Lisa M. v. Leander Independent Sch Dist

Case: 18-50160 Document: 00514958346 Page: 1 Date Filed: 05/15/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 15, 2019

No. 18-50160

Lyle W. Cayce

Clerk

LISA M., as parents/guardians/next friends of J.M., a minor individual with a

disability; KENNETH M., as parents/guardians/next friends of J.M., a minor

individual with a disability,

Plaintiffs - Appellees

v.

LEANDER INDEPENDENT SCHOOL DISTRICT,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before KING, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

When J.M. started fourth grade, his parents asked Leander Independent

School District to evaluate him for special education. The District spent weeks

analyzing J.M.’s educational profile and determined that he needed special

education. Shortly afterwards, following a private staff meeting, the District

changed its position. J.M.’s parents pursued administrative relief. A Special

Education Hearing Officer found that the school district was right the first

time. On appeal, in a comprehensive opinion, the district court also concluded

that J.M. was eligible for special education. We affirm.

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BACKGROUND 1

Kindergarten Through Beginning of Fourth Grade

When J.M. was in second grade at Ronald Reagan Elementary School in

the Leander Independent School District (the “District”), he experienced

challenges with writing and classroom behavior. The District provided

accommodations through Section 504 of the Rehabilitation Act (“Section 504”).

By April of second grade, J.M. had been diagnosed with Attention Deficit

Hyperactivity Disorder (“ADHD”) and Developmental Coordination Disorder

(“DCD”). For the following year and a half, J.M.’s parents did not request

services beyond Section 504.

Shortly before the start of J.M.’s fourth grade year, in August 2015,

J.M.’s parents requested that J.M. be evaluated for special education and

related services under the Individuals with Disabilities Education Act

(“IDEA”). The District refused on the basis that J.M.’s Section 504

accommodations were sufficiently addressing his needs. 2

One month later, a private neuropsychologist recommended that J.M. be

considered for special education and diagnosed him with a Specific Learning

Disability (“SLD”) with impairment in written expression. After that, the

District agreed to evaluate him.

IDEA Evaluation Procedures, Generally

Under the IDEA, a school district “shall conduct a full and individual

initial evaluation . . . before the initial provision of special education and

related services to a child with a disability.” 20 U.S.C. § 1414(a)(1)(A). This

evaluation is called the “Full and Individual Evaluation,” or “FIE.” The FIE

1 The following facts are undisputed unless otherwise specified.

2 The IDEA and Section 504 share a complex relationship. “In short, the IDEA

guarantees individually tailored educational services, while [Section 504] promise[s] non-

discriminatory access to public institutions.” Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 756

(2017). But there is “overlap in coverage.” Id.

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must consist of procedures “to determine whether a child is a child with a

disability [as defined by the IDEA]” and “to determine the educational needs

of such child.” 20 U.S.C. § 1414(a)(1)(C). Each of those determinations is crucial

because eligibility for IDEA services is a two-pronged inquiry: (1) whether the

child has a qualifying disability, and (2) whether, by reason of that disability,

that child needs IDEA services. 20 U.S.C. §§ 1401(3), 1414(d)(2)(A). 3

When “appropriate,” as part of the FIE, the school district is required to

perform a “[r]eview of existing evaluation data” (“REED”). 20 U.S.C.

§ 1414(c)(1). The REED must include “evaluations and information provided

by the parents,” “current classroom-based, local, or State assessments, and

classroom-based observations,” and “observations by teachers and related

services providers.” Id.

“Upon completion of the administration of assessments and other

evaluation measures[,] the determination of whether the child is a child with

a disability . . . and the educational needs of the child shall be made by a team

of qualified professionals and the parent of the child.” 20 U.S.C. § 1414(b)(4).

Texas, by statute, has named that team the “admission, review, and dismissal,”

or “ARD” committee. 19 Tex. Admin. Code § 89.1040(b). In making its

eligibility determination, the ARD committee must “[d]raw upon information

from a variety of sources, including aptitude and achievement tests, parent

input, and teacher recommendations, as well as information about the child’s

physical condition, social or cultural background, and adaptive behavior.” 34

C.F.R. § 300.306(c)(1)(i).

3 There is a relevant sub-prong under the first prong. A “qualifying disability” (first

prong) is defined to include an “other health impairment” (“OHI”), which is defined to include

ADHD. Regulations elaborate that an OHI (such as ADHD) must not only be diagnosed, but

also must “adversely affect[] a child’s educational performance.” 34 C.F.R. § 300.8(c). The

District concedes that J.M.’s OHI did so.

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“If a determination is made that a child has a disability and needs special

education and related services, an [individualized education program] must be

developed for the child.” Id. § 300.306(c)(2); see also 20 U.S.C. § 1414(d)(2)(A).

