Renee J. v. Houston Indep School District

Case: 17-20750 Document: 00514798253 Page: 1 Date Filed: 01/16/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 16, 2019

No. 17-20750

Lyle W. Cayce

Clerk

RENEE J., as parent/guardian/next friend of C.J., a minor individual with a

disability; CORNELIUS J., as parent/guardian/next friend of C.J., a minor

individual with a disability,

Plaintiffs - Appellants

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The district court ruled in favor of Houston Independent School District

(“HISD”) on multiple claims brought by the Appellants under the Individuals

with Disabilities in Education Act (“IDEA”). We find no procedural or

substantive violations of the law or its implementing regulations. The

judgment is AFFIRMED.

I.

The Appellants, parents of C.J., allege that HISD failed to provide him

with a Free Appropriate Public Education (“FAPE”) as required by the IDEA.

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C.J. is a seventeen-year old male student who has been diagnosed with

Autism, intellectual disabilities including an IQ of 51, and Attention Deficit

Hyperactivity Disorder (“ADHD”). He received no formal diagnosis until he

was twelve years old and no specialized treatment plan until he was fifteen.

He currently reads at a first-grade level. C.J. also has difficulty regulating his

emotions and has allegedly been bullied at school.

C.J.’s Individualized Education Program (“IEP”) for the 2013–14 school

year (his seventh-grade year) revealed that he had not been tested at the

district-wide level since third grade and that his math and reading

comprehension levels were below those of the average second-grader. When

C.J. began eighth grade, however, his district-wide test results from third

grade were again carried over to his IEP. C.J.’s “transition planning” program

(a program required for students receiving IEPs under the IDEA) focused on

preparing C.J. for a career as a police officer—as it did for several years—even

though C.J.’s autism and other learning disabilities render such a career

impossible.

In January 2015, shortly after the beginning of the second semester of

the 2014–15 school year (C.J.’s eighth-grade year), C.J. had an outburst at

home that included repeatedly banging his head and hitting himself in the

face. C.J. told his mother that two of the teacher’s assistants in his classroom

were bullying him and mocking his disabilities.

C.J.’s parents wrote a formal complaint to the principal of C.J.’s school,

and school authorities arranged a meeting the same day. At the meeting, C.J.’s

parents requested homebound instruction for C.J., and school administrators

provided C.J.’s parents with forms to complete that would trigger a formal

investigation. They also provided additional information about homebound

educational services. C.J. ceased attending school altogether a few days later.

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The parties disagree about the events that took place after this meeting.

HISD requires a completed homebound services packet and a physician’s

statement before an Admission, Review, and Dismissal (“ARD”) committee can

meet and recommend homebound services for students with IEPs. HISD

contends that C.J.’s parents delayed filling out the paperwork necessary to

certify his eligibility for homebound care and voluntarily kept C.J. from

attending school. C.J.’s parents characterize these forms as procedural

irrelevancies and instead point to the initial documentation they provided,

which HISD rejected.

C.J.’s parents provided a note from C.J.’s physician on February 5, 2015

stating that C.J. suffered from “severe mental illness” and recommending 2–6

weeks of immediate partial hospitalization, followed by a 6–12-week trial

period of homebound instruction. After receiving the letter, HISD sent a form

to the family’s physician that administrators said was required to trigger an

ARD meeting. Shortly after the form arrived, C.J. underwent an unrelated

surgery that required a week of hospitalization. C.J. remained home from

school after his surgery, but neither his parents nor his physician provided the

requested documents to HISD until mid-April. HISD officials repeatedly

followed up with C.J.’s parents, asking them to return him to school. C.J.’s

parents finally provided an updated letter from his physician on April 10, 2015

stating that C.J.’s risk factors put him at a “moderate” risk for suicide and

again recommending homebound instruction.

HISD held an ARD Committee meeting on April 30 to evaluate C.J.’s

request for homebound instruction. The committee denied the request because

it concluded that C.J. was able to attend school. School administrators

questioned the sincerity of the updated letter, partly because the physician

wrote that he was “told to specify other more severe reasons as to why this

patient required home bound schooling,” and partly because the physician’s

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medical license was previously restricted “due to unprofessional or

dishonorable conduct” likely to deceive, defraud, or injure the public.

