Houston Independent School District v. Bobby R.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 98-20546

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HOUSTON INDEPENDENT SCHOOL DISTRICT,

Plaintiff-Counter Defendant-

Appellee,

VERSUS

BOBBY R.; JOYCE R.; and CAIUS R.,

Defendants-Counter Claimants-

Appellants.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

January 20, 2000

Before HIGGINBOTHAM and SMITH, HISD to make certain changes in Caius’s

Circuit Judges, and FALLON, District education program. On appeal from the

Judge.* TEA’s decision, the district court decided in

favor of HISD. Concluding that the district

JERRY E. SMITH, Circuit Judge: provided a free appropriate public education in

compliance with the IDEA, we affirm.

Caius R., a minor child, by and through his

parents, Bobby R. and Joyce R., initiated this I.

action against the Houston Independent Caius attended school in HISD for

School District (“HISD”) in a claim before a approximately seven years before being

Texas Education Agency (“TEA”) hearing removed t o private school in 1997. Within

officer. The TEA determined that HISD had HISD, he struggled from the beginning, in

not provided Caius a “free appropriate public large part because of dyslexia. In kindergarten

education” as required by the Individuals with and first grade, he experienced difficulties in

Disabilities Education Act, 20 U.S.C. § 1400, phonics. Although in 1992 HISD

et seq. (“IDEA”), and the officer ordered recommended that he repeat the first grade,

preliminary evaluations of his need for special

education indicated that he did not qualify for

*

District Judge of the Eastern District of these special services.

Louisiana, sitting by designation.

During the summer preceding the 1992-93 modified tests, and taped lectures.

school year, Caius’s parents sought an

independent evaluation of his learning abilities. Before the 1995-96 year, HISD and Caius’s

After conducting a battery of tests, a parents engaged in extensive discussions

University of Houston researcher found that regarding the school he would attend.

Caius suffered from dyslexia and attention Because it was determined that he learned

deficit disorder. Caius then enrolled in a more readily when information was presented

private school for a substantial portion of the in a multisensory fashion, his parents sought

1992-93 year. Although HISD had placement at an HISD school that could

recommended repeating first grade, Caius was administer an Alphabetic Phonics (“AP”)

placed in a second grade class. program. Although an alternative placement

could not be established, HISD agreed to

In March 1993, Caius returned to HISD at provide an itinerant teacher to instruct Caius at

Mitchell Elementary and, in the fall of 1993, Mitchell Elementary until a permanent teacher

began third grade there. After experiencing skilled in AP could be found.

more difficulties, he was referred in December

1993 for a special education evaluation, which Caius began the AP program in the fall of

revealed deficiencies in reading, oral language, 1995. Although his instructors changed, the

and written language skills. Pursuant to the AP program was provided throughout the

IDEA, the HISD convened an Admission, 1995-96 school year. Nonetheless, his parents

Review, and Dismissal (“ARD”) Committee in continued to criticize HISD’s implementation

January 1994 to determine the appropriate of several modifications to the IEP.

means of addressing Caius’s learning disability.

Having found that his was speech

handicapped, the ARD Committee drafted an

Individual Education Plan (“IEP”) that called

for ten hours of reading and language resource

placement and one hour of speech therapy per

week. Caius continued under the January

1994 IEP during the remainder of the 1993-94

school year.

At the beginning of the 1994-95 year,

HISD placed Caius in the fourth grade. HISD

experienced some difficulties during that year

in implementing the speech therapy provision

of the IEP, so from January 18, 1995, through

May 17, 1995, a speech therapist was not on

staff at Mitchell Elementary. To compensate

Caius for the lost speech therapy, HISD

authorized extended-year services for him.

Consequently, during the summer following

the 1994-95 school year, Caius received

twenty-five hours in compensatory speech

therapy.