The “individualized education program” (“IEP”) is a “written statement” that

outlines how special education and related services will be delivered to the

child. 20 U.S.C. § 1414(d)(1)(A). The school district’s mandate to design and

deliver an IEP falls under its broader statutory obligation to furnish a “free

appropriate public education” (“FAPE”) to all IDEA-eligible students. 20

U.S.C. § 1412(a)(1); see also Honig v. Doe, 484 U.S. 305, 311 (1988) (describing

an IEP as the “primary vehicle” for implementing a FAPE).

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.” 34 C.F.R. § 300.507(a). An informal resolution meeting must

follow. 34 C.F.R. § 300.510-512. If disagreement persists, complainants may

pursue relief in an administrative due process hearing before an impartial

Special Education Hearing Officer (“SEHO”). 34 C.F.R. § 300.510-512. Appeals

may be taken to federal district court. 34 C.F.R. § 300.516.

J.M.’s Initial Evaluation

Those basic steps were followed in this case. In October 2015, the District

scheduled a REED meeting and advised J.M.’s parents that the District was

considering an FIE. At the same time, the District implemented a “response to

intervention process” (“RTI”), which is a general—not special—education

methodology that offers tiers of progressively intensified support depending on

a student’s response to instruction. See Genna Steinberg, Amending § 1415 of

the IDEA: Extending Procedural Safeguards to Response-to-Intervention

Students, 46 Colum. J.L. & Soc. Probs. 393, 395 (2013). 4

4 The United States Office of Special Education Programs (“OSEP”) has clarified that

“RTI strategies cannot be used to delay or deny the provision of an [FIE].” Memorandum from

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The District formally issued a REED for J.M. on the same day the REED

meeting was held: October 9, 2015. In the REED report, one of J.M.’s teachers

commented that he was a “rock star,” “very bright,” and “fun to watch and

teach.” But the REED also documented a teacher’s observation that J.M.’s “fine

motor skills” were at the “lower end of average” and that even when J.M. took

his ADHD medication, his ability to “[maintain] an organized notebook” was

“significantly below his peers.” Teachers also expressed concern that J.M. had:

“difficulty producing written work, poor attention and concentration,

excessively high/low activity level, difficulty following directions, [and]

difficulty staying on task.” Furthermore, the REED reported parental

observations that J.M. was “flipping numbers and letters” and that he was

having “melt downs” when feeling overwhelmed. The REED concluded that

J.M. “appear[ed] to have one or more conditions which directly affect[ed] [his]

ability to benefit from the educational process.” It advised that “[a]dditional

data [were] needed to determine whether the student [needed] special

education and related services.”

On the same day the REED was issued, the District sought consent from

J.M.’s parents to undertake an FIE. The consent form explained, “We want to

do a Full and Individual Evaluation of your [child] for the following [reason]:

[T]he [RTI] team noted that while [J.M.] has made some progress with these

interventions in place, he had not progressed at an expected rate.” The form

noted that the District rejected the option of continuing general education

interventions because J.M. “continu[ed] to struggle.” J.M.’s parents consented

to the FIE.

On November 18, 2015, the District convened another REED meeting.

The notes from that meeting reflect “[t]eacher and parent concerns” with

Melody Musgrove, Director, OSEP, to the State Directors of Special Education (Jan. 21,

2011), https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf.

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respect to “written expression.” The notes also state that J.M.’s “work habits”

had “change[d]” insofar as he was “not completing work” and making “errors

he typically did not make.” J.M.’s mother described how J.M. was “distressed

about the writing demands at school” and that he “beg[ged] to stay home” from

school due to stomach pain. This REED updated the October REED by adding

that J.M. should undergo an emotional and behavioral evaluation.

The District completed its FIE on January 4, 2016. The report outlined

J.M.’s talents and difficulties, which the District has characterized as a “varied

academic profile.” J.M. was reported to have “average or near average abilities

in the areas of Basic Reading, Reading Fluency, Reading Comprehension,

Math Calculation, Math Reasoning, Oral Expression, and Listening

Comprehension” but “apparent deficits in Written Expression.” The FIE also

explained that J.M. “display[ed] a tendency toward inattentiveness to a

significant degree across all settings.” The FIE concluded with a section called

“Recommendations to the ARD Committee.” That section included a finding

that J.M. met eligibility criteria for IDEA services as a student with an SLD

in the area of written expression and with the “Other Health Impairment”

(“OHI”) of ADHD. Finally, the FIE included a few specific recommendations

for the IEP.