C.J. returned to school for one day on May 1, 2015, and his teachers

reported that he appeared happy to be back. Nevertheless, C.J. did not return

to eighth grade after May 1. Overall, C.J. missed almost his entire second

semester of eighth grade.

The ARD committee met on June 11, 2015 and approved C.J.’s promotion

to ninth grade but recommended that he participate in Extended School Year

(“ESY”) classes over the summer. C.J.’s parents were present at meetings

when his eligibility for ESY programming was discussed and were formally

notified by voicemail and email on June 18 that he could begin ESY classes on

June 22. By June 22, however, the summer session was nearly over, and C.J.

was not able to participate in ESY as a result.

C.J. began ninth grade in fall 2015. His attendance was inconsistent and

marked by altercations with other students and multiple stints in full-day

counseling programs instead of classes. C.J.’s teachers reported that he was

making “great progress,” but his advancement was impeded by his infrequent

attendance. In spring 2016, C.J.’s parents hired an independent psychologist

to assess C.J.’s IEP. The family’s psychologist recommended that C.J.’s IEP

include the use of Applied Behavioral Analysis (“ABA”), which is one of several

therapeutic methods of instruction for children with autism. HISD does not

use ABA programs as such, but it does incorporate some ABA methods into its

approach.

C.J., through his parents, filed a request for an administrative due

process hearing under the IDEA on December 8, 2015, alleging that HISD

failed to provide him a FAPE during his eighth and ninth-grade years. A four-

day hearing took place between May 31 and June 6, 2016. The hearing officer

considered the testimony of twenty-one witnesses and approximately 2,800

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pages of exhibits. Both parties submitted written closing arguments. The

hearing officer made credibility determinations to resolve conflicting accounts

provided by C.J.’s parents and school personnel. For example, the hearing

officer concluded that C.J.’s lack of attendance during the spring of 2015 was

caused by his parents’ refusal to send him to school, not by HISD’s failure to

have an appropriate program in place for his education. The hearing officer

ultimately concluded that HISD provided C.J. with a FAPE even though its

performance had been imperfect.

C.J.’s parents sought review of the hearing officer’s decision in federal

district court, but the district court upheld the hearing officer’s determinations

and granted summary judgment to HISD on all counts. C.J.’s parents timely

appealed to this court.

II.

This court “review[s] de novo, as a mixed question of law and fact, a

district court’s decision that a local school district’s IEP was or was not

appropriate . . . .” Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. ex rel.

Barry F., 118 F.3d 245, 252 (5th Cir. 1997) (footnote omitted). As part of that

review, “[t]he district court’s findings of underlying fact, such as findings that

a disabled student obtained educational benefits under an IEP, are reviewed

for clear error.” Id. (footnote omitted). Under clear error review, a factual

finding of the trial judge may be reconsidered when, after reviewing all of the

evidence, this court is “left with the definite and firm conviction that a mistake

has been committed.” Guzman v. Hacienda Records & Recording Studio, Inc.,

808 F.3d 1031, 1036 (5th Cir. 2015) (internal quotation marks and citation

omitted). “[A] party attacking the appropriateness of an IEP established by a

local education agency bears the burden of showing why the IEP and the

resulting placement were inappropriate under the IDEA.” Michael F.,

118 F.3d at 252 (footnote omitted).

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III.

The “IDEA requires states and local educational agencies receiving

federal IDEA funds to make a [FAPE] available to children with certain

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

(en banc). A FAPE includes both “special education” and “related services.”

20 U.S.C. § 1401(9). “‘Special education’ means specially designed instruction

. . . to meet the unique needs of a child with a disability.” Id. at § 1401(29).

“Related services” are services “required to assist a child to benefit from”

instruction. Id. at § 1401(26).

