C.C. v. Hurst-Euless-Bedford Independent School District
Filing
69
Memorandum Opinion and Order...all relief sought by plaintiff in the complaint is denied; findings decisions and rulings of the SEHO are affirmed. (Ordered by Judge John McBryde on 5/21/2015) (wrb)
U.S. DISTRICT COiiRT
NORTHERN lllSTR.I.CTOFTEXAS
FJLED
IN THE UNITED STATES DISTRICT OURT [
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
MAY 2
~2-'--015--,J
CLF:Ill<, U.S.1ltSTRICTCot:HT
C.C. INDIVIDUALLY, BY AND
THROUGH HIS NEXT FRIENDS,
CHARLES CRIPPS AND KRISTIE
CRIPPS,
Plaintiff,
vs.
HURST-EULESS-BEDFORD
INDEPENDENT SCHOOL DISTRICT,
Defendant.
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NO. 4:14-CV-1042-A
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MEMORANDUM OPINION
and
ORDER
Came on for consideration in the above-captioned action the
complaint of plaintiff, c.c. individually, by and through his
next friends, Charles Cripps and Kristie Cripps, seeking vacatur
of the findings, decisions, and rulings made in the underlying
Due Process Hearing by a Special Education Hearing Officer
("SEHO"), and rendition of judgment in favor of plaintiff as to
the issues presented in that hearing.
Having considered the
complaint, the answer of defendant, Hurst-Euless-Bedford
Independent School District ("the District"), the written
contentions and briefs filed by the parties, the administrative
record, and applicable legal authorities, the court concludes
that the relief sought by plaintiff should be denied, and that
l
I
the findings, decisions, and rulings of the SEHO should be
affirmed.
I.
IDEA statutory Framework
As a condition of the State of Texas's receipt of federal
education funding under the Individuals with Disabilities
Education Act
("IDEA"), the District must
(1) provide each
disabled child within its jurisdictional boundaries a Free
Appropriate Public Education ("FAPE"), and (2) assure that such
education is offered, to the greatest extent possible, alongside
children who are not disabled in the "least restrictive
environment" suitable for the disabled student's needs.
u.s.c.
§§
1412(1) & 1412(5).
20
In order to provide a FAPE to a
student with a disability, the student's education "is required
to be tailored to the unique needs of the handicapped child by
means of an individualized education plan [("IEP")] ." Teague
Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 128
(5th Cir. 1993).
The IEP is prepared at a meeting of the IEP team, which consists
of (1) the student's parents,
teacher of the child,
of the child,
(2) at least one regular education
(3) at least one special education teacher
(4) a representative of the public agency with
appropriate authority,
(5)
"[a]n individual who can interpret the
instructional implications of evaluation results .
2
n
( 6)
"[a]t the discretion of the parent or the agency, other
individuals who have knowledge or special expertise regarding the
child .
C.F.R.
", and (7) where appropriate, the child himself.
§
300.321(a).
34
In Texas, the IEP team is known as the
Admissions, Review, and Dismissal Committee ("ARDC").
R.P. ex
rel. R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 805
n.1 (5th Cir. 2012).
The FAPE, however, "need not be the best possible one, nor
one that will maximize the child's educational potential; rather,
it need only be an education that is specifically designed to
meet the child's unique needs, supported by services that will
permit him to benefit from the instruction."
R.P. ex rel. R.P.,
703 F.3d at 809 (citation and internal quotation marks omitted).
Stated another way, the IDEA guarantees only a "basic floor of
opportunity . .
" for every disabled child, consisting of
"specialized instruction and related services which are
individually designed to provide educational benefit .
"
Board of Educ. of Hendrick Hudson Central Sch. Dist., Westchester
Cnty. v. Rowley, 458 U.S. 176, 201 (1982).
Still, "the
educational benefit to which the IDEA refers and to which an IEP
must be geared cannot be a mere modicum or de minimis; rather, an
IEP must be likely to produce progress, not regression or trivial
3
educational advancement."
R.P. ex rel. R.P., 703 F.3d at 809
(citation and internal quotation marks omitted) .
The IDEA requires any state or local educational agency
receiving funds under the IDEA to "establish and maintain
procedures in accordance with this section to ensure that
children with disabilities and their parents are guaranteed
procedural safeguards with respect to the provision of a free
appropriate public education by such agencies."
1415(a).
20 u.s.c.