On January 16, 2016, J.M.’s parents received an email introduction from

Amy Stringer, who explained, “I will be [J.M.]’s tracking teacher in special

education.” She referenced “paperwork coming home with [J.M.]” that included

a draft IEP. The draft IEP proposed “20 minutes per day per 5 day week” of

special education instruction in writing as well as the related service of

occupational therapy.

ARD Committee Meetings and Eligibility Determinations

Nine days later, the District held J.M.’s first ARD committee meeting.

The team discussed concerns with J.M.’s academics. By that point, he had

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failed all his December 2015 benchmark tests, scoring 57% on math, 45% on

reading, and 30% on writing. His teachers described these scores as “extreme”

and “shock[ing].” One of J.M.’s teachers later testified that she was “very

surprised” by his benchmark performance because the results were “much,

much lower than . . . what we see as his ability in the class.” The team also

discussed J.M.’s strengths, noting that even some of his writing scores were

“not uncommon” for fourth graders and that his disruptive and unfocused

behaviors were often “re-directable.”

After approximately three and a half hours of discussion, the ARD

committee formalized its determination that J.M. was eligible for special

education. The committee memorialized its agreement in a document titled

“Individualized Education Program (IEP),” which certified that J.M. met the

criteria for OHI and SLD and, “by reason of those disabilities,” had a “need for

special education and related services.” The document stated, “No [a]dditional

evaluation is needed.”

The “IEP” document also delineated a “Schedule of Services” for J.M.,

which were proposed to take effect the following day and continue for one

calendar year. The “Schedule of Services” increased the amount of specialized

assistance from the draft IEP’s twenty minutes per day to thirty minutes per

day. It added assistive technology as a related service additional to

occupational therapy. At the end of the ARD committee meeting, J.M.’s

mother, Lisa M., declined to sign the “Schedule of Services” because she wanted

to discuss its details with her husband, who had been unable to attend.

J.M.’s parents and the District offer conflicting interpretations of what

happened next, but the following facts are undisputed.

The District’s minutes of the January 25 meeting ended with the

following notes: “Assurances given. Parents/district agree with IEP,” “Another

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meeting was scheduled for Feb. 5 . . . if needed,” “Parents/district adjourned in

agreement.”

On February 3, 2016, Lisa M. sent an email to the District stating:

After reviewing the FIE and the IEP for [J.M.], we have decided to

disagree with both. We do agree to the initiation of Special

Education services and the eligibility of OHI and SLD ([just not]

to the quality/quantity of all the individual evaluations). Please let

us know what our next steps will be, and note that Jana Palcer [a

parent advocate] will be attending the 2.5.16 ARD for our support.

Shortly after sending that email, Lisa M. received a call from someone in the

District rescheduling the February 5 meeting to February 23.

On February 11, the District produced an “Addendum” to the January 4

FIE confirming that J.M. was eligible for special education. The Addendum

reflected that an “Other Health Impairment Form” had been received from one

of J.M.’s doctors, which “[n]oted functional implications of limited alertness

manifesting as lack of attention and concentration.”

Sometime between the first ARD committee meeting (on January 25)

and the reconvened meeting (on February 23), District staff held a “systematic

review,” also called a “staffing,” at which the District’s outside counsel was

present. J.M.’s parents were not invited. The record does not clearly reflect how

long this staffing lasted but a witness for the District testified that the typical

staffing lasts “between an hour and two.”

At the February 23 reconvened ARD meeting, the District informed

J.M.’s parents of the District’s new position that J.M. was not eligible for

special education.

The parties diverge over what exactly happened at the staffing, and why

the District’s position changed. We will summarize each party’s version.

The District describes the staffing as a “very typical procedure” designed

“to review the issues and think about what could be done differently, if

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anything.” The District explains that, in the course of this routine re-

evaluation, staff realized that “J.M. already was accessing his education and

making grade level progress in the general education environment”; therefore,

according to the District, staff decided to revise the District’s position.

In contrast, J.M.’s parents accuse District superiors of “coach[ing]” the

teachers to a finding of no-eligibility through the use of this “District-only

secret meeting.” 5 Regardless, it is undisputed that the District reconvened the

ARD committee meeting on February 23 and, at that time, informed J.M.’s

parents that the District had determined J.M. was not eligible for special

education.

Remainder of Fourth Grade

J.M. finished fourth grade with only Section 504 accommodations—no

IDEA support. The District emphasizes that he “earned all As and Bs in his

classes, had no discipline referrals, and interacted appropriately with his

same-aged peers.” J.M.’s parents counter that J.M. “complained of stomach

aches” throughout the year, which demonstrated his “stress level [at] school.”

Lisa M. also recalls that he “was sent home very frequently, more than once or

twice some weeks.”