Schools provide students a FAPE based on IEPs unique to each child. Id.

at § 1401(9)(D). An IEP is a “written statement prepared at a meeting

attended by a qualified representative of the school district, a teacher, the

child’s parents or guardians, and when appropriate, the child himself.” Lance

v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 989 (5th Cir. 2014) (quoting

Michael F., 118 F.3d at 247). The “IEP must be drafted in compliance with a

detailed set of procedures . . . emphasiz[ing] collaboration among parents and

educators” and the need for tailoring to the unique needs of the child. Endrew

F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988, 994 (2017).

If a child is unable to attend classes due to his or her disability, the school

district must offer homebound instruction to provide the child with a FAPE.

20 U.S.C. § 1401(25)(A) (stating that special education includes, if necessary,

“instruction conducted . . . in the home”). An IEP must also include “transition

services” designed to “facilitate the child’s movement from school to post-school

activities, including post-secondary education, vocational education,

integrated employment . . . independent living, or community participation.”

34 C.F.R. § 300.43(a).

This court uses a four-factor test established in Michael F. to evaluate

whether an IEP complies with the IDEA. The factors include whether (1) the

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student’s “program is individualized on the basis of the student’s assessment

and performance; (2) the program is administered in the least restrictive

environment; (3) the services are provided in a coordinated and collaborative

manner by the key ‘stakeholders’; and (4) positive academic and non-academic

benefits are demonstrated.” 118 F.3d at 253. This court has “never specified

precisely how these factors must be weighed,” Richardson Indep. Sch. Dist. v.

Michael Z., 580 F.3d 286, 293 (5th Cir. 2009), but it has long held that the

fourth factor is critical. See R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d

801, 813–14 (5th Cir. 2012).

In 2017, the Supreme Court held in Endrew F. that, to meet its

substantive burden under the IDEA, “a school must offer an IEP reasonably

calculated to enable a child to make progress appropriate in light of the child’s

unique circumstances.” 137 S. Ct. at 999. This court recently reaffirmed the

validity of the Michael F. test in light of Endrew F. See E.R. v. Spring Branch

Indep. Sch. Dist., 2018 WL 6187765, -- F.3d -- (5th Cir. Nov. 28, 2018) (per

curiam).

IV.

Appellants essentially raise four claims on appeal. First, HISD’s refusal

to provide ABA services denied C.J. a FAPE by predetermining his treatment

plan instead of developing it according to his unique, individual needs. Second,

HISD denied C.J. a FAPE by failing to provide adequate Prior Written Notice

to C.J.’s parents about his eligibility for summer school classes. Third, HISD

failed to protect C.J. from bullying such that C.J.’s refusal to attend school

amounted to denying him a FAPE (a “school refusal” claim). Finally, HISD

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denied C.J. a FAPE by providing a transition plan that was entirely

inappropriate for his needs and abilities. 1

1. ABA Predetermination

C.J.’s parents and amici contend that HISD’s failure to use ABA

programs denied C.J. a FAPE by predetermining his special education

recommendations instead of considering his unique needs. “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.” Spring Branch Indep. Sch.

Dist., 2018 WL 6187765 at *12 (internal quotation marks and citation

omitted). “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.”

Id. (internal quotation marks and citation omitted). But this court has also

held that “[t]he 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 Parish Sch. Bd., 343 F.3d 373, 380 (5th Cir. 2003) (citations

omitted).

Appellants’ argument is formalistic at best. Both sides agree that

although HISD does not expressly provide Applied Behavioral Analysis, it

incorporates techniques from ABA and other methods into its approach.

Moreover, the district court reviewed the record and concluded that “C.J.’s

teachers, mother, and other participants in [C.J.’s ARD meeting] did discuss

the Texas Autism Supplement requirements.” Renee J. v. Houston Indep. Sch.

Dist., No. 4:16-cv-02828, slip op. at *10 (S.D. Tex. Nov. 1, 2017). The district

1 Appellants also contend that C.J. was denied adequate vision screening and

instruction, but they cast no doubt on the school district’s finding that C.J.’s vision test results

were satisfactory even without glasses.

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court also determined that “[t]he record does not show that C.J.’s parents

specifically asked the District to use Applied Behavioral Analysis in devising

and implementing his Individualized Education Plan.” Id. at 9–10. Thus,

C.J.’s parents cannot meaningfully claim that his IEP was predetermined.

