filed with
the Texas Education Agency by April S. as next friend of
her son, J.T., asserting that Lamar Consolidated
Independent School District denied J.T. his FAPE during
the Fall 2018 semester in violation of the IDEA. A TEA
special education hearing officer found in favor of J.T.
Lamar CISD initiated this administrative appeal to
challenge that ruling. It brought a motion for partial
summary judgment to reverse and vacate the hearing
officer’s decision. Dkt 20. Specifically, Lamar CISD seeks a
ruling to reverse the award of relief as contrary to the facts
and law, and to instead find that its remedial efforts were
in compliance with the IDEA and ensured that J.T.
received a FAPE—thus also finding that J.T. isn’t a
prevailing party entitled to an award of attorney fees.
For reasons stated here, the motion is granted.
1. Background
J.T. attends George Ranch High School, and April S. is
his mother. George Ranch is part of Lamar CISD and is
located in Fort Bend County, Texas, roughly ten miles
southwest of Sugar Land. J.T. started at George Ranch in
the Fall of 2018 upon transfer into Lamar CISD. AR 6;
see also Dkt 1 at ¶ 4.1.
J.T. has various learning disabilities, including
Rubenstein-Taybi syndrome. This causes him to
experience limited strength, heightened alertness to
stimuli, subaverage general intellectual functioning,
deficits in adaptive behavior, impaired articulation, and
mood changes (including temper outbursts and anxiety),
among other symptoms. Due to his various disabilities, J.T.
occasionally becomes very upset and reacts angrily, at
times by yelling or throwing his belongings. Dkt 1 at ¶ 4.1.
These outbursts are expected from him, and the
appropriate instructive response is addressed in his
designated BIP. For example, April S. was at times asked
to pick J.T. up from school early, and J.T. at times needed
to be restrained to prevent him from hurting himself or
others. See AR 2242–45 (incidents on 09/04/2018 and
09/10/2018). Further, the Admissions, Review, and
Dismissal Committee of Lamar CISD (referred to as the
ARD Committee) met regularly to discuss these incidents
and any changes needed to J.T.’s IEP or BIP. For example,
see AR 2163–220 (09/21/2020 ARD Committee report);
AR 2247–60 (10/26/2018 ARD Committee report).
The transition by J.T. to George Ranch for the Fall
2018 semester presented a number of challenges due to
concerns like those noted above. Of import, the TEA
hearing officer ultimately determined that J.T.’s claims in
this action are limited by a one-year statute of limitations,
thus focusing the dispute on those claims arising on or after
November 20, 2018. AR 5–6; see also Tex Admin Code
§ 89.1180(i) (one-year statute of limitations). But at an
ARD meeting just prior to that on November 2nd, the ARD
Committee reviewed a new function behavioral assessment
(known as an FBA) and proposed new academic goals as
requested by April S. See AR 2656 (deliberations), 2657–67
(goals). In addition to the new IEP goals, the ARD
Committee also introduced a new BIP along with two new
behavioral goals. AR 2673.
Much of this dispute concerns J.T.’s interactions with
a former George Ranch teacher named Regina Thurston.
She was new to George Ranch at the start of the Fall 2018
semester and resigned at its end. Dkt 1 at ¶ 4.2; AR 39.
During that semester, she responded inappropriately to
J.T.’s outbursts several times. Such instances after
November 20th included:
o On November 29th, in frustration with one of
J.T.’s outbursts, Thurston forcefully grabbed
him while he was on the ground and threw his
shoes across the room;
o On December 14th, while students waited to get
on the bus, Thurston told J.T. “if you want to
kick me then walk over here and kick me”—but
after doing what he was told, Thurston kicked
J.T. in the shin;
o On December 18th, after J.T. had become upset
in response to a loud video and turned over his
desk, she dumped additional items on the floor
and yelled at him to “pick it up”;
o On December 19th, after J.T. had become
physically aggressive, Thurston grabbed him
by the arm and shoved him to the ground, with
another physical interaction causing them both
to fall to the ground; and
o On December 20th, again without any apparent
provocation, Thurston pushed J.T. from a ball
chair onto the floor.