In the meantime, however, Caius’s parents

v o i c e d o b j e c ti o n s r e g a r d i n g t h e

implementation of his IEP. In particular, they

complained of HISD’s failures to institute IEP

modifications such as highlighted texts,

2

During the spring and fall of 1996, the motions for summary judgment, held that the

ARD Committee convened to develop an IEP TEA had erred in its analysis of whether Caius

for Caius’s sixth grade year. Under the IEP, had indeed received a “free appropriate public

he was placed at Codwell Elementary. The education” as required by the IDEA. The

plan included seven modifications to his court reasoned that he had shown

educational program: modified tests, taped improvement in most areas of study and

texts, highlighted texts, extended time for therefore had received an educational benefit

assignments, shortened assignments, calculator in accordance with the goals of the IDEA.

use, and taped assignments. Furthermore, The court then granted HISD’s motion for

because no teacher at Codwell was trained in summary judgment and denied Caius’s cross

AP techniques, HISD began a search for motion for summary judgment. The court also

another AP instructor for Caius. dismissed Caius’s counterclaim for

reimbursement for the costs of the private

Despite its efforts, for two months Caius compensatory services.

did not receive AP training. During that time,

his parents refused to accept the compensatory II.

AP services offered by HISD. Through their Caius challenges the determination that

complaints to HISD, they also questioned the HISD provided him with a “free appropriate

amount of progress Caius was making under public education” in accordance with the

the IEP and the extent to which his teachers IDEA, 20 U.S.C. § 1400, et seq. Specifically,

were implementing the modifications to the he points to HISD’s failure to provide a

August 1996 IEP. speech therapist for a substantial portion of the

1994-95 term, its failure to provide an AP

In October 1996, Caius’s parents sought program for approximately two months during

administrative review of the IEP. Following the beginning of the 1996-1997 year, and its

two days of hearings in February 1997, the general failures consistently to provide

TEA hearing officer filed written findings of highlighted and taped texts in accordance with

fact and conclusions of law, deciding that the the IEP.

reading and language goals set forth in Caius’s

IEP’s were “reasonable and calculated to HISD responds first by acknowledging the

provide . . . an educational benefit.” But she failures summarized by Caius and by noting

also found that HISD had failed to implement, that, as a result, there are no genuine issues of

“consistently or appropriately,” an AP material fact that would preclude summary

program, IEP modifications, or speech judgment. HISD disagrees, however, with the

therapy. The hearing officer thus concluded legal conclusions to be drawn from those

that HISD’s failures in these areas had failures. It argues that, rather than holding

deprived Caius of a “free appropriate public that any failure to implement an element of an

education” under the IDEA. IEP amounts to denial of a free appropriate

public education under the IDEA, we should

Following entry of the hearing officer’s look to the overall educational benefit received

decision, the parties failed to negotiate a new by the child and to whether the IEP was

IEP for Caius for the 1997-98 school year. In substantially or materially implemented.

response, his parents sought private

compensatory services during the summer of A.

1997, and, before the start of the 1997-98 The IDEA is designed to encourage state

year, his parents withdrew him from HISD and and local education agencies to extend services

placed him at a private school at their expense to children that are deemed learning disabled.

and without HISD’s approval. Under the statute, to receive federal funding,

a state must establish special education and

HISD appealed the TEA hearing officer’s related services that “are provided in

decision to the district court, which, on cross conformity with the individualized education

3

program required under section 1414(a)(5) of court shall receive the records of the

this title.” 20 U.S.C. § 1401(17)(D) (emphasis administrative proceedings, shall hear

added). The term “individualized education additional evidence at the request of a party,

program” is defined as and, basing its decision on the preponderance

of the evidence, shall grant such relief as the

a written statement for each child with a court determines is appropriate.” 20 U.S.C.

disability developed in any meeting by a § 1415(e)(2). As additional protection for the

representative of the local educational parents and the disabled child, “during the

agency . . . which statement shall includeSS pendency of any proceedings conducted

pursuant to this section, unless the State or

(A) a statement of the present levels of local educational agency and the parents or

educational performance of such child, guardian otherwise agree, the child shall

remain in the then current educational

(B) a statement of annual goals, placement of such child.” 20 U.S.C.

including short-term instructional § 1415(e)(3)(A).