Finally, this court would adopt the problematic role of education

policymaker if it were to dictate which pedagogical methods a school district

must consider and to what degree they must be incorporated on an

individualized, case-by-case basis—an outcome the Supreme Court has

specifically cautioned against. See Endrew F., 137 S. Ct. at 992–93; Bd. of Ed

Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034,

3051 (1982) (“[C]ourts must be careful to avoid imposing their view of

preferable education methods.”). The district court did not err in rejecting this

claim.

2. Prior Written Notice

C.J.’s parents assert that HISD committed a procedural violation of the

IDEA by failing to provide them prior written notice regarding HISD’s

recommendation that C.J. attend ESY classes. The IDEA requires a school

district to provide such notice to parents of children who have IEPs whenever

it proposes or refuses “to initiate or change the identification, evaluation, or

educational placement of the child or the provision of FAPE to the child.”

34 C.F.R. § 300.503(a)(1). Parents must have adequate notice of a school or

school district’s decision before it is implemented. See 34 C.F.R. § 300.503(b).

Even when a procedural violation occurs, however, “procedural defects alone

do not constitute a violation of the right to a FAPE unless they result in the

loss of an educational opportunity.” Spring Branch Indep. Sch. Dist., 2018 WL

6187765 at *9 (internal quotation marks and citation omitted).

HISD held an ARD meeting to discuss C.J.’s IEP on June 11, 2015 and

informed C.J.’s parents on June 18 that C.J. was eligible for ESY and could

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begin on June 22. C.J.’s parents allege that when they contacted the school

that was supposed to provide ESY services, however, the school had no

knowledge of C.J.’s approval and informed them that the ESY term was

already nearly over. C.J.’s parents contend that they were “unsure whether or

not C.J. was being offered ESY services” because the exact details, such as the

location of the classes, were not immediately clear. The failure to

communicate, they allege, did not satisfy the IDEA’s prior written notice

standard.

HISD disputes C.J.’s parents’ version of the facts. HISD alleges that

C.J.’s parents did have adequate notice but simply decided that C.J. would not

participate in ESY classes, just as they had decided that he would not attend

classes for most of the previous semester. The district court and the hearing

officer reviewed the facts and agreed with HISD. Indeed, the record shows

that school administrators made several unsuccessful attempts by email and

phone messages to contact C.J.’s parents and confirm final details of his ESY.

Appellants have not shown clear error in the district court’s finding that

sufficient notice was provided.

3. School Refusal

C.J.’s parents also allege that HISD denied C.J. a FAPE by failing to

convene a timely ARD meeting to address his bullying concerns and by

allowing him to be bullied so extensively that he refused to attend school

altogether. This “school refusal” claim has been recognized as a proper vehicle

for a cause of action under the IDEA by a few courts in other circuits. See, e.g.,

T.K. v. N.Y. City Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016). It is undisputed

that C.J. has gotten into altercations with other students—sometimes C.J.

reacted to statements from those students and sometimes other students

responded to things C.J. said to them. It is also undisputed that C.J. has

experienced bouts of anxiety about attending school because of some of these

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altercations. The parties characterize the school’s response differently,

however. C.J.’s parents argue that the school district did little to prevent

bullying, while the school district points to several offers it made to

accommodate C.J.’s needs and to more than two dozen overtures to C.J.’s

parents attempting to convince them to return him to school.

The credibility assessments of the hearing officer and district court each

resolved the disputes in favor of HISD. From February to June, C.J.’s teacher

communicated with his parents nearly thirty times, attempting to convince

them to return him to school. Administrators arranged for C.J.’s teacher to

meet him at the car when his parents dropped him off and to escort him inside

the school building, so he would feel safe. School officials also offered to allow

C.J. to spend the first hour of the day in the office of student support to ease

his transition to the school environment. These facts belie the parents’ claims

that teachers and school administrators were callous and unresponsive to

C.J.’s fears about bullying. Furthermore, C.J.’s parents admit that C.J. “was

willing to go back to his current school, so the counselor worked with him on

coping skills.”

Perhaps the most significant factual disagreement between the two

sides, however, stems from differing professional opinions about C.J.’s mental

state and his demonstration of Post-Traumatic Stress Disorder symptoms.

