Opinion

UNITED STATES DISTRICT COURT February 26, 2026

Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

T.L. INDIVIDUALLY and A/N/F §

of J.T., a Minor, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 4:24-cv-1435

§

NEW CANEY INDEPENDENT §

SCHOOL DISTRICT, TEXAS §

EDUCATION AGENCY, and §

MIKE MORATH, in his §

Individual and Official Capacity, §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

Pending before the Court1 are Defendant New Caney Independent

School District’s (“NCISD”) Motion for Summary Judgment (ECF No. 46),

Defendant Texas Education Agency (“TEA”) and Defendant Mike Morath’s

(“Morath”) (collectively, “State Defendants”) Motion for Summary Judgment

(ECF No. 47), State Defendants’ Third Motion to Dismiss (ECF No. 48), and

Plaintiff T.L., Individually and a/n/f of J.T., a minor’s (“Plaintiff”) Motion for

Judgment on Administrative Record against NCISD (ECF No. 49). Based on

a review of the motions, arguments, and relevant law, the Court

1 This case was referred to the Undersigned for all purposes pursuant to 28 U.S.C.

§ 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF No. 51).

RECOMMENDS NCISD’s Motion for Summary Judgment (ECF No. 46) be

GRANTED, State Defendants’ Motion for Summary Judgment (ECF No. 47)

be GRANTED, State Defendants’ Third Motion to Dismiss (ECF No. 48) be

GRANTED IN PART and DENIED IN PART, and Plaintiff’s Motion for

Judgment on Administrative Record against NCISD (ECF No. 49) be

DENIED.

I. Background2

This case is an appeal under the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. § 1400 et seq., of a Special Education Hearing Officer’s

(the “SEHO”) decision. (ECF No. 16). The IDEA provides that a disabled

child’s parents may file a complaint “with respect to any matter relating to the

identification, evaluation, or educational placement of the child, or the

provision of a free appropriate public education to such child.” 20 U.S.C. §

1415(b)(6).

Here, Plaintiff is the mother of J.T., a minor. (ECF No. 16 at ¶ 3). J.T.

previously attended Tavola Elementary School within NCISD. (AR 006). On

May 24, 2023, Plaintiff requested a special education evaluation for J.T., also

referred to as a Full and Individual Initial Evaluation (“FIIE”). (Id.). Plaintiff

2 The Administrative Record, on file with the parties, is referred to herein as “AR”

with a corresponding page number. The parties filed a USB with the certified administrative

record with the Clerk’s office in the Southern District of Texas. (See ECF No. 25). The AR is

also available at ECF No. 37-1–37-7.

2

provided parental consent for the FIIE on July 14, 2023. (Id.). Plaintiff

requested that the FIIE evaluate the areas of autism, speech, and occupation

therapy. (Id.). Plaintiff also requested a Functional Behavior Analysis (“FBA”)

be performed. (Id.).

The FIIE was conducted in September and October 2023 and ultimately

completed on October 17, 2023. (Id.). The areas of suspected disability were

“specific learning disability in reading and math as well as speech,

psychological and emotional disturbance.” (Id.). Three evaluators conducted

various portions of the FIIE. (See AR 006–010). An FBA was also completed

by one of the evaluators. (AR 009). The results of the FBA included

recommendations for a Behavior Intervention Plan (“BIP”) for J.T. (Id.).

After the FIIE was complete, NCISD invited Plaintiff to meet with the

three evaluators to review the evaluation and results. (AR 010). This meeting

occurred on October 24, 2023, one week after NCISD completed the FIIE. (Id.).

In the October 24 meeting, NCISD provided the overall conclusion that J.T.

did not meet an educational disability condition. (Id.).

On November 2, 2023, NCISD held an Admission, Review, and Dismissal

(“ARD”) committee meeting to review the evaluation results and make a

determination as to J.T.’s qualification for special education. (AR 011–012).

Plaintiff also attended the ARD meeting. (Id.). The ARD committee found J.T.

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did not qualify for special education. (Id.). Plaintiff ultimately signed ARD

paperwork that agreed with the ARD determination. (AR 012).

On November 8, 2023, an incident occurred with J.T. at school that

resulted in him being placed in NCISD’s Disciplinary Alternative Education

Program (“DAEP”) due to a violation of the Student Code of Conduct. (Id.).

On November 27, 2023, Plaintiff filed a request for an expedited

impartial due process hearing pursuant to the IDEA. (AR 001). A due process

hearing was ultimately conducted on December 20 and 21, 2023. (AR 003).

Plaintiff’s claim consisted of the following issues:

• Whether NCISD violated its Child Find Obligations in failing to

timely evaluate J.T. in all areas of suspected disability or need,

including autism;

• Whether NCISD violated the IDEA by failing to develop an Individual

Education Plan (“IEP”), including the provision of educational and

related services;

• Whether NCISD violated Child Find in failing to timely complete an

FBA for J.T.;

• Whether NCISD violated the IDEA by failing to develop a BIP for

J.T.;

• Whether NCISD violated the IDEA by failing to conduct a

Manifestation Determination Review (“MDR”) for J.T. prior to his

placement at the DAEP; and

• Whether NCISD failed to comply with procedural obligations under

the IDEA and related laws.

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(AR 004). On January 22, 2024, the SEHO issued its decision, which included

findings of fact and conclusions of law. (AR 001–021). The SEHO concluded

as follows:

• NCISD is responsible for properly identifying, evaluating, and

serving students under the provisions of the IDEA;

• Plaintiff failed to carry the burden of proof to establish a violation of

IDEA of a denial of a Free Appropriate Public Education (“FAPE”);

• Plaintiff did not meet the burden of proof on the claims asserted

against NCISD;

• Plaintiff failed to prove that NCISD violated its Child Find duties;

• Plaintiff did not meet the burden of proving that J.T. is a child with a

disability who is eligible for special education and related services

under the IDEA; and

• Plaintiff did not prove NCISD failed to work collaboratively with

Plaintiff.

(AR 020–021). As such, the SEHO dismissed all of Plaintiff’s claims with

prejudice. On April 19, 2024, Plaintiff filed the instant case against NCISD

and the State Defendants, appealing the decision of the SEHO. (ECF Nos. 1,

16). Plaintiff alleges violations under IDEA, Section 504 of the Rehabilitation

Act (“Section 504”), 29 U.S.C. § 794; and Title II of the Americans With

Disabilities Act (“ADA”), 42 USC § 12132. (See ECF No. 16 at ¶¶ 46–56).

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II. Legal Standards

a. Review of Due Process Hearing

The IDEA offers states federal funds to assist in educating children with

disabilities. Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580

U.S. 386, 390 (2017). In exchange for the funds, a state agrees to comply with

a number of statutory conditions. Among them, the state must provide a FAPE

to all eligible children. 20 U.S.C. § 1412 (a)(1). A FAPE includes both “special

education” and “related services.” 20 U.S.C. § 1401(9). “Special education” is

“specially designed instruction . . . to meet the unique needs of a child with a

disability”; “related services” are the support services “required to assist a child

. . . to benefit from” that instruction. 20 U.S.C. §§ 1401(26), (29). A state

covered by the IDEA must provide a disabled child with such special education

and related services “in conformity with the [child’s] [IEP].” 20 U.S.C.

§1401(9)(D).

Under the IDEA’s “Child Find” provision, states are obligated to

“identify, locate, and evaluate all children with disabilities residing in the

State to ensure that they receive needed special-education services.” Forest

Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009) (internal quotations omitted).