AR 17–20.
Members of the George Ranch administration began
investigating the December 14th incident promptly. But
the school didn’t inform April S. of that incident at an ARD
Committee meeting on December 18th. AR 19. And it
wasn’t until December 20th that the school requested
April S. to view video of the incident. AR 21, 3221–22. At
that time, April S. also requested and was allowed to view
video from the November 29th incident. She suspected that
an incident had occurred that day because J.T. came home
from school with scratches on his arm. AR 20.
At the beginning of the Spring 2019 semester, J.T.
received a half-day suspension for an outburst. April S.
requested a meeting with the ARD Committee, at which
she requested that J.T. receive temporary homebound
instruction. The ARD Committee agreed, and after several
days of homebound instruction, April S. permitted J.T. to
return to school. But on January 30th, the administration
showed April S. the December 19th video as part of its
continuing investigation into Thurston and monitoring of
its special education policies. April S. then refused to
permit J.T. to attend in-person instruction for the
remainder of the 2018–2019 school year. AR 20–21.
George Ranch provided increased homebound services
during this time. As explained in the administration
decision:
Homebound instruction was increased
from 4 hours/week to 10 hours/week. The
ARD committee agreed to provide
occupational therapy, personal care
services, and ABA therapy. It also agreed
that adaptive PE would be provided and
that compensatory speech therapy services
would be made up before the end of the
school year. . . . The district agreed to pay
for six months of private counseling
sessions for [J.T.] and [April S.]. [April S.]
stopped attending following the May 15,
2019 session.
AR 21–22.
The ARD Committee met in August 2019 to review
J.T.’s full individual evaluation (known as an FIE) and to
discuss his education for the 2019–2020 academic year.
The ARD Committee and April S. agreed to a plan to
transition J.T. back to school by providing him a
combination of on-campus and homebound instruction.
AR 23. Even so, she filed an administrative complaint with
the TEA asserting that Lamar CISD denied J.T. a FAPE in
violation of the IDEA. Ibid; see also Dkt 1 at ¶ 4.7.
A special education hearing officer of the TEA
eventually conducted a hearing and determined (among
other things) that J.T. was denied a FAPE for the Fall 2018
semester. He ordered Lamar CISD to provide J.T. one
semester of compensatory services and other miscellaneous
benefits. The full decision can be found at AR 1–53.
Lamar CISD filed a complaint in July 2020 to appeal
this administrative decision. Dkt 1. J.T. answered and
asserted counterclaims for violations of the Americans with
Disabilities Act, the Rehabilitation Act, and equal
protection under the Fourteenth Amendment pursuant to
42 USC § 1983. See Dkts 10 & 12 at ¶¶ 164–206. Counsel
confirmed at hearing that J.T. continues to attend George
Ranch at present.
Lamar CISD moved for partial summary judgment to
reverse and vacate aspects of the decision by the hearing
officer as to the conclusion that it didn’t comply with the
IDEA and to request a finding instead that its remedial
efforts ensured that J.T. received a FAPE. Dkt 20. That
motion is addressed here. Lamar CISD also moved to
dismiss the Section 1983 counterclaim by J.T. Dkt 15. That
motion has been stayed pending determination here.
Minute Entry of 10/21/2020.
2. Legal standard
J.T. at base complains about the substantive appropri-
ateness of his IEP. For such a challenge, the Fifth Circuit
directs district courts to follow the four-factor test set forth
in Cypress-Fairbanks ISD v Michael F., 118 F3d 245
(5th Cir 1997). These factors are:
o First, whether the program is individualized on
the basis of the student’s assessment and
performance;
o Second, whether the program is administered
in the least restrictive environment;
o Third, whether the services are provided in a
coordinated and collaborative manner by the
key stakeholders; and
o Fourth, whether positive academic and non-
academic benefits are demonstrated.
Michael F., 118 F3d at 253; see also E.R. v Spring Branch
ISD, 909 F3d 754, 765 (5th Cir 2018).