§
Such procedural safeguards include allowing parents to
play a significant role in the development of an IEP.
See
Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S.
516, 524 (2007).
such an agency is also required to provide parents with an
opportunity to present complaints "with respect to any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of a
child .
" 20 U.s. C.
§
1415 (b) (6).
[FAPE]
to such
If such complaints cannot
be resolved at the preliminary stage, the parents may proceed to
an impartial due process hearing which is generally limited
substantively to whether the child received a FAPE.
1415 (f) (1) (A)
&
1415 (f) (3) (E) (i).
20 U.S.C.
After parents have exhausted
those administrative procedures, if they are still dissatisfied
with the result, they may bring a civil action in a federal
4
§§
district court, without regard to the amount in controversy.
U.S.C.
§
20
1415 (i) (2) (A).
Additional procedural safeguards are required when a school
district seeks to place a student with a disability in a
Disciplinary Alternative Education Program ("DAEP").
When such
placement is to be for a period exceeding ten school days, the
ARDC must make a manifestation determination, 20 U.S.C.
§
1415(k) (1) (C), which requires a finding as to whether "the
conduct in question was caused by, or had a direct and
substantial relationship to, the child's disability . . . " and
whether "the conduct in question was the direct result of the
local educational agency's failure to implement the IEP."
u.s.c.
§
1415(k) (1) (E).
20
However, no such manifestation
determination is required when a student is sent to a DAEP for
(1) less than ten school days, or (2) less than forty-five school
days for engaging in conduct constituting special circumstances.
20
u.s.c.
§
1415(k)(1)(B)
&
(G).
The same appeals process
described above may also be followed to appeal the manifestation
determination.
II.
Plaintiff's Complaint
Plaintiff initiated this action by filing a complaint on
August 11, 2014, in cause number 4:14-CV-646-A, which contained
5
various causes of action.
On December 24, 2014, the court
severed the instant appeal into the above-captioned action.
Plaintiff's original complaint in this severed appeal action
filed January 5, 2015, asks the court to find that the SEHO erred
in his findings, decisions, and rulings, and that plaintiff is
entitled to damages for injuries allegedly sustained by him and
his parents, punitive damages, and attorney's fees.
III.
Standard of Review
When a federal district court reviews a decision rendered by
a SEHO's in a due process hearing under the IDEA, the court must
accord "due weight" to the SEHO's findings,
but must ultimately
reach an independent decision based on the preponderance of the
evidence.
Rowley, 458 U.S. at 206; Cypress-Fairbanks Indep. Sch.
Dist. v. Michael F. by Barry F., 118 F.3d 245, 252
1997).
(5th Cir.
Accordingly, this court's review of the SEHO's decision
is "virtually de novo."
Michael F., 118 F.3d at 252.
The burden
of proof is on the party challenging the IEP, in this case,
plaintiff, to show why the IEP and resulting placement were
inappropriate under the IDEA.
See Houston Indep. Sch. Dist. v.
Bobby R., 200 F.3d 341, 347 (5th Cir. 2000).
The court's task
"is not to second-guess state and local policy decisions; rather,
it is the narrow one of determining whether state and local
6
school officials have complied with the [IDEA]."
Daniel R.R. v.
State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989).
IV.
Summary Background and Relevant Facts
The following is a summary of pertinent facts established by
the administrative record:
On November 2, 2012, plaintiff and his parents entered into
a mediation agreement with the District while he was a student at
Central Junior High School, a school within the District.
760-764. 1
AR at
As part of the agreement, the District agreed to
conduct a Full and Individual Evaluation ("FIE")
2
to determine
whether plaintiff was eligible for special education services
under the IDEA.
Id. at 760, ,
3.
Plaintiff was also allowed to
transfer to another school within the District, Bedford Junior
High ( "BJH") .
I d.,
, 1.
In anticipation of that transfer,
several meetings among staff, plaintiff's parents, teachers, the
vice principal, and the principal of BJH were conducted to review
'The "AR at _ _" references are to the administrative record that appears on the docket of this action
as items 6 through 15.
'The IDEA requires that an agency governed by the IDEA "shall conduct a full and individual initial
evaluation ... before the initial provision of special education and related services to a child with
disability under [the IDEA]." 20 U.S.C. § 1414(a)(l)(A). In Texas, such full and individual initial
evaluation is known as a FIE.
7
plaintiff's Section 504 Accommodation Plan.'