Litigation History

Shortly after J.M.’s parents received notice that the District considered

J.M. ineligible for special education, they requested a due process hearing

before an SEHO. Their complaint alleged, in relevant part, that the eligibility

5 Disability rights advocates, as amici, characterize the event as an example of a school

district taking “extraordinary measures” to prevent a student with a disability from receiving

special education. Brief for Disability Rights Texas and Decoding Dyslexia Texas as Amicus

Curiae at 16-20. They cite recent findings from the United States Department of Education

that school districts including Leander have taken targeted actions to decrease the number

of students who qualify for special education. Id. at 6 (citing Letter from Ruth E. Ryder,

Acting Director, OSEP, to Mike Morath, TEA Commissioner (Jan. 11, 2018),

https://tea.texas.gov/WorkArea/DownloadAsset.aspx?id=51539620527).

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reversal decision was substantively incorrect. The District denied the

allegation, essentially arguing that J.M. was “making academic, behavioral,

and social progress in the general education setting without need for

specialized instruction under the IDEA.”

After a two-day, 20-hour hearing at which fifteen witnesses testified, the

SEHO produced a 44-page decision that ruled for J.M.’s parents on the

eligibility issue.

The SEHO found a “shocking difference” in the opinions expressed by

teachers and District staff at the January ARD committee meeting as

compared with the February meeting. He determined that the statements

made at the January meeting were “more credible” than those made at the

February meeting. And he concluded that “[t]he evidence establishes a

reasonable presumption that District personnel at some level intervened with

[J.M.’s] teachers . . . , either directing or training them to a finding of no

eligibility in the February ARDC meeting.” The SEHO ordered the District to

convene an ARD committee meeting and “revise the existing IEP as was

planned” for the February ARD committee meeting.

Pursuant to the IDEA, 20 U.S.C. § 1415(i)(3)(B), J.M.’s parents filed a

district court complaint to recover attorneys’ fees. The District answered with

a general denial and a counterclaim challenging the SEHO’s findings of fact,

conclusions of law, and relief ordered with respect to the eligibility issue. The

parties filed cross-motions for judgment on the administrative record. Ruling

for J.M.’s parents, the district court agreed with the SEHO that J.M. met IDEA

eligibility criteria.

The District now appeals the district court’s decision. The District

concedes that J.M. was a student with a qualifying disability under the IDEA

but disputes that J.M. needed special education.

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STANDARDS OF REVIEW

The district court’s review of the SEHO’s determination is “virtually de

novo.” Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993).

That is, “[a]lthough the district court is to give ‘due weight to the hearing

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

based on a preponderance of the evidence.’” Dallas Indep. Sch. Dist. v. Woody,

865 F.3d 303, 309 (5th Cir. 2017) (quoting Cypress-Fairbanks Indep. Sch. Dist.

v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997)). Under 20 U.S.C. §

1415(i)(2)(C), a district court must “receive the records of the administrative

proceedings” and, “basing its decision on the preponderance of the evidence, . .

. grant such relief as the court determines is appropriate.”

“Accordingly, in IDEA proceedings, summary judgment is not directed to

discerning whether there are disputed issues of fact, but rather, whether . . .

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

educational needs have been appropriately addressed.” Seth B. ex rel. Donald

B. v. Orleans Parish Sch. Board, 810 F.3d 961, 967 (5th Cir. 2016) (internal

citations omitted).

On appeal, we review the district court’s decision as a “mixed question of

law and fact.” R.P. ex rel. R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801,

808 (5th Cir. 2012). “Mixed questions should be reviewed under the clearly

erroneous standard if factual questions predominate, and de novo if the legal

questions predominate.” Seth B., 810 F.3d at 967 (quotation omitted). Within

that analysis, the district court’s underlying findings of fact receive clear error

deference. R.P., 703 F.3d at 808. Under the clear error standard, we will not

reverse the district court’s findings unless we are “left with a definite and firm

conviction that a mistake has been committed.” Houston Indep. Sch. Dist. v.

V.P. ex rel. Juan P., 582 F.3d 576, 583 (5th Cir. 2009) (quotation omitted).

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Because “Congress left the choice of educational policies and

methods . . . in the hands of state and local school officials,” the role of the

judiciary under the IDEA is “purposefully limited.” White ex rel. White v.

Ascension Parish Sch. Board, 343 F.3d 373, 377 (5th Cir. 2003) (quoting Flour

Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 693 (5th Cir. 1996)).

DISCUSSION

The only issue before us is whether J.M. needed special education. 6 At

the threshold, however, we must address whether to review the eligibility

determination considering the events that transpired afterwards (that is, with

the benefit of hindsight) or whether, instead, we should consider it only with

the information contemporaneously possessed by the eligibility decision-

makers.