objectives,

The Department of Education has

(C) a statement of the specific interpreted the IDEA to require each public

educational services to be provided to agency to “(1) Provide special education and

such child, and the extent to which such related services to a child with a disability in

child will be able to participate in regular accordance with the child’s IEP; and (2) Make

educational programs, . . . a good faith effort to assist the child to achieve

the goals and objectives or benchmarks listed

(E) the projected date for initiation and in the IEP.” 34 C.F.R. § 300.350(a) (emphasis

anticipated duration of such services, added). That interpretation provides,

and however, that the IDEA “does not require any

agency, teacher, or other person be held

(F) appropriate objective criteria and accountable if a child does not achieve the

evaluation procedures and schedules for growth projected in the annual goals and

determining, on at least an annual basis, benchmarks or objectives.” Id. § 300.350(b).

whether instructional objectives are

being achieved. B.

The “free appropriate public education”

20 U.S.C. § 1401(20). requirement of the IDEA requires tailoring to

the unique needs of the handicapped child by

The crafting of an IEP is subject to means of an IEP. See Board of Educ. v.

extensive procedural and substantive Rowley, 458 U.S. 176, 181 (1992).

requirements. For instance, the IDEA “Noticeably absent from the language of the

provides procedural safeguards that allow the statute is any substantive standard prescribing

parents an opportunity to challenge the the level of education to be accorded

establishment or implementation of the IEP in handicapped children.” Id. at 189. After a

an “impartial due process hearing which shall lengthy analysis of the statute, its purposes,

be conducted by the State educational agency and of the legislative intent with respect to the

. . . as determined by State law.” 20 U.S.C. provision of educational services to disabled

§ 1415(b)(2). In Texas, the hearing is children, the Rowley Court held that an

conducted before the TEA. “‘appropriate education’ is provided when

personalized educational services are

The IDEA also provides for civil actions provided.” Id. at 197.

and jurisdiction in federal district court

“without regard to the amount in controversy. Accordingly, the IDEA “generates no

In any action brought under this paragraph the additional requirement that the services so

4

provided be sufficient to maximize each child’s whether the IEP was “reasonably calculated to

potential.” Id. at 198. This, the Court opined, enable [Caius] to receive an educational

would be “further than Congress intended to benefit.”

go.” Id. at 199. Instead, the IDEA is aimed at

providing disabled children “access” to a

public education, though that access must still

“be sufficient to confer some educational

benefit upon the handicapped child.” Id. at

200 (emphasis added). In the end, then, “the

‘basic floor of opportunity’ provided by the

Act consists of access to specialized

instruction and related services which are

individually designed to provide educational

benefit to the handicapped child.” Id. at 201.

Next, the Court noted that while the

determination whether children are receiving

sufficient educational benefits to satisfy the

requirements of the IDEA “presents a more

difficult problem,” a court’s inquiry in suits

brought under § 1415(e)(2) (as here) should

be analyzed under a two-pronged framework.

“First, has the State complied with procedures

set forth in the Act? And second, is the [IEP]

developed through the Act’s procedures

reasonably calculated to enable the child to

receive educational benefits?” Id. at 206-07

(emphasis added). The Court noted that under

the second prong, “the achievement of passing

marks and advancement from grade to grade

will be one important factor in determining

educational benefit.” Id. at 207 n.28.

Caius does not challenge the IEP or any

other HISD actions on the basis of the first

prong of the Rowley inquirySSthat is, he does

not assert that HISD did not comply with the

lengthy procedures prescribed by the IDEA.

And it is doubtful that such a challenge would

have any merit.1 Therefore, the issue is

1

See Decision of the Hearing Officer,Docket

No. 089-SE-1096, noting:

(...continued)

In this case, issues related to any procedural requests in both programming and

complaints were withdrawn prior to the placement decisions were often accepted by

beginning of the hearing. Indeed, the the ARD Committee. The IEP’s at issue

evidence showed that Caius’ parents were were the result of collaborative efforts

active participants in each and every ARD between parents and school, and I find,

meeting and that their recommendations and therefore, that the district did comply with

(continued...) the procedural requirements of the IDEA.