The Child Find obligations in the IDEA arise when a school district “has reason

to suspect a disability coupled with reason to suspect that special education

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services may be needed to address that disability.” El Paso Indep. Sch. Dist.

v. Richard R., 567 F. Supp. 2d. 918, 950 (W.D. Tex. 2008). “If a determination

is made that a child has a disability and needs special education and related

services, an IEP must be developed for the child.” 34 C.F.R. § 300.306(c)(2);

see also 20 U.S.C. § 1414(d)(2)(A).

If a parent is dissatisfied with a school district’s evaluation or

educational placement of a child, the parent may file a due process complaint

before an impartial hearings officer. 34 C.F.R. § 300.507(a)-512. A SEHO’s

decision on an alleged Child Find violation is then subject to review in this

Court pursuant to 20 U.S.C. § 1415(i)(2)(c) (“[T]he [C]ourt . . . (i) shall receive

the records of the administrative proceedings; (ii) shall hear additional

evidence at the request of the party; and (iii) basing its decision on the

preponderance of the evidence, shall grant relief as the court determines is

appropriate.”).

Under the IDEA, a federal district court’s review of a SEHO’s decision is

“virtually de novo.” Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th

Cir. 1993). A court must (1) receive the records of the administrative

proceedings; (2) hear additional evidence at the request of a party; and (3) base

its decision on the preponderance of the evidence and grant such relief as the

court determines to be appropriate. Seth B. ex rel. Donald B. v. Orleans Par.

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Sch. Bd., 810 F.3d 961, 966 (5th Cir. 2016) (quoting 20 U.S.C. § 1415(i)(2)(C)).

“The district court is required to accord ‘due weight’ to the hearing officer’s

findings, but it must ultimately reach an independent decision based on the

preponderance of the evidence.” Id. (quotation omitted). Unlike in a

traditional summary judgment context, the existence of a disputed material

fact will not defeat a motion for summary judgment on an IDEA claim. Seth

B., 810 F.3d at 966; T.W. by K.J. v. Leander Indep. Sch. Dist., No. 17-cv-627,

2019 WL 1102380, at *2 (W.D. Tex. Mar. 7, 2019). Instead, the court looks to

“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.” Seth B., 810

F.3d at 966. “When no new evidence is presented to the district court in an

IDEA suit[,] the motion for summary judgment is simply the procedural vehicle

for asking the judge to decide the case on the basis of the administrative

record.” D.C. v. Klein Indep. Sch. Dist., 711 F. Supp. 2d 739, 744 (S.D. Tex.

2010) (internal quotations omitted).

When reviewing a SEHO’s decision under the IDEA, the district court’s

role is purposefully limited: “Congress left the choice of educational policies

and methods where it properly belongs—in the hands of state and local school

officials.” Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir.

8

1989). The court’s task is not to second guess state and local policy decisions

but to determine whether state and local school officials have complied with

the IDEA. White ex rel. White v. Ascension Par. Sch. Bd., 343 F.3d 373, 377

(5th Cir. 2003). Accordingly, courts cannot “substitute their own notions of

sound educational policy for those of the school authorities which they review.”

Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley,

458 U.S. 176, 206 (1982).

b. Rule 12(b)(1) Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure (“Rule”)

12(b)(1) challenges the subject matter jurisdiction of the court. See FED. R. CIV.

P. 12(b)(1). “‘A case is properly dismissed for lack of subject matter jurisdiction

when the court lacks the statutory or constitutional power to adjudicate the

case.’” Walmart Inc. v. U.S. Dep’t of Justice, 21 F.4th 300, 307 (5th Cir. 2021)

(quoting Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006,

1010 (5th Cir. 1998)). Federal courts are courts of limited jurisdiction and,

absent jurisdiction conferred by statute or the Constitution, lack the power to

adjudicate claims. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377

(1994).

Where a defendant challenges a plaintiff’s jurisdictional allegations, the

plaintiff bears the burden of supporting those allegations by competent proof.

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Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Porretto v. City of Galveston Park

Bd. of Trs., 113 F.4th 469, 481 (5th Cir. 2024); Ramming v. United States, 281

F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). “Subject-matter

jurisdiction may be addressed by considering: ‘(1) the complaint alone; (2) the

complaint supplemented by undisputed facts evidenced in the record; or (3) the

complaint supplemented by undisputed facts plus the court’s resolution of

disputed facts.’” Hopkins v. Wayside Schs., No. 23-50600, 2024 WL 3738478,

at *4 (5th Cir. Aug. 9, 2024) (quoting Ramming, 281 F.3d at 161)). Thus, in

examining a Rule 12(b)(1) motion to dismiss, the court is “empowered to

consider matters of fact which may be in dispute.” Ramming, 281 F.3d at 161

(citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

III. Discussion

As discussed, the State Defendants filed a Third Motion to Dismiss (ECF

No. 48) and a Motion for Summary Judgment (ECF No. 47), NCISD filed a

Motion for Summary Judgment (ECF No. 46), and Plaintiff filed a Motion for

Judgment on Administrative Record against NCISD (ECF No. 49). The Court

will address each motion in turn.

a. The State Defendants’ Third Motion to Dismiss (ECF No. 48)

The State Defendants argue (1) all claims against the Commissioner in

his individual capacity should be dismissed because there is no right to sue the

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Commissioner in his individual capacity under the IDEA, the ADA, or Section

504; (2) all claims against the State Defendants should be dismissed for lack of

standing; and (3) all claims against the State Defendants should be dismissed

because they are not ripe. (ECF No. 48-1 at 1–2).

i. The Commissioner

First, the State Defendants argue that Plaintiff’s claims against the

Commissioner in his individual capacity should be dismissed because there is

no right to sue the Commissioner in his individual capacity under the IDEA,

the ADA, or the Rehabilitation Act. (Id. at 8–11). In response, Plaintiff states

that the Court dismissed the claims against the Commissioner in his

individual capacity in the Court’s September 11, 2024 Order. (ECF No. 53 at

2 n.1). The State Defendants note that the Court’s September 11, 2024 Order

only dismissed Plaintiff’s § 1983 claims against the State Defendants. (ECF

No. 57 at 5 (citing ECF No. 33 at 9)). Nevertheless, the State Defendants argue

that the Court should dismiss Plaintiff’s claims against the Commissioner in

his individual capacity because Plaintiff abandoned the claims by failing to

address the claims in Plaintiff’s Response. (Id. at 5).

The State Defendants are correct that the Court’s September 11, 2024

Order did not dismiss Plaintiff’s claims against the Commissioner in his

individual capacity. (See ECF No. 33 at 9). The State Defendants are also

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correct that “[t]his circuit’s well-settled precedent instructs that a party

abandons a claim by failing to defend it in response to motions to dismiss and

other dispositive pleadings.” McClelland v. Katy Indep. Sch. Dist., 63 F.4th

996, 1010 (5th Cir. 2023). Because Plaintiff failed to defend their claims

against the Commissioner in his individual capacity, the Court must conclude

Plaintiff has abandoned those claims. See Normore v. Dallas Indep. Sch. Dist.,

677 F. Supp. 3d 494, 525 (N.D. Tex. 2023). As such, the Court recommends the

State Defendants’ Motion to Dismiss be granted as to Plaintiff’s claims against

the Commissioner in his individual capacity. See Aromaye v. Moynihan, No.