Whether to Assess Eligibility in Hindsight or as

Contemporaneous Decision-Makers

In D. L. by & through J.L. v. Clear Creek Indep. Sch. Dist., we explained

that the eligibility question on appellate review is whether a student had a

“present need for special education services,” such that the reviewing court

should not “judge a school district’s determination in hindsight.” 695 F. App’x

6 J.M.’s parents argue that the District is judicially estopped from asserting that J.M.

is ineligible for special education. “[T]he estopped party’s position must be clearly

inconsistent with its previous one, and . . . that party must have convinced the court to accept

that previous position.” Gabarick v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 553 (5th Cir. 2014)

(quotations omitted). The estoppel issue is forfeited because this is the first time the District’s

allegedly inconsistent positions are being challenged. Huffman v. Union Pac. R.R., 675 F.3d

412, 418 (5th Cir. 2012). “Only in an egregious case will we accept a judicial estoppel

argument first raised on appeal that applies to a party allegedly taking inconsistent positions

in the district court.” Id. Far from egregious, there is no inconsistency here. During

administrative proceedings, J.M.’s parents challenged the District’s evaluations as

procedurally deficient. The District responded that it would “defend” its assessments in that

respect. The District’s endorsement of its assessments was plainly limited to procedural

compliance, not substantive outcome. Since the February ARD committee meeting, the

District has consistently maintained that J.M. was ineligible for special education.

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733, 738 (5th Cir. 2017), as revised (July 31, 2017) (per curiam). 7 Today, we

reiterate that reasoning and determination.

While judicial review unavoidably looks backward, our task is to assess

eligibility with the information available to the ARD committee at the time of

its decision. An erroneous conclusion that a student is ineligible for special

education does not somehow become acceptable because a student

subsequently succeeds. Nor does a proper finding that a student is ineligible

become erroneous because the student later struggles. Subsequent events do

not determine ex ante reasonableness in the eligibility context.

We are not alone in this approach. The Ninth Circuit has held that

review of a school district’s eligibility determination should be assessed “at the

time of the child’s evaluation and not from the perspective of a later time with

the benefit of hindsight.” L.J. by & through Hudson v. Pittsburg Unified Sch.

Dist., 850 F.3d 996, 1004 (9th Cir. 2017). As L.J. put it, “We judge the eligibility

decision on the basis of whether it took the relevant information into account,

not on whether or not it worked.” Id.

Our sister circuits are split on whether courts can consider hindsight

evidence in a different context—when assessing the appropriateness of an IEP.

Compare R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 187 (2d Cir. 2012)

(disallowing use of “evidence that [a] child did not make progress under the

IEP in order to show that [the IEP] was deficient from the outset”); with M.S.

ex rel. Simchick v. Fairfax County Sch. Board, 553 F.3d 315, 327 (4th Cir. 2009)

(“[W]e have concluded that, in some situations, evidence of actual progress may

be relevant to a determination of whether a challenged IEP was reasonably

calculated to confer some educational benefit.”); see also Dennis Fan, No IDEA

7 “An unpublished opinion issued after January 1, 1996 is not controlling precedent,

but may be persuasive authority.” Thomas v. Tregre, 913 F.3d 458, 464 n.4 (5th Cir. 2019),

as revised (Jan. 25, 2019) (quoting Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006)).

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What the Future Holds: The Retrospective Evidence Dilemma, 114 Colum. L.

Rev. 1503 (2014) (describing various circuit positions); Maggie

Wittlin, Hindsight Evidence, 116 Colum. L. Rev. 1323, 1386-88 (2016) (same).

In IEP appropriateness cases, this circuit embraces hindsight evidence.

See V.P., 582 F.3d at 588 (5th Cir. 2009) (calling demonstrated academic and

non-academic benefits “one of the most critical factors” in the analysis of

whether a school district has provided a FAPE).

But IEP appropriateness is an inquiry distinct from IDEA eligibility. In

our court, we consider four factors in assessing the appropriateness of an IEP:

“(1) the 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.” R.P., 703 F.3d at 809 (citing Michael F., 118 F.3d

at 253). Eligibility, by contrast, requires that a student “(1) have a qualifying

disability and (2) “by reason thereof, need [ ] special education and related

services.” Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 382

(5th Cir. 2007) (quoting 20 U.S.C. § 1401(3)(A)).

The IEP appropriateness inquiry in this circuit considers staff

implementation and student performance over a period of time whereas

eligibility is a snapshot of the student’s condition at the time of the eligibility

determination. 8 At the eligibility determination moment, therefore,

incorporating events that occur afterwards would be incongruous and, indeed,

can only invite Monday morning quarterbacking.