5

III. reviewed for clear error.” Id. A party

In Cypress-Fairbanks Indep. Sch. Dist. v. attacking the appropriateness of an IEP

Michael F., 118 F.3d 245, 247-48 (5th Cir. established by a local educational agency bears

1997), we summarized the standard under the burden of showing why the IEP and

Rowley. An IEP resulting placements were inappropriate under

the IDEA. Id.

need not be the best possible one, nor

one that will maximize the child’s A.

educational potential; rather, it need In Cypress-Fairbanks, we set forth four

only be an education that is specifically factors that serve as an indication of whether

designed to meet the child’s unique an IEP is reasonably calculated to provide a

needs, supported by services that will meaningful educational benefit under the

permit him “to benefit” from the IDEA. These factors are whether

instruction. In other words, the IDEA

guarantees only a “basic floor of (1) the program is individualized on the

opportunity” for every disabled child, basis of the student’s assessment and

consisting of “specialized instruction and performance;

related services which are individually

designed to provide educational (2) the program is administered in the

benefit.” Nevertheless, the educational least restrictive environment;

benefit to which the Act refers and to

which an IEP must be geared cannot be (3) the services are provided in a

a mere modicum or de minimis; rather, coordinated and collaborative manner by

an IEP must be “likely to produce the key “stakeholders”; and

progress, not regression or trivial

educational advancement.” In short, the (4) positive academic and non-academic

educational benefit that an IEP is benefits are demonstrated.

designed to achieve must be

“meaningful.” 118 F.3d at 253.

(Internal citations omitted.) Correctly, HISD argues in its brief, and the

district court noted, that only the last two of

When a district court reviews a state these factors are seriously in question. First,

hearing officer’s decision in an impartial due Caius does not argue that the IEP was not

process hearing under the IDEA, it must individualized in accordance with the first

receive the record of the administrative factor; indeed, such an argument would seem

proceedings and is then required to take unavailing where the TEA hearing officer had

additional evidence at the request of any party. already concluded that the IEP was

20 U.S.C. § 1415(e)(2). It must accord “due “reasonably calculated to provide Caius with a

weight” to the hearing officer’s findings, see meaningful educational benefit.” Second, the

Rowley, 458 U.S. at 206, but must ultimately “least-restrictive-environment” factor should

reach an independent decision based on a be viewed in light of the IDEA’s “preference

preponderance of the evidence.” Cypress- for ‘mainstreaming’ handicapped

Fairbanks, 118 F.3d at 252. Thus, the district c h i l d r e n S S e d u c a t i n g t h e m w it h

court’s review is “virtually de novo.” Id. nonhandicapped children.” Rowley, 458 U.S.

at 181 n.4. Because Caius was

Our review of the district court is a mixed “mainstreamed” and does not now challenge

question of fact and law that is reviewed de the IEP on the ground that it was not

novo, but the underlying fact-findings, “such as implemented in the least restrictive means, this

findings that a disabled student obtained second factor is likewise not at issue.

educational benefits under an IEP, are

6

The third and fourth factors, however, call response in noting that, “as long as there is no

for a more thorough analysis. The change in the overall amount, some

requirement that the educational services be adjustments in scheduling [IEP] services

provided in a “coordinated and collaborative should be possible (based on the professional

manner by the key stakeholders” presents a judgment of the service provider) without

more difficult issue. On the one hand, the holding another IEP meeting.” 34 C.F.R. part

district court concluded that HISD met this 300, app. C, question 51 (1997). Accordingly,

requirement because “HISD provided the the court disagreed with the TEA hearing

modifications and services outlined in Caius’ officer and concluded that the compensatory

IEP, allowed Caius’ parents to air grievances, speech therapy services were sufficient.

and regularly conducted ARD Committee

meetings to evaluate Caius’ progress under the This conclusion is correct, particularly in

IEP.” While the court opined that the “most light of the Department of Education’s

significant failing” in this area involved the fact interpretive response. Moreover, with respect

that for substantial portions of the 1994-95 to the speech therapy and AP services, the

academic year a speech therapist was not district court invited us to consider Gillette v.

available at Mitchell Elementary, the court Fairland Bd. of Educ., 725 F. Supp. 343 (S.D.