C.J.’s doctor initially wrote a letter describing his psychological condition and

recommending homebound instruction on February 2, 2015. Despite district

officials’ repeated requests for more specific information, they did not receive

an updated letter describing C.J.’s more severe symptoms until well over a

month later, on April 10. When officials finally received the necessary

documents, they scheduled an ARD meeting, but by then, C.J. had already

been out of school for most of the semester. On these facts, it is difficult to

conclude that the school district denied C.J. a FAPE.

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The Supreme Court reiterated in Endrew F. that “the question is

whether an IEP is reasonable, not whether the court regards it as ideal.”

137 S. Ct. at 999 (emphasis original) (citation omitted). Considering C.J.’s

parents’ failure to follow up with the requested paperwork for five weeks while

they continued to withhold him from school, and considering further the school

district’s repeated outreach and offers of accommodation, the school district’s

behavior was reasonable. The district court’s ruling rejecting this claim is not

erroneous.

4. Transition Plan

Finally, C.J.’s parents argue that HISD denied C.J. a FAPE by failing to

provide him with an appropriate transition plan. One of the purposes of the

IDEA is “[t]o ensure that all children with disabilities have available to them

a free appropriate public education that . . . prepare[s] them for further

education, employment, and independent living.” 34 C.F.R. § 300.1(a). To that

end, the IDEA requires schools to provide students with disabilities with

meaningful “transition services” to prepare them for adult life to the extent

practicable. 34 C.F.R. § 300.43(a). Those transition services must include

“appropriate measurable postsecondary goals based upon age appropriate

transition assessments related to training, education, employment, and, where

appropriate, independent living skills; and…the transition services (including

courses of study) needed to assist the child in reaching those goals.”

20 U.S.C. § 1414(d)(1)(A)(i)(VIII) (emphases added). C.J.’s parents argue that

HISD’s years-long focus on preparing C.J. for a post-secondary career as a

police officer deprived him of a FAPE, because “[c]hildren with autism do not

grow up to be police officers.”

HISD does not dispute that C.J.’s post-secondary transition goal has

been focused on law enforcement careers since at least 2013, but the school

district explains that his transition plan was nevertheless “specifically

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designed to assist C.J. to develop the skills he needs to successfully transition

to post-secondary life.” HISD contends that focusing on a career as a police

officer was “clearly appropriate” because it was “C.J.’s primary area of

interest.” (One of C.J.’s IEP documents, for example, noted that he was

“interested in a career in law enforcement, such as a police officer, SWAT team

member, or FBI agent.”) C.J.’s transition plan included assignments such as

“research[ing] 3 sub careers” in law enforcement and “identify[ing] 3 work

habits necessary to be successful in the field of law enforcement.” The

transition plan also called for C.J. to conduct online research to learn about “3

colleges that have degree programs in law enforcement/criminal justice.”

But C.J.’s transition plans after he began ninth grade also included

additional, more basic transition goals that were not included in his initial

transition plan. Among those goals were “work[ing] part time while attending

school,” attending “a community college or trade school,” “independently

prepar[ing] for work each day, including dressing, making his bed, making his

lunch, and accessing transportation,” participating “in recreational activities

at the local YMCA,” “making simple meals,” “counting money and making

purchases,” reading bus schedules, and sorting his clothes and doing laundry.

Although it is certainly reasonable to believe that C.J.’s disabilities

render his prospects of becoming a police officer improbable, autism is a

spectrum and so is the set of skills needed for his daily living as well as various

jobs. This court is mindful of its obligation not to stray into the field of

education policymaking and is reluctant to say, as a matter of law, that HISD

was required to communicate a nuanced transition plan in a different way. The

evidence reflected that HISD attempted to collaborate with C.J.’s parents in

preparing the transition plan. Significantly, C.J.’s later transition plans

attempted to engage his principal future employment interest while developing

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basic life skills necessary for post-secondary life. Thus, we affirm the district

court’s decision that C.J.’s transition plan did not deny him a FAPE.

V.

For the foregoing reasons, we AFFIRM the district court’s judgment.

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