8 As J.M.’s counsel put it at oral argument, “When you’re looking at eligibility, you’re

looking [at] a point in time,” but challenges to the content of an IEP are about

“implementation,” that is, “how it’s going, are people doing what they’re supposed to, is the

child getting sufficient services?”

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Having established the temporal framework of review, we turn to the

merits of J.M.’s eligibility.

Relevant Law

The IDEA deems eligible for special education a “child with a disability,”

which is defined as a child:

(i) with [a qualifying disability including] other health

impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and

related services.

20 U.S.C. § 1401(3)(A).

Here, the District concedes that J.M. had the qualifying disabilities of

ADHD, DCD, and SLD in the area of Written Expression. 9 The contested issue

is the second prong: need. What it means to need special education and related

services is not clear. Indeed, one scholar has described this area of law as a

“mess.” Mark C. Weber, The IDEA Eligibility Mess, 57 Buff. L. Rev. 83, 84

(2009). We begin by unpacking the terms “special education” and “related

services.” Then we will turn to “need.”

The IDEA defines “special education” as “specially designed instruction

. . . to meet the unique needs of a child with a disability.” 20 U.S.C. § 1401(29).

Regulations elaborate that “[s]pecially designed instruction means

adapting . . . the content, methodology, or delivery of instruction [to] address

the unique needs of the child that result from the child’s disability [and to]

ensure access of the child to the general curriculum, so that the child can meet

the educational standards within the jurisdiction of the public agency that

apply to all children.” 34 C.F.R. § 300.39(b)(3).

9As mentioned above, under federal regulations implementing the IDEA, an “[o]ther

health impairment” is defined to include ADHD as long as it “[a]dversely affects [the] child’s

educational performance.” 34 C.F.R. § 300.8(c)(9). Because the District has conceded that

J.M. has a qualifying disability in the form of ADHD, it has conceded that J.M.’s ADHD

adversely affects his educational performance.

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The IDEA defines the term “related services” to mean “transportation,

and such developmental, corrective, and other supportive services (including .

. . occupational therapy. . .) as may be required to assist a child with a disability

to benefit from special education.” 20 U.S.C. § 1401(26)(A). If a child “needs a

related service and not special education, the child is not [eligible].” 34 C.F.R.

§ 300.8(a)(2)(i).

“[N]either the IDEA nor federal regulations” define what it means to

“need” special education and related services. J.D. ex rel. J.D. v. Pawlet Sch.

Dist., 224 F.3d 60, 66 (2d Cir. 2000). See also Robert A. Garda, Jr., Untangling

Eligibility Requirements Under the Individuals with Disabilities Education

Act, 69 Mo. L. Rev. 441, 491 (2004) (noting that the “IDEA and its regulations

provide no clues whatsoever to the definition of ‘need,’” and describing a

“barren” legislative history on the matter). We have had few opportunities to

address the question. 10

In Alvin Independent School District v. A.D. ex rel. Patricia F., we held

that courts must consider the “unique facts and circumstances” of each case,

including “parent input, and teacher recommendations, as well as information

about the child’s physical condition, social or cultural background, and

adaptive behavior,” rather than only grades and test scores. 503 F.3d at 383

(citing 34 C.F.R. § 300.306(c)(1)(i)). We also clarified that “need” should not be

measured according to “whether or not [a student’s] potential could be

maximized via special education services.” Id. at 384 n.9.

In D.L., we confirmed that, while grades “are a consideration in

determining whether special education services are necessary,” they should

not be the exclusive one. 695 F. App’x 733, 737–38 (citing A.D., 503 F.3d at

10 During oral argument, counsel for the District suggested that there are no Fifth

Circuit cases specifically examining what it means for a student to “need” special education

as opposed to Section 504 accommodations. That appears to be correct.

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384). We also stated that there is “no presumption in favor of outside

evaluators” over teachers or other school personnel. Id. at 737.

Application

As is par for the course in contentious IDEA cases, the record includes

evidence that supports each side. J.M. failed his mid-year benchmark tests,

but some of his writing scores were apparently “not uncommon” for fourth

graders. J.M. displayed “poor attention and concentration,” “excessively

high/low activity level,” “difficulty following directions,” and “difficulty staying

on task,” but his behaviors were sometimes “re-directable.” J.M.’s

neuropsychologist reported that J.M.’s “fine motor skills [were] impaired, even

with consistent intervention over a number of years,” but her report suggested

some non-IDEA accommodations. J.M. would apparently “[act] fine at school”

but then “[come] home and [fall] apart” due to academic distress.