nonetheless felt that the compensatory services Ohio 1989), rev’d on other grounds, 932 F.2d

offered the following summer were sufficient 551 (6th Cir. 1991), in which the court held

to remedy any shortcoming. And with respect that a local education agency’s failure to

to HISD’s inability to provide an AP program provide all the services and modifications

for two months during the beginning of the outlined in an IEP does not constitute a per se

1996-97 year, HISD argues that the school violation of the IDEA. In Gillette, the court

offered compensatory AP services (which found that the local agency had provided a free

Caius’s parents refused) until the school could appropriate education when “significant

hire an AP teacher. The court agreed with provisions of the IEP were followed,” even

HISD with respect to the AP services, though though the petitioner had clearly demonstrated

it did not carefully analyze the issue. that portions of the IEP were not implemented

at all. See id. at 347-48 (emphasis added).

On the other hand, the hearing officer The same can be said hereSSi.e., the significant

concluded that HISD had failed on both provisions of Caius’s IEP were followed, and,

accounts. That is, she concluded that the as a result, he received an educational benefit.2

compensatory speech therapy services

provided by HISD did not cure its earlier

failure to implement that portion of the IEP The approach taken in Gillette seems

and that the HISD had agreed to provide AP reasonable, particularly in light of Rowley’s

services and had failed to do so in a consistent flexible approach. Therefore, we conclude

and proper manner. These conclusions would that to prevail on a claim under the IDEA, a

support Caius’s argument that HISD failed to party challenging the implementation of an IEP

provide the services in a “coordinated” must show more than a de minimis failure to

manner, as would his assertion that HISD did implement all elements of that IEP, and,

not provide highlighted or taped texts in a

consistent manner.

2

While consideration of any educational benefit

The district court’s primary reason for received might arguably seem to conflate the third

overturning the hearing officer’s conclusions and fourth prongs of the Cypress-Fairbanks

seems to be its belief that local school agencies inquiry, determination of what are “significant”

should retain some flexibility in scheduling provisions of an IEP cannot be made from an

services and, when necessary, providing exclusively ex ante perspective. Thus, one factor

compensatory services. The court pointed to to consider under an ex post analysis would be

a Department of Education interpretive whether the IEP services that were provided

actually conferred an educational benefit.

7

instead, must demonstrate that the school improvements are not trivial, and we cannot

board or other authorities failed to implement say that the district court committed “clear

substantial or significant provisions of the IEP. error” in its factual determination that Caius

This approach affords local agencies some received an educational benefit from his IEP.

flexibility in implementing IEP’s, but it still See Cypress-Fairbanks, 118 F.3d at 252.

holds those agencies accountable for material

failures and for providing the disabled child a The affidavits submitted by Caius do not

meaningful educational benefit. change our conclusion. First, Nancy

LaFevers, a licensed language pathologist who

The fourth and final factor under Cypress- examined Caius on two occasions, opined that

Fairbanks is whether there have been his progress was slower than what she would

demonstrable academic and non-academic have expected under “appropriately

benefits from the IEP. The district court implemented [AP] training” and that his

framed the issue under this inquiry as what progress in word attack skills was de minimis.

should be the appropriate manner for Even accepting that characterization of his

measuring academic advancement under the improvement in word attack, it is not

IDEA. Caius claimed that a child’s percentile necessary for Caius to improve in every area to

scores were the best measure of academic obtain an educational benefit from his IEP.

performance, while HISD argued that passing

marks and advancement from grade to grade Second, Caius submitted an affidavit from

were sufficient indicia to satisfy the IDEA. Donna Weinberg, the owner and director of

And on this dispute the district court is correct the privately-run Cliffwood School where he

that a disabled child’s development should be began attending in 1997. She noted only that

measured not by his relation to the rest of the Caius has progressed “nicely” since his arrival

class, but rather with respect to the individual at Cliffwood School and that he was adjusting

student, as declining percentile scores do not to another way of approaching his studies.