3:24-cv-981, 2025 WL 426078, at *2 (N.D. Tex. Feb. 7, 2025) (granting a motion

to dismiss because plaintiff abandoned his claims by not responding to the

motions to dismiss).

ii. Standing

Second, the State Defendants argue Plaintiff’s claims should be

dismissed for lack of standing because (1) the alleged injury is not fairly

traceable to the State Defendants and (2) a remedy against the State

Defendants is unlikely to redress the alleged injury. (ECF No. 48-1 at 11–13).

The Constitution limits federal courts to deciding “Cases” and

“Controversies.” ART. III, § 2. “Among other things, that limitation requires a

plaintiff to have standing.” Fed. Election Comm’n v. Cruz, 596 U.S. 289, 295–

12

96 (2022). “The requisite elements of Article III standing are well established:

A plaintiff must show (1) an injury in fact, (2) fairly traceable to the challenged

conduct of the defendant, (3) that is likely to be redressed by the requested

relief.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).

The party invoking federal jurisdiction bears the burden of establishing these

elements. Lujan, 504 U.S. at 561.

Here, the State Defendants contend Plaintiff has failed to establish the

second and third elements of standing: traceability and redressability. (ECF

No. 48-1 at 14).

1. Traceability

Plaintiff alleges the State Defendants “failed to provide adequate

protections by failing to ensure the compliance with procedural safeguards

under the IDEA.” (ECF No. 16 at ¶ 26). Plaintiff also alleges the State

Defendants were put on notice that Plaintiff requested a due process hearing

for a Child Find violation. (Id.). Plaintiff adds that the State Defendants have

a responsibility to monitor NCISD to ensure that its obligations under the

IDEA are being followed. (Id. at ¶ 28). Yet, despite allegedly being on notice

that NCISD was not meeting its legal obligations under the IDEA, Plaintiff

states the State Defendants did not act. (Id. at ¶ 29).

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The State Defendants contend Plaintiff fails to show that J.T.’s injuries

are traceable to the State Defendants because Plaintiff does not allege any

specific conduct by the State Defendants. (ECF No. 48-1 at 12). Specifically,

the State Defendants argue Plaintiff “does not explain what actions the State

Defendants were required to take and did not” and “what the State Defendants

failed to do that they were required to do or what they did that was prohibited.”

(Id.).

The traceability requirement “does not require a party to establish

proximate causation, but only requires that the injury be ‘fairly traceable’ to

the defendant.” League of United Latin Am. Citizens, Dist. 19 v. City of Boerne,

659 F.3d 421, 431 (5th Cir. 2011) (citing Bennett v. Spear, 520 U.S. 154, 168–

69 (1997)). In Bennett, the Supreme Court warned against “wrongly equat[ing]

injury ‘fairly traceable’ to the defendant with injury as to which the defendant’s

actions are the very last step in the chain of causation.” 520 U.S. at 168–69.

Although “it does not suffice if the injury complained of is the result of the

independent action of some third party not before the court, that does not

exclude injury produced by determinative or coercive effect upon the action of

someone else.” Id. at 169 (internal quotations and citations omitted).

The Texas Legislature has mandated that the TEA promulgate rules for

the administration and funding of the special education program so that a

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FAPE is available to all eligible disabled children. TEX. EDUC. CODE ANN. §

29.001; see also Wood v. Katy Indep. Sch. Dist., No. 09-cv-1390, 2011 WL

4383032, at *4 (S.D. Tex. Sep. 20, 2011) (citing 20 U.S.C. § 1412(a)(11)(A))

(“The TEA, as the State’s educational agency, is responsible for assuring that

the requirements of the IDEA are met and that all educational programs for

disabled children administered by any other agency or local agency meet the

educational standards of the TEA.”). Further, the Fifth Circuit has expressly

held that “either or both” the TEA and local school districts “may be held liable

for the failure to provide a free appropriate public education.” St. Tammany

Par. Sch. Bd. v. State of La., 142 F.3d 776, 784 (5th Cir. 1998).

In St. Tammany, the court reasoned that the “IDEA places primary

responsibility on the state educational agency, by providing that it ‘shall be

responsible for assuring that the requirements of this subchapter are carried

out.’” Id. (quoting 20 U.S.C. § 1412(6)).

This language suggests that, ultimately, it is the [state educational

agency]’s responsibility to ensure that each child within its

jurisdiction is provided a free appropriate public education.

Therefore, it seems clear that [a state educational agency] may be

held responsible if it fails to comply with its duty to assure that

IDEA’s substantive requirements are implemented.

Id. (quoting Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 952 (4th Cir. 1997));

see also Wood, 2011 WL 4383032, at *4 (“A state educational agency may be

held liable for failure to provide a FAPE under IDEA.”). Under the IDEA, the

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TEA is responsible for “providing a FAPE, addressing failures to provide

appropriate services and taking corrective action to address the needs of the

child.” John H. by next friend Denise H. v. Elgin Indep. Sch. Dist., No. 1:20-cv-

816, 2021 WL 7081436, at *5 (W.D. Tex. Oct. 25, 2021), report and

recommendation adopted sub nom. Denise H. v. Elgin Indep. Sch. Dist., No.

1:20-cv-816, 2021 WL 7081435 (W.D. Tex. Dec. 8, 2021).

Here, because Plaintiff alleges the State Defendants failed to provide

Plaintiff with a FAPE under the IDEA, and a “state educational agency may

be held liable for failure to provide a FAPE under IDEA,” the Court finds

Plaintiff has demonstrated that the alleged injuries are fairly traceable to the

State Defendants. See id.; Wood, 2011 WL 4383032, at *4; Garcia v. Morath,

624 F. Supp. 3d 690, 700 (W.D. Tex. 2022), report and recommendation

adopted, No. 1:21-cv-1011, 2023 WL 163978 (W.D. Tex. Jan. 10, 2023).

2. Redressability

To satisfy the redressability element of standing, Plaintiff must show

that “it is likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Lujan, 504 U.S. at 561).

The State Defendants argue that Plaintiff fails to show the State Defendants

can redress Plaintiff’s alleged injuries because the requested relied by Plaintiff

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“is for direct services in line with what [a local educational agency], such as

[NCISD], provides to its students.” (ECF No. 48-1 at 13). Plaintiff responds

that it is seeking the following to be provided: (1) Independent Educational

Evaluations (“IEE”); (2) compensatory education; and (3) reimbursement of

parent’s educational and therapy expenses. (ECF No. 53 at 11). Plaintiff adds

that “clearly TEA is capable of funding and providing oversight related to each

of these requests” and that the State Defendants have a shared responsibility

with NCISD to ensure the provision of FAPE. (Id. at 11–12).

Because “[t]he TEA . . . is responsible for assuring that the requirements

of the IDEA are met and that all educational programs for disabled children

administered by any other agency or local agency meet the educational

standards of the TEA,” the Court finds Plaintiff has alleged sufficient facts at

the motion to dismiss stage to demonstrate redressability. See Wood, 2011 WL

4383032, at *4; John H., 2021 WL 7081436, at *5; Garcia, 624 F. Supp. 3d at

700.

iii. Ripeness

Lastly, the State Defendants argue Plaintiff’s claims against them are

not ripe for resolution because they “rest upon the conclusion that [NCISD] has

violated J.T.’s right to a FAPE.” (ECF No. 48-1 at 13). The State Defendants

reason that “[u]ntil a finding has been made that [NCISD] did . . . fail to provide

17

a FAPE and that [NCISD] is unwilling or unable to comply with an order

against it, Plaintiff’s claim is merely hypothetical.” (Id.).