Some litigants (including J.T. here) have argued that
the pertinent law changed with the recent Supreme Court
decision in Endrew F. v Douglas County School District
RE-1, 137 S Ct 988 (2017); see Dkt 23 at 18–19. But the
Fifth Circuit has since expressly addressed Endrew F. and
determined that the Michael F. factors are consistent with
that decision and continue to govern this type of IDEA
claim. See Amanda P. v Copperas Cove ISD, 838 F App’x
104, 106 n 1 (5th Cir 2021).
With respect to the weight of each factor, the Fifth
Circuit has said that district courts needn’t apply them “in
any particular way.” R.S. v Highland Park ISD, 951 F3d
319, 330 (5th Cir 2020, per curiam), quoting Richardson
ISD v Michael Z., 580 F3d 286, 294 (5th Cir 2009)
(quotation marks omitted). That is so because the factors
are only indicators of an IEP’s appropriateness. Michael Z.,
580 F3d at 294 (collecting cases). This means that a district
court doesn’t “legally err by affording more or less weight
to particular Michael F. factors.” Ibid. Still, the Fifth
Circuit “has found that the fourth factor is ‘one of the most
critical factors in this analysis.”’ P.P. v Northwest ISD,
839 F App’x 848, 854 (5th Cir 2020, per curiam), quoting
Houston ISD v V.P., 582 F3d 576, 588 (5th Cir 2009).
In reviewing an administrative decision, a district
court must give findings of the hearing officer “due weight.”
Michael F., 118 F3d at 252, quoting Board of Education of
Hendrick Hudson Central School District v Rowley, 458 US
176, 206 (1982) (quotation marks omitted). But “the court
must ultimately reach an independent decision” based on
its evaluation of the evidence. Ibid. As such, the standard
of review is “virtually de novo.” Ibid (quotation marks and
citation omitted). And the party challenging the IEP bears
the burden to show that the IEP and resulting placement
was inappropriate. Ibid.
3. Analysis
The primary challenge brought by J.T. is to the
implementation of his IEP. When that is so, the first two
Michael F. factors are “generally not at issue.” Spring
Branch ISD v O.W., 961 F3d 781, 796 (5th Cir 2020)
(quotation marks and citation omitted). And indeed,
counsel for J.T. confirmed at hearing that he doesn’t
challenge the first two factors. See Dkt 20 at 24–25 (noting
no appeal by J.T. on these factors).
In this posture, a court must instead “decide whether a
FAPE was denied by considering, under the third factor,
whether there was a ‘substantial or significant’ failure to
implement an IEP; and under the fourth factor, whether
‘there have been demonstrable academic and non-academic
benefits from the IEP.’” O.W., 961 F3d at 796, quoting
Houston ISD v Bobby R., 200 F3d 341, 349 (5th Cir 2000).
a. Provision of educational services in a
coordinated and collaborative manner
On this issue, the party “challenging the
implementation of an IEP must show more than a de
minimis failure to implement all elements of that IEP, and,
instead, must demonstrate that the school board or other
authorities failed to implement substantial or significant
provisions of the IEP.” Bobby R., 200 F3d at 349. Whether
a provision is significant keys primarily to whether it
confers an educational benefit. Id at 349 n 2.
The hearing officer noted that the evidence cuts both
ways without expressly determining whether it weighed
more heavily in favor of one party over the other. In favor
of Lamar CISD, the hearing officer noted the clear
dedication by the ARD Committee to implementing J.T.’s
IEP—as evidenced by their meeting frequently to discuss
the subject, J.T.’s substantial academic progress, and their
accommodating him and April S. following the decision to
temporarily withdraw J.T. from George Ranch. In favor of
J.T., the hearing officer noted Thurston’s failure to
implement the IEP’s guidance with respect to
communication techniques and George Ranch’s failure
both to provide April S. with regular progress reports and
to timely report the incidents involving Thurston and J.T.
to April S. See generally AR 32–35.
Lamar CISD argues that this factor weighs in its favor,
stressing that the failures of the Fall 2018 semester
mustn’t be viewed in a vacuum, but instead that its
services given to J.T. must be viewed in their entirety. See
generally Dkt 20 at 26. It highlights the hearing officer’s
finding that, in the Spring 2019 semester, its “prompt
response [to the Fall 2018 semester] brought compliance
with [J.T.’s] IEP to ensure [J.T.] received a FAPE after
January 2019.” Id at 26, quoting AR 40. And Lamar CISD
argues that its efforts to accommodate April S. and remedy
any damage show ample coordination and collaboration.