As highlighted by the district court and the SEHO, what is factually

unique about this case is how the District interpreted available information.

From the fall of 2015 through January 2016, the District diligently reviewed

hundreds of pages of teacher observations, clinical evaluations, progress

reports, parent input, and even a self-evaluation from J.M. By January 16, the

District had determined that J.M. needed special education, as evidenced by

an email from special education teacher Amy Stringer to Lisa M. that stated,

“I will be [J.M.]’s tracking teacher in special education.” That the email

referenced a draft IEP coming home with J.M. is further evidence that the

District believed J.M. was eligible at that time.

The District formalized its eligibility finding at the January 25 ARD

committee meeting, which lasted three and a half hours. Nine District staff

members participated, including a dyslexia specialist, an occupational

therapist, an education diagnostician, an assistant principal, a special

education teacher, two general education teachers, and a licensed specialist in

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student psychology. After detailed discussion of J.M.’s skills and challenges,

the ARD committee concluded—unequivocally—that J.M. needed special

education. All that remained was to negotiate the details of the IEP. On

February 11, the District produced an Addendum to the FIE specifically

reaffirming the District’s view that “the student need[ed] special education

services.”

Twelve days later, after a private meeting, the District reversed its

position. No meaningful new information had been acquired about J.M.

According to the District, staff at this meeting determined that J.M. was

already accessing his education and making appropriate progress in the

general education environment. 11

On administrative review, the SEHO characterized the District’s

difference in positions as “shocking” and was unconvinced by the District’s

explanation. After hearing live testimony from fifteen witnesses and reviewing

the REED, the FIE, the FIE Addendum, and the ARD committee meeting

transcripts, the SEHO found that the January ARD committee meeting was

“more credible” than the February one. The SEHO made 84 additional findings

of fact relating to J.M.’s educational profile and the District’s eligibility

assessment. In conclusion, the SEHO determined, J.M. was eligible for special

education as of January 26, 2016.

11 The District correctly asserts that it was required to prepare for the reconvened

ARD committee meeting during the ARD committee recess, pursuant to the Texas

Administrative Code. See 19 Tex. Admin. Code § 89.1050(g) (emphasis added) (“When mutual

agreement about all required elements of the IEP is not achieved, the parent who disagrees

must be offered a single opportunity to recess and reconvene the ARD committee

meeting . . . . During the recess, the ARD committee members must consider alternatives,

gather additional data, prepare further documentation, and/or obtain additional resource

persons who may assist in enabling the ARD committee to reach mutual agreement.”). But

this language instructs that the staffing should have focused on “reach[ing] mutual

agreement” which, in this case, would have meant adjusting the specific services proposed

under the IEP—not rescinding J.M.’s eligibility altogether—because Lisa M. made clear that

she agreed with the District that her son should receive special education.

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Importantly, the district court afforded “due weight to the hearing

officer’s findings,” while ultimately reaching “an independent decision based

on a preponderance of the evidence.” Michael F., 118 F.3d at 252 (quotation

omitted). Specifically, the district court “review[ed] the differences in opinion

expressed at the two [ARD committee] meetings” and considered the “SEHO’s

credibility determinations” in concluding that the January ARD

interpretations were the more compelling evidence of J.M.’s needs. The district

court further found that “the testimony of J.M.’s teachers and of the District

specialists at the January 25 [ARD committee] meeting support[ed] the

District’s initial conclusion” that J.M. needed special education.

The clear error standard precludes reversal unless the court is “left with

a definite and firm conviction that a mistake has been committed.” V.P., 582

F.3d at 583 (quoting Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir.

2006)).

We are far from that. The district court’s findings are well-supported,

reasonable, and correct.

Turning first to the documentary evidence, we note that the FIE, the

written summary of the January ARD meeting, the FIE Addendum, and

transcript testimony at the due process hearing presented various reliable

indicators of J.M.’s struggle in the general education environment as of

January 26, 2016. For a few examples: J.M. failed all his December 2015

benchmark tests; 12 according to multiple teachers, J.M. struggled with

“attention to task” due to “avoidance behaviors”; J.M.’s classroom teacher

12 Nothing in our opinion today should be read to foreclose the possibility that a

student who demonstrates some academic success might still need special education. Indeed,

federal regulations specifically provide that IDEA eligibility must be granted to a disabled

student “who needs special education and related services, even though the child has not

failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R.

§ 300.101(c)(1).

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observed that he had “difficulty producing written work”; J.M. displayed

“excessively high/low activity level”; according to J.M.’s pediatrician, J.M.

experienced “functional limitations of limited alertness manifesting as lack of

attention and concentration”; according to Lisa M., J.M. suffered stomach pain

due to distress over academics. That J.M. demonstrated cognitive processing

ability and benefitted from Section 504 accommodations does not change the

analysis.