“Ripeness separates those matters that are premature because the

injury is speculative and may never occur from those that are appropriate for

judicial review.” United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir.

2000). Here, J.T. alleges he already has an injury in that he has been denied

a FAPE as required by the IDEA. (See ECF No. 16 at ¶ 24). As such, there is

“no abstraction or contingency to determining whether [the State Defendants]

violated [their] obligations under the IDEA in this case.” El Paso Indep. Sch.

Dist., 567 F. Supp. 2d at 931. As such, the Court finds Plaintiff has alleged

sufficient facts at the motion to dismiss stage to demonstrate ripeness.

Based on the foregoing, the Court recommends the State Defendants’

Third Motion to Dismiss (ECF No. 48) be denied as to its standing and ripeness

arguments.

b. NCISD’s Motion for Summary Judgment (ECF No. 46) and

Plaintiff’s Motion for Judgment on the Administrative Record

Against NCISD (ECF No. 49)

NCISD moves for summary judgment on Plaintiff’s claims against

NCISD for violations of the IDEA, Section 504, and the ADA. (ECF No. 46 at

10). Conversely, Plaintiff moves for a judgment on the administrative record

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and requests that the Court reverse the decision of the SEHO. (ECF No. 49 at

5).

i. The IDEA

The parties seek their respective requests for relief on different grounds.

NCISD argues that summary judgment is appropriate because (1) it fulfilled

its Child Find obligation because it timely evaluated J.T.; (2) its FIIE complied

with the IDEA’s evaluation requirements; (3) J.T. was not entitled to an MDR

under the IDEA; and it complied with the IDEA’s procedural requirements.

(Id. at 16–26). Conversely, Plaintiff contends the AR shows that NCISD

violated its Child Find obligation by (1) failing to evaluate in all areas of known

or suspected disabilities; (2) failing to timely conduct an FBA and develop a

BIP; (3) improperly predetermining that J.T. did not meet the special

education eligibility criteria; and (4) failing to appropriately respond to

Plaintiff’s request for an IEE. (ECF No. 49 at 2). Plaintiff also argues the AR

demonstrates NCISD (1) violated IDEA by placing J.T. in a DAEP without an

MDR; (2) failed to develop an appropriate IED for J.T.; and (3) did not comply

with its procedural obligations under IDEA. (Id.).

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1. Child Find Obligation

a. The SEHO’s Decision

The SEHO concluded that Plaintiff failed to prove NCISD violated its

Child Find duties. (AR 020). In coming to that conclusion, the SEHO noted

that Plaintiff claimed NCISD failed its Child Find duties by failing to

completely evaluate J.T. for all of the possible disabilities that J.T.’s mother

requested. (AR 018). However, the SEHO explained that “the law . . . requires

only that the evaluation be complete in all areas of suspected disability.” (Id.

(citing 34 C.R.F. § 300.304(c)(4)). The SEHO described J.T.’s mother’s areas of

concern included autism, occupational therapy, and a counseling evaluation.

(Id.). The SEHO addressed each concern:

The evidence shows that the autism evaluation was done to the

extent that there was no suspicion of such, and the evaluator was

clear that had there been any indication of autism that additional

follow-up evaluations would have been completed. With regard to

the [occupational therapy] evaluation, the results were clear that

[J.T.] had no difficulty or deficiency in either gross or fine motor

skills. Lastly, although the counseling evaluation was not

completed, the evaluator did conduct an emotional and depressive

assessment, and found no emotional disability.

(Id.). The SEHO also noted that Plaintiff presented no evidence of the

existence of a disability in any of the identified areas. (Id.). As a result, the

SEHO found Plaintiff failed to establish that NCISD failed to comply with any

requirements for an IDEA evaluation. (Id.).

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Lastly, the SEHO found J.T. did not qualify as a student with a disability

in the areas evaluated. (Id. (citing 34 C.R.F. § 300.8)). The SEHO noted the

“record is full of references to the likelihood of ADHD,” but that a physician’s

diagnosis is necessary and it was not obtained at the time of the hearing. (Id.).

b. Timeliness of the Evaluation

NCISD first argues that it fulfilled its Child Find obligation because it

timely evaluated J.T. (ECF No. 46 at 16). Plaintiff does not appear to contest

NCISD’s argument.3 (ECF No. 55 at 9–15).

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 by Parker v. Galveston

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

omitted). “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

3 There are instances in Plaintiff’s motion (ECF No. 49) and response (ECF No. 55)

where Plaintiff raises a timeliness issue. (See ECF No. 49 at 5, 13; ECF No. 55 at 1, 12).

However, Plaintiff does not provide argument as to this issue in either her motion or

response.

21

between these two dates.” Spring Branch Indep. Sch. Dist. v. O.W. ex rel.

Hannah W., 961 F.3d 781, 793 (5th Cir. 2020).

Here, NCISD contends the earliest NCISD’s Child Find duty could have

been triggered was May 24, 2023, which was the day Plaintiff submitted a

written request for an FIIE to the Direct of Special Education Services. (ECF

No. 46 at 17 (citing AR 508)). Six days later, on May 30, 2023, NCISD contacted

T.L. to schedule a meeting to obtain consent for the special education

evaluation. (Id. (citing AR 520)). NCISD notes that, in Texas, if a parent

submits a written request to a school district’s director of special education

services for an FIIE, the school district must respond within fifteen school

days.4 (Id. at 16 (citing 19 TEX. ADMIN. CODE § 89.1011(b)). In response, the

school district must either (1) agree to conduct the FIIE and provide the parent

with prior written notice of its proposal to evaluate and an opportunity to give

written consent for the evaluation or (2) provide the parent with prior written

notice of its refusal to conduct the evaluation. (Id. (citing 19 TEX. ADMIN. CODE

§ 89.1011(b)(1–2)). Thus, NCISD notes that it complied with the 15-school-day

response timeline when it contacted T.L. to obtain consent for the FIIE. (Id.

at 17).

4 Full individual and initial evaluation timelines are measured in school days,

excluding any days between the last instructional day of the spring term and the first

instructional day of the fall term. 19 TEX. ADMIN. CODE § 89.1011(i).

22

The AR reflects that Plaintiff returned the consent form on July 14,

2023.5 (AR 511). The AR also shows that on July 18, 2023, NCISD emailed

Plaintiff because the consent form failed to indicate whether she granted

consent for the evaluation. (ECF No. 46 at 17 (citing AR 510)). Plaintiff then

submitted a signed consent form with the date “June 29, 2023.” (AR 294).

After obtaining consent for the evaluation, NCISD states it completed J.T.’s

FIIE on October 17, 2023 (ECF No. 46 at 17 (citing AR 316–60) and convened

the ARD committee on November 2, 2023 (id. (citing AR 361–65)). NCISD

explains that, after receiving written consent from the parent, the school

district must complete the initial evaluation and issue the corresponding

report within 45 school days. (Id. (citing TEX. EDUC. CODE § 29.004(a)(1)).