Dkt 20 at 28–29.
J.T. raises two arguments in response—first, that
Lamar CISD failed to collect and record meaningful data
with respect to J.T.’s development and to deliver progress
reports to April S.; and second, that Lamar CISD hid
information related to J.T.’s education from April S.,
especially the incidents involving Thurston. See Dkt 23
at 16–17, 22–23.
The special hearing officer was undoubtedly correct
that the evidence doesn’t clearly favor either party. It
certainly can’t be denied that Thurston failed to follow the
behavioral intervention plans of the IEP, which resulted in
further outbursts by J.T.—much less that she actually
struck him. And it likewise can’t be denied that Lamar
CISD wasn’t as promptly forthcoming with respect to the
Thurston incidents as it could have been. These failures by
Lamar CISD are serious.
Still, it must be recognized that Lamar CISD without
question also took these failures seriously and promptly
mitigated them with its subsequent actions. And even if
arguably tardy, it did ultimately fully explain the Thurston
incidents. It also made genuine efforts to accommodate
April S. and maintain J.T.’s education when she held him
out of school, including providing specialized instruction
and offering other placement. Lamar CISD actively
collaborated with April S. during this time, meeting many
times to discuss accommodations and alternatives.
It’s important to remember that the central purpose of
implementing an IEP—and of coordinating and
collaborating with key stakeholders in that respect—is to
confer educational benefits. The Fifth Circuit has explained
such focal point this way:
While consideration of any educational
benefit received might arguably seem to
conflate the third and fourth prongs of the
Cypress-Fairbanks inquiry, determination
of what are “significant” provisions of an
IEP cannot be made from an exclusively
ex ante perspective. Thus, one factor to
consider under an ex post analysis would be
whether the IEP services that were
provided actually conferred an educational
benefit.
Bobby R., 200 F3d at 349 n 2.
As explained in detail next, J.T. received meaningful
academic and non-academic benefits during the Spring
2019 semester. And in this respect, analysis of the third
factor shows that the failures identified above didn’t
ultimately detract from Lamar CISD fulfilling its
obligation to provide J.T. with a FAPE as measured over
the whole of the 2018–2019 academic year.
b. Positive academic and non-academic benefits
The Fifth Circuit has said that “educational benefit” is
one of the most critical factors in assessing the appropri-
ateness of an IEP. V.P., 582 F3d at 588. Clearly, “evidence
of an academic benefit militates in favor of a finding that
an IEP is appropriate.” Klein ISD v Hovem, 690 F3d 390,
399 (5th Cir 2012). “Whether a child is able to pass general
education classes and whether a child’s test scores have
increased are important indicators of whether a child has
received a meaningful benefit.” D.C. v Klein ISD,
860 F App’x 894, 904 (5th Cir 2021); see also Leigh Ann H.
v Riesel Independent School District, 18 F 4th 788, 798 n 12
(5th Cir 2021) (educational benefit found on basis of grade
improvement and standardized test scores). The progress
made must be more than minimal, and benefits conferred
must be meaningful. See V.P., 582 F3d at 588.
It’s also important to contextualize these
considerations with a student’s particular circumstances.
That is:
A disabled child’s development should be
measured not by his relation to the rest of
the class, but rather with respect to the
individual student, as declining percentile
scores do not necessarily represent a lack of
educational benefit, but only a child’s
inability to maintain the same level of
academic progress achieved by his non-
disabled peers.
Bobby R., 200 F3d at 349. “Whether advancement is so
trivial or minor as to qualify as de minimis must be
evaluated in light of the child’s circumstances.” R.S.,
951 F3d at 337.
This means that, even if the disabled child experiences
brief periods of limited progress, or even regression, the
IDEA hasn’t necessarily been violated. Id at 336–37.