necessarily represent a lack of educational These statements say nothing about his

benefit, but only a child’s inability to maintain development or lack thereof, during his years

the same level of academic progress achieved

by his non-disabled peers. As with the

argument in Rowley that an IEP must (...continued)

maximize a child’s potential, the argument that written language improved from the 1.5 grade level

Caius should not experience declining to 1.9; (3) passage comprehension went from 1.7 to

percentile scores may be an unrealistic goal, 2.2; (4) calculation rose from 1.4 to 3.3; (5)

and it is a goal not mandated by the IDEA. applied problems improved from 2.0 to 3.0; (6)

dictation went from 1.6 to 1.8; (7) writing

Instead, the district court was correct to improved from 1.4 to 2.6; (8) word identification,

focus on the fact that Caius’s test scores and basic reading skills, and letter identification rose

grade levels in math, written language, passage from 1.8 to 2.1; and (9) word attack rose from the

comprehension, calculation, applied problems, level of a seven-month kindergarten student to

dictation, writing, word identification, broad grade level 1.8.

reading, basis reading cluster and proofing From 1995 to 1996, Caius showed the

improved during his years in HISD.3 These following improvements: (1) Broad reading

increased from 2.1 to 3.3; (2) word identification

from 2.1 to 2.8; (3) passage comprehension from

3

HISD employed the widely utilized and 2.2 to 3.9; (4) math from 3.1 to 4.4; (5) calculation

accepted Woodcock Johnson intelligence and from 3.3 to 5.0; (6) applied problems from 3.0 to

achievement test to indicate Caius’s academic 3.6; (7) written language from 1.9 to 2.9; (8)

progress. Caius’s test scores showed the following dictation from 1.8 to 2.8; (9) writing samples from

changes from 1993 to 1995: (1) Math scores 2.6 to 3.3; (10) basic reading cluster from 2.1 to

improved from the 1.7 grade level to 3.1; (2) 2.8; and (11) proofing from 2.3 to 2.6. Only word

(continued...) attack remained the same, at the 1.8 grade level.

8

in HISD, and, as a result, they do nothing to IV.

establish that he did not receive an educational In sum, we find that the IEP was reasonably

benefit from the IEP. calculated to provide Caius a meaningful

educational benefit, in accordance with the

Finally, Caius offered the affidavit of Jean IDEA. Moreover, he received that benefit, as

White, the owner and operator of Educere, demonstrated by his increased test scores in a

where Caius received private tutoring from variety of areas. There is also no evidence that

White in 1997. Again, like Weinberg’s HISD consented to his transfer to private

statements, White’s affidavit does not establish school during the pendency of this appeal.

that Caius received no educational benefit Therefore, the district court was correct in

from HISD. Instead, her affidavit would, at reversing the decision of the hearing officer, in

best, support an argument that the IEP holding that Caius was not denied a “free

developed for Caius did not maximize his appropriate public education,” and in denying

educational potential. But as Rowley held, the Caius’s claims for reimbursement.

IDEA does not require maximization of a

disabled student’s educational potential. AFFIRMED.

There is no genuine issue of material fact

about whether Caius received an educational

benefit from the IEP, as demonstrated by the

objective evidence of increased scores and

grade levels. And because there were no

material issues of fact presented under the

other three Cypress-Fairbanks criteria, the

district court was correct in finding that Caius

received a free appropriate public education in

accordance with the IDEA.

B.

Likewise, the court was correct to reject

Caius’s claims for reimbursement. Although

20 U.S.C. § 1415(e)(3)(A) provides that

“during the pendency of any proceedings

conducted pursuant to this section, . . . the

child shall remain in the then current

educational placement of such child,” “parents

who unilaterally change their child’s placement

during the pendency of review proceedings,

without the consent of state or local school

officials, do so at their own financial risk. If

the courts ultimately determine that the IEP

proposed by the school officials was

appropriate, the parents would be barred from

obtaining reimbursement for any interim period

in which their child’s placement violated

§ 1415(e)(3).” School Committee v.

Department of Educ., 471 U.S. 359, 373-74

(1985). Because HISD did not consent to

Caius’s transfer to private school, the district

court’s dismissal was appropriate.

9