Further, after completing the FIIE, the school district must ensure the ARD

committee determines the student’s initial eligibility, and if appropriate,

develops the IEP and placement within thirty calendar days of the completion

of the written FIIE report. 19 TEX. ADMIN. CODE § 89.1011(g). Thus, NCISD

argues (1) its completion of the FIIE fell within the required timeline as

October 17, 2023 was the 45th school day of the 2023–2024 academic year and

5 In its motion, NCISD states Plaintiff returned the consent form on July 14, 2024.

(ECF No. 46 at 17). The Court assumes this is a typographical error.

23

(2) the ARD committee convened well within the 30-day deadline. (ECF No.

46 at 17).

Based on the evidence, NCISD’s Child Find duty was triggered on May

24, 2023 (AR 006), the duty was ultimately satisfied on November 2, 2023 (AR

012), and the delay between the two dates was a period of approximately five

months. The Court notes that a portion of this delay occurred the summer

before the 2023–2024 academic year, a time in which J.T. could not have been

losing educational opportunities or benefits. See Heather v. Houston Indep.

Sch. Dist., No. 17-cv-3579, 2021 WL 1216883, at *8 (S.D. Tex. Mar. 9, 2021),

report and recommendation adopted sub nom. Heather B. v. Houston Indep.

Sch. Dist., No. 4:17-cv-3579, 2021 WL 1215848 (S.D. Tex. Mar. 31, 2021), aff’d

sub nom. Heather B., Next Friend of S.S. v. Houston Indep. Sch. Dist., No. 21-

20229, 2022 WL 4299727 (5th Cir. Sept. 19, 2022) (“That two month delay came

towards the end of the academic school year, at a time when any earlier

evaluation of SS would not, and could not, have resulted in any lost educational

opportunities or benefits for SS during the 2016-2017 school year.”). Further,

some of the delay came from waiting to receive parental consent. (AR 510).

However, despite such delays, NCISD did comply with the relevant evaluation

timelines. See 19 TEX. ADMIN. CODE § 89.1011; TEX. EDUC. CODE §

29.004(a)(1).

24

Based on a preponderance of the evidence, and while giving due weight

to the SEHO’s decision, the Court finds NCISD timely evaluated J.T. in

compliance with IDEA’s Child Find requirement.

2. NCISD’s FIIE

NCISD then argues that its FIIE complied with IDEA’s evaluation

requirements by evaluating J.T. in all areas of suspected disability. (ECF No.

46 at 18–21). NCISD also adds that Plaintiff provided no evidence to support

her allegation that NCISD failed to evaluate J.T. in all areas of suspected

disability. (Id. at 21–22). Conversely, Plaintiff argues that evidence

demonstrates J.T.’s mother requested an FIIE to include autism, NCISD

agreed to evaluate in that area, but an NCISD evaluator unilaterally decided

not to conduct the evaluation for autism. (ECF No. 49 at 12–13). Thus, it is

Plaintiff’s position that NCISD did not evaluate J.T. in all areas of suspected

disability. (Id.).

The IDEA does not specifically define “suspected disability.” See 20

U.S.C. §§ 1401, 1414(b)(3)(B). Rather, the only reference to “suspected

disability” is the statutory mandate that a “local educational agency shall

ensure that . . . the child is assessed in all areas of suspected disability.” 20

U.S.C. § 1414(b)(3)(B) (emphasis added).

25

Despite Plaintiff’s framing of the issue, “nowhere in the statute is there

a requirement that a local education agency assess a child in all eligibility

categories.” Heather H. v. Nw. Indep. Sch. Dist., 529 F. Supp. 3d 636, 656 n.6

(E.D. Tex. 2021), aff’d, No. 21-40316, 2022 WL 1800771 (5th Cir. June 2, 2022)

(emphasis added). Nor is there a requirement that a local education agency

assess a child in the eligibility categories requested by a parent. Thus, the

relevant inquiry is whether NCISD assessed J.T. in all areas of suspected

disability rather than the eligibility categories requested by a parent. 20

U.S.C. § 1414(b)(3)(B); see also Heather H., 529 F. Supp. 3d at 658 (citing

Jaccari J. v. Bd. of Educ. of City of Chicago, Dist. No. 299, 690 F. Supp. 2d 687,

706 (N.D. Ill. 2010) (concluding the IDEA “does not require testing in every

conceivable area of disability” but, instead, requires “assessments in all areas

of suspected disability”)).

When reviewing whether a child was assessed in all areas related to the

suspected disability, a district’s evaluation is held to a standard of

“reasonableness.” Heather H., 529 F. Supp. 3d at 659 (citing J.S. v. Shoreline

Dist., 220 F. Supp. 2d 1175, 1185 (W.D. Wash. 2002)). “The IDEA does not

prescribe substantive goals for an evaluation but provides only that it be

‘reasonably calculated to enable the child to receive educational benefits.’”

J.S., 220 F. Supp. 2d at 1185 (quoting Rowley, 458 U.S. at 207). These

26

evaluations must “use a variety of assessment tools and strategies to gather

relevant functional, developmental, and academic information, including

information provided by the parent.” 20 U.S.C. § 1414(b)(2)(A)–(C); 34 C.F.R.

§ 300.304(b)(1)–(3)).

Here, NCISD assessed J.T. using a variety of assessment tools and

strategies in conducting the FIIE. (See AR 006). The SEHO noted “the areas

of suspected disability were specific learning disability in reading and math as

well as speech, psychological and emotional disturbance.” (Id.). Three

evaluators conducted various portions of the FIIE. (Id.). The evaluator who

conducted the behavioral, psychological, and emotional components of the

evaluation noted he had “a checklist of sorts” when he did the evaluation and

that his checklist included “autism, emotional disturbance and specific

learning disability.” (AR 008). However, that evaluator testified that he “did

not suspect autism and therefore did not complete any autism specific follow-

up testing. He also indicated that if there had been any suspicion, that he

would have done additional testing . . . .” (AR 009). Further, as noted by

NCISD (ECF No. 46 at 21–22) and the SEHO (AR 018), Plaintiff presented no

evidence supporting a diagnosis of autism. Thus, in assessing J.T. in all areas

of suspected disability, including autism, the preponderance of the evidence

27

reflects that NCISD used a variety of assessment tools and strategies in

compliance with IDEA’s requirements.

Based on a preponderance of the evidence, and while giving due weight

to the SEHO’s decision, the Court finds NCISD’s FIIE complied with the

IDEA’s evaluation requirements.

3. FBA

Plaintiff argues NCISD failed to have a Board-Certified Behavior

Analyst (“BCBA”) conduct an FBA and then failed to develop a BIP. (ECF No.

49 at 13–14). Plaintiff claims that instead of using a BCBA, NCISD “had a

licensed specialist in school psychology observe [J.T.] in the classroom for a

little more than an hour and then relied on the [licensed specialist in school

psychology] for his opinions for the ‘FBA.’” (Id. at 13). NCISD responds that

this is the first time Plaintiff is raising this claim that NCISD’s use of a school

psychologist to conduct the FBA was inappropriate and a BCBA should have

performed the assessment. (ECF No. 52 at 9). As such, because Plaintiff did

not raise a legal issue at the due process hearing regarding the qualifications

of NCISD’s evaluation team who completed the FBA, NCISD argues Plaintiff

is prohibited from raising this issue. (Id.). Plaintiff does not address NCISD’s

Response in its Reply. (See ECF No. 59 at 2).

28

“Before a plaintiff can bring a claim based on the IDEA, he or she must

first exhaust their state administrative remedies.” J.V. v. Brownsville Indep.