Rather, the “ultimate legal issue” is whether, from a
holistic perspective, the child “was receiving a meaningful
educational benefit from the services provided.” V.P.,
582 F3d at 591. And the Fifth Circuit instructs courts to
bear in mind that the IDEA doesn’t require that schools
establish “the best possible education or one that will
maximize her potential,” but rather that it set a “basic floor
of opportunity.” Id at 590, citing Rowley, 458 US at 188–89,
201 (quotation marks omitted).
A central issue addressed at hearing was the temporal
scope of the analysis on this factor—that is, whether
academic and non-academic benefits are to be weighed by
considering only the events during the Fall 2018 semester,
or by considering the entire 2018–2019 academic year. The
hearing officer limited his analysis to the end of the Fall
2018 semester, and so he determined that this factor
weighs in favor of J.T. On academic benefits, he found that
Thurston’s failure to implement J.T.’s IEP (especially with
respect to communication techniques) denied him
meaningful academic progress. With respect to non-
academic benefits, he found that J.T. didn’t develop any
meaningful benefits, and that his behavioral problems may
have even worsened during this time. See AR 35–37.
But statutory and regulatory provisions confirm than
an IEP is intended to be implemented and measured with
reference to a given academic year. For example, an IEP
itself is usually developed for and pertains to an academic
year as a whole, with the educational program
recommended by the IEP designed to be implemented and
monitored over the period of a full year. For example, see
20 USC § 1414(d)(1)(A)(i)(II) (IEP as “statement of
measurable annual goals, including academic and
functional goals”); 34 CFR § 300.320(a)(2) (same); see also
20 USC § 1414(d)(2)(A) (IEP to be in effect at “beginning of
each school year”); 34 CFR § 300.323(a) (same). Indeed, the
Supreme Court explains that a student’s IEP sets out
“annual goals designed to enable the child to be involved in
and make progress in the general education curriculum.”
Endrew F., 137 S Ct at 1000 (emphasis added). As such,
academic and non-academic benefits must be weighed by
considering the entirety of a given academic year—here,
the 2018–2019 academic year.
Lamar CISD thus points out that the hearing officer’s
analysis ignored steps taken and achievements gained in
the Spring 2019 semester. And it argues that this factor
instead weighs in its favor because J.T. received
meaningful academic and non-academic benefits during
the relevant time period of the 2018–2019 school year. See
Dkt 20 at 29–32. Lamar CISD highlights the finding by the
ARD Committee that J.T. mastered his IEP goals with
respect to English, math, science, social studies, and
behavior. See Dkt 20 at 31. He also demonstrated improve-
ments on that year’s STAAR tests. Id at 30. Lamar CISD
also stresses the fact that April S. “never expressed any
concerns or disagreement” with J.T.’s progress. Ibid. For
instance, when asked about the adequacy of the
homebound services teacher, April S. said that the teacher
“has gone above and beyond to make sure that [J.T.]
progresses.” Ibid, quoting AR 3261.
J.T. maintains to the contrary that he was denied
meaningful academic and non-academic benefits in the
Fall 2018 semester. See Dkt 23 at 23–28. That is, the ARD
Committee documented J.T. as having failed to make
academic progress in that semester and as having
numerous continuing behavioral issues. He also stresses
the failures by Thurston, who was unable to instruct him
with respect to both academic subjects and non-academic
subjects like behavior. J.T. also argues that the presence of
some educational progress doesn’t necessarily mean that
Lamar CISD has fully complied with the IDEA. For
instance, J.T. contends that he might have made even more
progress if Lamar CISD had properly and consistently
implemented the IEP.
J.T.’s IEP was set to cover—and thus pertains to—an
entire academic year. AR 2163. As noted above, that is the
timeframe that must be considered. Any other conclusion
would necessarily fail implementation of an IEP as a whole
upon encountering discrete problems during implementa-
tion, for the very reason that some putative further benefit
to the student could have been gained if the problem hadn’t
occurred. But even if more progress was possible, more
progress isn’t required. The Fifth Circuit instead quite
clearly states, “An IEP need not maximize a child’s
potential in order to comply with IDEA.” R.S., 951 F3d at
330, citing Rowley, 458 US at 207. Rather, all that’s
required is for the school district to confer meaningful
educational benefits. Michael F., 118 F3d at 248.