We next turn to a category of evidence that is less immediately apparent

from the face of the record: credibility. Credibility is often an important factor

in IDEA cases. Sensibly so, as most judges lack the expertise to determine first-

hand whether a child needs special education as opposed to a different kind of

accommodation. See White, 343 F.3d at 377 (“Our role under the IDEA is

purposefully limited.”).

After a typical trial, the clear-error standard affords “greater deference”

to findings “based upon determinations of credibility.” Guzman v. Hacienda

Records & Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (internal

quotation omitted). “[T]he trial judge’s credibility determinations are due this

extra deference because only [that judge] can be aware of the variations in

demeanor and tone of voice that bear so heavily on the listener’s understanding

of and belief in what is said.” Id. (quoting Estate of Lisle v. Comm’r, 541 F.3d

595, 601 (5th Cir. 2008)).

The same logic applies to the due process hearing context, which

resembles a bench trial in many respects. See Amanda J. ex rel. Annette J. v.

Clark Cty. Sch. Dist., 267 F.3d 877, 889 (9th Cir. 2001) (recognizing, in light of

“[t]raditional notions of the deference owed to a fact finder,” that a hearing

officer “who receives live testimony is in the best position to determine issues

of credibility”); D.B. ex rel. C.B. v. Houston Indep. Sch. Dist., No. CIV.A. H-06-

354, 2007 WL 2947443, at *11 (S.D. Tex. Sept. 29, 2007) (“The hearing officer,

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who hears live testimony and can observe witness demeanor, is in the best

position to determine issues of credibility.”). The “greater deference” afforded

to credibility determinations post-trial is due in the IDEA context as well.

The District urges that we should decline to credit the district court’s

deference to the SEHO’s findings because the SEHO misunderstood applicable

law in two key respects. We are unpersuaded.

First, the District accuses the SEHO of laboring under the

misimpression that whether a student’s disability “adversely affects”

educational performance is part of the “need” inquiry, as opposed to the

“qualifying disability” prong. But the SEHO properly understood that it is part

of the latter.

To be sure, at one point in the due process hearing, the SEHO suggested

to a witness, “Let’s talk about it as . . . [if the] disabling condition is the first

prong and the second prong is that it adversely affects educational

performance.” But, in context, that comment by the SEHO was intended to

parse out the two elements of the “qualifying disability” prong. The comment,

by its own terms, served as a conversation-framing technique rather than an

announcement of law. No other statement during the hearing or in the SEHO’s

written opinion suggests that the SEHO misunderstood the elements of the

eligibility inquiry. See Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 394 n.4

(5th Cir. 2012) (one erroneous citation of the legal standard following “nearly

two pages of discussion correctly articulating” the standard and preceding “a

28-page description of the factual record, a 50-page summary of the parties’

legal and factual briefing and 16 pages of the court’s substantive analysis” was

merely a “passing error”).

Second, the District argues that the SEHO interpreted the “need”

standard to mean that special education is necessary if it would maximize a

student’s potential. See A.D., 503 F.3d at 384 n.9 (explaining that “need” should

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not be measured according to “whether or not [a student’s] potential could be

maximized via special education services”). To that end, the District quotes the

SEHO’s observations that “it is not too late to assist [J.M.] in overcoming his

special needs,” that “educational need is learning how to better process his

ideas and put them into writing,” and that special education will provide J.M.

a “greater ability” to do so.

The District reads the words “overcoming,” “better,” and “greater” to

mean that the SEHO believed that J.M. already knew how to process his ideas

and put them into writing. But that is not a disqualifier for special education;

students with some baseline writing ability may still need special education.

Moreover, the District’s interpretation deconstructs the SEHO’s language too

finely. The SEHO made its position clear that J.M. meaningfully struggled in

general education. Also, the SEHO endorsed the proposition that “Special

Education is not appropriately used for a student to achieve his maximum

potential,” emphasizing that “Special Education will only provide [J.M.] with

the same opportunity to succeed as other students, not at all assistance to meet

his maximum potential.”

The SEHO properly understood and applied the law.

Finally, the District suggests that “J.M. cannot ‘need’ special education

because [J.M.’s parents] have not specified what such special education would

consist of.” We reject that argument. A party urging eligibility need not

unilaterally identify what the IEP will entail. To the contrary, in Texas, the

ARD committee is charged with preparing the IEP. Michael F., 118 F.3d at

247.

In sum, the record confirms the district court’s finding that J.M. met

eligibility criteria for special education.

AFFIRMED.

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