Sch. Dist., No. 1:18-cv-008, 2020 WL 3415747, at *7 (S.D. Tex. June 22, 2020)

(citing 20 U.S.C. § 1415(l)). The SEHO’s decision does not state that Plaintiff

made this argument previously. By failing to raise this argument in the due-

process hearing, the argument is not exhausted. See C.P. v. Krum Indep. Sch.

Dist., No. 4:13-cv-63, 2014 WL 4651534, at *12 (E.D. Tex. Sept. 17, 2014)

(concluding an issue that was not raised before the SEHO was not exhausted).

As such, the Court will not consider Plaintiff’s argument that a BCBA should

have conducted the FBA. See Novak v. Ennis Indep. Sch. Dist., No. 3:10-cv-

2123, 2012 WL 13026966, at *3 n.6 (N.D. Tex. Sep. 11, 2012) (declining to

consider arguments not exhausted before the SEHO).

As to Plaintiff’s argument regarding a BIP, Plaintiff simply states

NCISD ignored its own evaluator who recommended J.T. receive a BIP. (ECF

No. 49 at 13). Plaintiff provides no argument or authority as to how this is an

IDEA violation. As such, the Court finds Plaintiff’s argument without merit.

4. Predetermination

NCISD argues it did not predetermine J.T.’s ineligibility for special

education services. (ECF No. 46 at 23). Plaintiff disagrees and contends

29

NCISD did improperly predetermine that J.T. did not meet the criteria for

special education eligibility. (ECF No. 49 at 14).

As explained by the Fifth Circuit:

Predetermination occurs when the state makes educational

decisions too early in the planning process, in a way that deprives

the parents of a meaningful opportunity to fully participate as

equal members of the IEP team. To avoid a finding of

predetermination, there must be evidence the state has an open

mind and might possibly be swayed by the parents’ opinions and

support for the IEP provisions they believe are necessary for their

child. But, the right to provide meaningful input is simply not the

right to dictate an outcome and obviously cannot be measured by

such.

E. R. by E. R. v. Spring Branch Indep. Sch. Dist., 909 F.3d 754, 769 (5th Cir.

2018) (internal quotations and citations omitted).

Here, Plaintiff argues NCISD held a meeting with J.T.’s mother to

discuss the FIIE and that “[t]his meeting did not meet the legal requirements

of an ARD Committee Meeting.” (ECF No. 49 at 14). During the meeting,

Plaintiff states “the three individuals who conducted the Student’s FI[I]E

confirmed to the Student’s mother that he did not meet the criteria for

eligibility as a student in need of special education services.” (Id.). It is

Plaintiff’s position that “[t]his was very clearly an improper predetermination.”

(Id. at 15). Plaintiff also adds that “[w]hen [NCISD] did hold an ARD

Committee meeting . . ., it did not even discuss the Student’s FI[I]E as

required,” the meeting lasted less than twenty minutes, and NCISD staff

30

instructed J.T.’s mother to “indicate ‘agree’ when signing the paperwork.” (Id.).

For support, Plaintiff cites the Audio Exhibit of the ARD committee meeting

but does not cite to any specific portion of the meeting. (Id.).

In response, NCISD explains that its evaluation team did meet with

J.T.’s mother to review the FIIE results on October 24, 2023. (ECF No. 52 at

11). However, NCISD argues the purpose of the meeting was to support J.T.’s

mother’s ability to “meaningfully participate” in the upcoming ARD committee

meeting. (Id.). NCISD asserts that when the ARD committee meeting

convened on November 2, 2023, NCISD reviewed the FIIE results again and

“afforded [Plaintiff] ample opportunity to provide input.” (Id. at 12). NCISD

adds that “[Plaintiff] was not pressured to sign the documentation at the

conclusion of the meeting; rather, she declined to sign at that time, took the

documentation home for review, and later returned it signed to NCISD,

indicating her agreement.” (Id. (citing AR 362)).

The SEHO’s decision states “[t]he evidence . . . clearly established that

the Student’s mother was given several opportunities through the evaluation

review meeting to ask questions, request clarification, and provide input and

comments” during the October 24, 2023 meeting. (AR 010). Later, at the ARD

committee meeting, “the Student’s mother was asked if she had any questions

about the evaluation. The evidence also demonstrated that the Student’s

31

mother did not voice disagreement with the evaluation or the DNQ (Does not

Qualify) decision at the ARD.”6 (AR 011).

Based on the administrative record, the Court cannot find by a

preponderance of the evidence either that J.T.’s ineligibility for special

education services was predetermined by NCISD, or that J.T.’s mother was

deprived of her right to meaningfully participate in the decision process.

“‘[P]redetermination is not synonymous with preparation.’” E. R., 909 F.3d at

769 (quoting Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 610–11

(6th Cir. 2006)). In this case, NCISD was prepared. See M.V. v. Conroe Indep.

Sch. Dist., No. 18-cv-401, 2019 WL 193923, at *5 (S.D. Tex. Jan. 15, 2019)

(finding no predetermination where a school district had prepared a draft

decision document before an MDR meeting). Further, Plaintiff had the

6 Plaintiff argues this case is similar to “John H. v. Elgin ISD, Docket No. 125-SE-

1219 (May 4, 2020).” (ECF No. 49 at 14). NCISD contends Plaintiff overlooks several

dissimilarities between the instant case and the John H. case. (ECF No. 52 at 11). NCISD

explains that, “[i]n concluding that the school district impeded the parent’s ability to

participate in the decision-making process, the SEHO found that the district imposed an

arbitrary one-and-a-half-hour time limit on the ARD committee meeting, conducted the

meeting in a manner that discouraged parental questions, abruptly ended it before the

announced time limit, and attempted to substitute outside meetings for the formal ARD

process.” (Id. (citing Student v. Elgin Indep. Sch. Dist., TEA Dkt. No. 125-SE-1219, at 22–

23, https://tea.texas.gov/about-tea/government-relations-and-legal/special-ed-due-process-

hearings-2020/125-se-1219elgin-isd.pdf (last visited Feb. 18, 2026))). Having reviewed the

John H. case, the Court agrees with NCISD that it is factually distinguishable from the

instant case. See Student, TEA Dkt. No. 125-SE-1219, at 22–28 (“[T]he decisions of the ARD

committee were not reasonably informed by the input of Parent, do not provide Student with

a FAPE, and are not reasonably calculated to enable this student to make progress

appropriate in light of this student’s circumstances.”).

32

opportunity to participate in both the October 23, 2023 meeting and the ARD

committee meeting. The Court notes, again, that a parent’s “right to provide

meaningful input is simply not the right to dictate an outcome and obviously

cannot be measured by such.” White ex rel. White v. Ascension Par. Sch. Bd.,

343 F.3d 373, 380 (5th Cir. 2003). Plaintiff offers no reason to believe that

NCISD “would not have listened to, and considered” Plaintiff’s position at the

ARD meeting. See E.R., 909 F.3d at 769. As such, the Court finds NCISD did

not predetermine that J.T. did not meet the criteria for special education

eligibility.

5. IEE

Plaintiff contends NCISD failed to appropriately respond to Plaintiff’s

request for an IEE. (ECF No. 49 at 15). NCISD argues this legal issue was

not raised during the due process hearing and is, therefore, not properly before

the Court. (ECF No. 52 at 12). However, NCISD also affirmatively argues

that there is no genuine issue of material fact as to NCISD’s alleged failure to

respond to an IEE request because no such request was ever made. (ECF No.