Properly viewed in temporal scope, this factor weighs
in favor of Lamar CISD. It’s undisputed that J.T. achieved
many of the goals set by his IEP. Indeed, the hearing officer
expressly found, “The evidence showed Student received
more than a de minimis educational benefit from the
homebound program provided.” AR 40. With respect to
behavioral goals, J.T. mastered Behavioral Goal 1 and
Behavioral Goal 2. AR 2458. With respect to academics,
J.T. exceeded mastery of English Goal 1 and mastered
Math Goal 1, Science Goal 1, and Social Studies Goal 1. See
AR 2445–50, 2452–53, 2455–56; see also AR 3555–56
(explaining mastery). And the hearing officer specifically
noted, “Student did exceptionally well on the Biology
STAAR, passed the Algebra I STAAR, and was only a few
questions away from passing the English/Language Arts
STAAR. It is clear Student was successful academically.”
AR 40.
J.T.’s progress was of course limited during the end of
the Fall 2018 semester, and the evidence likewise shows
that his behavioral progress regressed in part. But those
events don’t invalidate the progress noted in the above
objective measures over the entire academic year. And
when that year is viewed as a whole, it’s clear that J.T.
received meaningful academic and non-academic benefits.
c. Balance of the factors
As noted above, the first and second factors aren’t
generally at issue here because J.T. only challenges the
implementation of his IEP. O.W., 961 F3d at 796. To the
extent they do pertain, they weigh in favor of Lamar CISD,
as they tend to show that J.T.’s IEP was individualized and
administered in the least restrictive environment. See
AR 28–32.
The third factor doesn’t strongly favor either party.
Lamar CISD on the one hand did fail to implement the IEP
in its monitoring of Thurston. But on the other hand, it
made thorough and ultimately successful efforts to
remediate those failures.
The fourth (and most critical) factor weighs decidedly
in favor of Lamar CISD. See P.P., 839 F App’x at 854. Quite
simply, J.T. received meaningful academic and non-
academic benefits during the applicable period of his IEP.
The ultimate question is whether Lamar CISD
designed and implemented an appropriate IEP. By these
standards and on this record, Lamar CISD didn’t violate
the IDEA. The subject IEP was specifically designed to help
J.T. make meaningful progress in his academic and
behavior skills. And he did make meaningful progress in
both respects over the 2018–2019 academic year. The
conduct related to Thurston is no doubt serious. And left to
later consideration is whether J.T. is entitled to legal relief
on his claims asserted under the Americans with
Disabilities Act, the Rehabilitation Act, and the equal
protection of laws guaranteed by the Fourteenth
Amendment. But as to the federal statute at issue here,
with Lamar CISD’s design and implementation of his IEP,
J.T. received that meaningful floor set for the public
education of disabled children by the IDEA.
Partial summary judgment will enter in favor of
Lamar CISD. It argued in the alternative that, even if the
record shows that it failed to implement J.T.’s IEP, the
compensation ordered by the hearing officer cannot stand
because there’s no evidence of an educational injury that
needs to be remedied. See Dkt 20 at 32–40. Such contention
is now moot because a “compensatory award requires a
‘corresponding finding of an IDEA violation.’” P.P., 839 F
App’x at 857, quoting O.W., 961 F3d at 800.
4. Conclusion
The motion for partial summary judgment by Plaintiff
Lamar Consolidated Independent School District on its
challenge to the decision of the Texas Education Agency
hearing officer is GRANTED. Dkt 20.
The award of relief by the hearing officer is REVERSED
AND VACATED as being contrary to the facts and law.
It is instead expressly DETERMINED that the remedial
efforts by Lamar CISD were in compliance with the
Individuals with Disabilities in Education Act and ensured
that J.T. received a free, appropriate public education. As
such, J.T. isn’t a prevailing party entitled to an award of
attorney fees.
SO ORDERED.
Signed on December 31, 2021, at Houston, Texas.
on. Charles Eskridge
United States District Judge
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