46 at 26).

The SEHO notes that Plaintiff’s requested relief included the following:

“Order an Independent Educational Evaluation (IEE) to be performed by the

Petitioners’ provider of choice . . . .” (AR 005). However, the SEHO later states

33

that “there was no evidence that the Student’s mother, or anyone on

Petitioner’s behalf, requested an Independent Education Evaluation (IEE)

from the District.” (Id. at 011). For support, the SEHO cited portions of the

transcripts from the Due Process Hearing. (AR 848–850, 909–910). During

the hearing, the hearing officer stated, “the record reflects that no IEE request

has been made.” (AR 850). The SEHO provided the following analysis as to

this issue:

With regard to the Petitioner’s assertion that the Petitioner is

entitled to an IEE at District expense, no evidence was submitted

to demonstrate that Petitioner requested an IEE. While it is

claimed in the closing brief that an IEE was requested as part of

Petitioner’s pleading or complaint initiating this due process

proceeding, the pleading was never entered into evidence.

Pleadings alone are not evidence. As no evidence was presented

on this issue, no ruling will be made.

(AR 020).

Here, Plaintiff provides no evidence that an IEE was requested. In fact,

Plaintiff cites to testimony from the due process hearing where J.T.’s mother

was asked if she was contacted about an IEE and she responds, “No. I don’t

know what that is.” (AR 835). Without evidence that Plaintiff actually

requested an IEE from NCISD, the Court finds Plaintiff fails to show NCISD

failed to appropriately respond to such a request.

34

6. Manifestation Determination

Plaintiff argues NCISD violated IDEA by placing J.T. in a DAEP without

an MDR. (ECF No. 49 at 16). Conversely, NCISD argues J.T. was not entitled

to an MDR. (ECF No. 46 at 22).

Per 20 U.S.C. § 1415(k)(5)(A), a student who has not been determined to

be eligible for special education and who has engaged in behavior that violates

a code of student conduct, may be entitled to an MDR if the local educational

agency had knowledge that the student was a child with a disability before the

behavior leading to discipline occurred. If a local educational agency proposes

a disciplinary removal that will constitute a change of placement, the ARD

committee must conduct an MDR to determine whether the conduct resulting

in removal is a manifestation of the child’s disability. Id. § 1415(k)(1)(E). If

the conduct was a manifestation of the child’s disability, the local educational

agency must return the child to the placement from which they were removed.

Id. § 1415(k)(1)(F)(iii). A student is not entitled to an MDR, however, if “the

child has been evaluated and it was determined that the child was not a child

with a disability.” Id. § 1415(k)(5)(C).

Here, the incident that led to J.T. being placed at NCISD’s DAEP

occurred on November 8, 2023. (AR 012). At that point, NCISD had already

determined that J.T. did not qualify for special education services. (Id.). Based

35

on this timeline, the evidence establishes that J.T. was not entitled to an MDR

prior to his placement in the DAEP. See 20 U.S.C. § 1415(k)(5)(C). Thus,

Plaintiff’s argument that NCISD violated IDEA by placing J.T. in a DAEP

without an MDR fails.

7. IEP

Plaintiff argues NCISD failed to develop an appropriate IEP for J.T.

(ECF No. 49 at 17). NCISD responds that J.T. did not qualify for IDEA’s

benefits and, thus, was not entitled to an IEP. (ECF No. 52 at 14).

As discussed, after completing an FIIE, the school district must ensure

that the ARD committee determines the student’s initial eligibility, and if

appropriate, develops an IEP and placement, within thirty calendar days of

the FIIE report’s completion. 19 TEX. ADMIN. CODE § 89.1011(g). An IEP is

the “means by which special education and related services are tailored to the

unique needs of a particular child.” Endrew F., 580 U.S. at 391.

Thus, because J.T. did not have a qualifying disability, J.T. was not

entitled to an IEP. See R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1008

(5th Cir. 2010) (explaining that IDEA requires school district in states

receiving designated federal funds to implement procedures and policies that

assure that each disabled student receives a FAPE and that, to ensure that a

disabled child receives a FAPE, parents and school district collaborate to

36

develop an IEP). As such, Plaintiff’s argument that NCISD failed to develop

an appropriate IEP for J.T. fails.

8. Procedural Obligations

Lastly, Plaintiff argues NCISD violated numerous procedural

obligations and provides a list of nine alleged violations. (ECF No. 49 at 21).

Specifically, Plaintiff argues NCISD committed the following violations: (1)

reviewing the FIIE outside of the ARD committee meeting; (2) predetermining

J.T. did not meet the criteria for special education services; (3) instructing

Plaintiff to “agree” to the ARD committee’s decision; (4) failing to include

Plaintiff’s advocate and/or attorney on communications; (5) failing to hold an

MDR prior to placing J.T. in DAEP; (6) holding an MDR without J.T.’s mother,

advocate, or attorney; (7) “[f]ailing to have all required members present for a

resolution session;” (8) failing to respond to Plaintiff’s request for an IEE; and

(9) telling Plaintiff she needed to get J.T. an ADHD diagnosis. (Id.). Most of

these “violations” have already been addressed by this Court. To the extent

the “violations” were not specifically addressed by the Court, Plaintiff fails to

provide evidence or authority that these violations resulted in J.T. being

denied a FAPE. The Court finds Plaintiff’s argument that NCISD violated

numerous procedural obligations fails.

37

ii. Section 504 and the ADA

NCISD also seeks summary judgment on Plaintiff’s claims for violations

of Section 504 and the ADA. (ECF No. 46 at 27). Plaintiff’s Section 504 and

ADA claims stem from and are synonymous with the IDEA claims. (See ECF

No. 16 at ¶¶ 49–56). Plaintiff alleges NCISD failed to reasonably accommodate

Plaintiff’s disability to ensure a FAPE. (Id. at ¶ 55). Further, Plaintiff’s

arguments regarding the Section 504 and ADA claims are the same arguments

Plaintiff presented for the IDEA claim.7 (See ECF No. 55 at 23–25; see also

ECF No. 69 at 5–6).

In the Fifth Circuit, issue preclusion applies when the legal standards

underlying the IDEA, the ADA, and Section 504 claims are not “significantly

different.” Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir. 2005).

“Issue preclusion or collateral estoppel is appropriate when: (1) the identical

issue was previously adjudicated; (2) the issue was actually litigated; and (3)

the previous determination was necessary to the decision.” Id.

Having already resolved the IDEA claims in NCISD’s favor, the Court

finds that Plaintiff cannot bring redundant claims under Section 504 and the

ADA. See M.V. b/n/f/ J.C. v. Conroe Indep. Sch. Dist., No. 18-cv-401, 2018

7 For example, Plaintiff argues NCISD failed to complete an FIIE for Plaintiff, failed

to evaluate Plaintiff in all areas of suspected disability, and made its own predetermination

as to Plaintiff. (See ECF No. 55 at 23–25).

38

WL 4564948, at *7 (S.D. Tex. Sep. 24, 2018) (“Resolving the IDEA claims in a

school district’s favor precludes a plaintiff’s resort to redundant claims under

the ADA and § 504.”) (citing Ind. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562

(8th Cir. 1996)); see also R. R. by J. R. v. Min. Wells Indep. Sch. Dist., No. 24-

11074, 2025 WL 2543998, at *1 (5th Cir. Sep. 4, 2025) (affirming summary

judgment in favor of a school district on a student’s ADA and Section 504

claims where the district court found the claims were issue precluded because

they “stem[med] from” and were “synonymous” with the student’s IDEA

claims); W.H. by & through Larry G. v. Fort Bend Indep. Sch. Dist., No. 4:24-

cv-1515, 2025 WL 2147067, at *20 (S.D. Tex. July 29, 2025) (finding Section

504 claim failed as a matter of law where there was a “connection” between an

IDEA claim and Section 504 claim such that if the IDEA claim failed, the

Section 504 claim would also fail).

In addition, Plaintiff’s Section 504 and ADA claims fail even if the Court

evaluated the claims under the newly clarified deliberate indifference

standard. Previously, to survive summary judgment on a Section 504 or ADA

claim in the educational context, a plaintiff would have to provide evidence of

a school district exhibiting bad faith or gross misjudgment. See D.H.H. by Rob

Anna H. v. Kirbyville Consol. Indep. Sch. Dist., No. 20-40315, 2021 WL

4948918, at *2 (5th Cir. Oct. 22, 2021) (citing D.A. ex rel. Latasha A. v. Houston

39

Indep. Sch. Dist., 629 F.3d 450, 455 (5th Cir. 2010) (“We concur that facts

creating an inference of professional bad faith or gross misjudgment are

necessary to substantiate a cause of action for intentional discrimination under

§ 504 or ADA against a school district predicated on a disagreement over

compliance with IDEA.”)). However, in A. J. T. by & through A. T. v. Osseo

Area Schs., Indep. Sch. Dist. No. 279, 605 U.S. 335 (2025), the Supreme Court

“rejected the heightened ‘bad faith and gross misjudgment’ standard . . . [and]

held ‘that ADA and Rehabilitation Act claims based on educational services

should be subject to the same standards that apply in other disability

discrimination contexts.’” W.H., 2025 WL 2147067, at *20 (quoting A. J. T.,

605 U.S. at 345). Thus, the appropriate standard is now deliberate

indifference. Id. (citing A. J. T., 605 U.S. at 345).

The Fifth Circuit describes deliberate indifference as a “high bar” that

requires a showing that the challenged action be “clearly unreasonable in light

of the known circumstances.” Id. (first quoting Sanches v. Carrollton-Farmers

Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011) and then quoting

Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999)). The Supreme

Court and the Fifth Circuit “recognize that in ruling on a motion for summary

judgment, a district court can determine, as a matter of law, that a party was

40

not deliberately indifferent.” I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360,

370 (5th Cir. 2019).

Here, there is no evidence to suggest it was “clearly unreasonable” for

NCISD to find Plaintiff was not eligible for special education. In opposition,

Plaintiff does not address whether NCISD was deliberately indifferent and

instead argues a deliberate indifference standard should not apply. (ECF No.

69 at 4). Plaintiff then focuses her response on how there is a question of

material fact as to whether NCISD intentionally discriminated against

Plaintiff. (Id. at 5–6). As discussed, the appropriate standard for the Court to

consider is deliberate indifference. W.H., 2025 WL 2147067, at *20 (citing A.

J. T., 605 U.S. at 345).

Based on the foregoing, the Court finds there is no genuine dispute of

material fact as to whether NCISD was deliberately indifferent. As such,

Plaintiff’s Section 540 and ADA claims fail, and the Court recommends

NCISD’s motion for summary judgment be granted as to these claims.

c. The State Defendants’ Motion for Summary Judgment (ECF No.

47)

The State Defendants seeks summary judgment on Plaintiff’s IDEA,

Section 504, and ADA claims. (ECF No. 47 at 16–22).

Plaintiff’s IDEA claim against the State Defendants is based on her

allegations against NCISD. (See ECF No. 54 at 9–21). Plaintiff argues the

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State Defendants were aware that (1) NCISD failed to evaluate Plaintiff in all

areas of known or suspected disabilities (id. at 10–11); (2) NCISD failed to

timely conduct an FBA and develop a BIP (id. at 11–12); (3) NCISD

predetermined Plaintiff did not meet special education eligibility (id. at 12–

14); (4) NCISD failed to respond to Plaintiff’s request for an IEE (id. at 14–15);

(5) NCISD was using Response to Intervention strategies8 (id. at 15–17); and

(6) NCISD violated its procedural obligations (id. at 17–20).

Because this Court has already addressed each of these arguments and

found that NCISD did not violate IDEA, the Court finds the State Defendants

are entitled to summary judgment on Plaintiff’s IDEA claim as a matter of law.

Heather, 2021 WL 1216883, at *11 (“[B]ecause there was no actionable denial

of IDEA services by HISD and Pearland ISD, and no actionable violation by

HISD and Pearland ISD of their Child Find obligations under the IDEA, there

is no viable claim against TEA and summary judgment in TEA’s favor is

warranted.”).

Regarding Plaintiff’s Section 504 and ADA claims, the State Defendants

argue Plaintiff cannot raise a material fact question as to whether Plaintiff has

a disability. (ECF No. 47-1 at 18–22). First, as discussed, to the extent

8 Plaintiff mentions in her Motion for Judgment on the Administrative Record that

NCISD “repeatedly ignored that none of the general ‘Response to Intervention’ strategies had

helped and the Student’s behavior was getting worse.” (ECF No. 49 at 13). Plaintiff provides

no argument or authority as to how this was an IDEA violation.

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Plaintiff’s Section 504 and ADA claims are based on NCISD’s alleged IDEA

violations, those claims are subject to issue preclusion. See Ashley G. v.

Copperas Cove Indep. Sch. Dist., No. 6:19-cv-420, 2021 WL 1840910, at *12

(W.D. Tex. May 7, 2021), aff’d sub nom. Ashley G. as Next Friend of M.G. v.

Copperas Cove Indep. Sch. Dist., No. 21-50437, 2022 WL 797416 (5th Cir. Mar.

15, 2022). Second, Plaintiff only provides conclusory arguments in response to

the State Defendants’ motion. Specifically, Plaintiff states the “record

demonstrates significant impairment with respect to Student’s academic

achievement and education” and that there is a question as to whether Plaintiff

“is a qualified individual with a disability.” (ECF No. 54 at 21). Plaintiff may

not rely on “conclusory allegations, unsubstantiated assertions, or only a

scintilla of evidence” to create a genuine dispute of material fact sufficient to

survive summary judgment. Freeman v. Tex. Dep’t of Criminal Justice, 369

F.3d 854, 860 (5th Cir. 2004).

As such, the Court finds the State Defendants are entitled to summary

judgment on Plaintiff’s Section 504 and ADA claims as a matter of law.

IV. Conclusion

Based on the foregoing, the Court RECOMMENDS NCISD’s Motion for

Summary Judgment (ECF No. 46) be GRANTED, State Defendants’ Motion

for Summary Judgment (ECF No. 47) be GRANTED, State Defendants’ Third

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Motion to Dismiss (ECF No. 48) be GRANTED IN PART as to Plaintiffs

claims against the Commissioner in his individual capacity and DENIED IN

PART as to the State Defendants’ standing and ripeness arguments, and

Plaintiffs Motion for Judgment on Administrative Record against NCISD

(ECF No. 49) be DENIED.

The Clerk shall send copies of this Memorandum and Recommendation

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

written objections thereto 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 on February 26, 2026.

Richard W. Bennett

United States Magistrate Judge

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