1314, 1746-1747.
2012.
Id. at 766-767,
Plaintiff's first day at BJH was November 8,
Id. at 1590-1591.
The FIE was completed on or about December 19, 2012, id. at
772-790, 792-795, 797-799, 803-826, and the ARDC met on January
15, 2013, to review i:,id. at 828, 847.
However, the meeting was
recessed and rescheduled for January 31, 2013.
Id. at 847.
On
January 23, 2013, plaintiff's parents and the District entered
into another settlement agreement to resolve the parents'
complaints about alleged violations of the IDEA procedures and
the mediation agreement.
Id. at 880-881.
During the ARDC
meeting on January 31, 2013, the ARDC approved the IEP goals and
objectives, and reviewed and accepted a behavior intervention
plan ("BIP") .'
Id. at 848-850.
The ARDC also approved
instructional accommodations in the form of alternative
3
Section 504 of the Rehabilitation Act "broadly prohibit[s] discrimination against disabled persons in
federally assisted programs or activities." Estate of Lance v. Lewisville lndep. Sch. Dist., 743 F.3d 982,
990 (5th Cir. 2014) (alteration in the original) (citation and internal quotation marks omitted). The
District determined that plaintiff was entitled to accommodation under Section 504 on or about
September 18, 2012, prior to his enrollment at BJH. AR at 750-752. His Section 504 Accommodation
Plan approved the following accommodations: (1) preferential seating, (2) redirection, (3) small group
testing for certain types oftests, (4) provision of teacher's notes when requested by the student, (5) an
extra set of textbooks to keep at home, and (6) access to content mastery. !d.
'When the ARDC determines that a student's behavior impedes his learning or that of others, a BIP is
adopted as part of the IEP. The BIP includes a list of targeted behaviors and a list of procedures,
strategies, and consequences to encourage a student to engage in such behaviors. Plaintiffs BIP targeted
the following behaviors: ( 1) comply with adult directives, (2) bring needed materials for class
participation, and (3) initiate academic tasks independently. AR at 854-860.
8
assignments that required less writing and an alternative way of
dealing with plaintiff's tardiness.
Id. at 849-850.
In
addition, the ARDC also approved occupational therapy services,
social skills training, assistive technology services, and
inclusion support.
Id. at 850.
Special education counseling
services were not recommended because it was determined that
plaintiff should receive such services through his private
therapist.
Id.
The parents waived the waiting period, so the
IEP was implemented beginning February 1, 2013.
876.
Id. at 850,
Vice Principal Damon Emery ("Emery") conducted training on
implementing these accommodations with plaintiff's teachers on
February 1, 4, and 7, 2013.
Id. at 1641-1645.
Plaintiff received a number of disciplinary referrals while
at BJH.
By the time the BIP was implemented, he had already
received a number of lunch detentions, in-school suspensions, at
least one Saturday school detention, and had been placed in a
DAEP for a few days.'
Id. at 1195-1218.
On February 21, 2013,
Emery was investigating an allegation that plaintiff had yelled
'While plaintiff seeks to minimize his disciplinary refeiTals, he does not take issue with any of the
evidence received at the due process hearing that disclosed that plaintiff had serious disciplinary
problems while at BJH and that personnel ofthe District patiently tried to cope with them in an
appropriate manner. Because there apparently is no dispute relative to those matters, the cou1t is not
discussing them in detail, but simply is referring to the pages of the District's responsive brief where they
are discussed. See Resp. Br., Doc. 54 at 6-8, 11.
9
across the classroom a derogatory remark about the size of
another student's penis when he was told that plaintiff had taken
a photo of another student, R.L., sitting on a toilet.
1229, 1651-1652.
Id. at
Emery questioned plaintiff about the incident,
and plaintiff admitted to taking three photos, and showed them to
Emery. Id. at 995-996, 1558.
Plaintiff stated that R.L. wanted
him to take the photos and, in fact, posed for the photos.
at 1463-1465.
Id.
As part of the investigation, Emery questioned
plaintiff, R.L., and three other students who were in the
bathroom at the time of the incident.
Id. at 982-990.
Following the investigation, Emery concluded that
plaintiff's actions were conduct consistent with the felony of
improper photography, see Tex. Penal Code § 21.15, and therefore
plaintiff •on or within 300 feet of school property
"
•engage[d] in conduct punishable as a felony," Tex. Educ. Code§
37.006(a) (2).
AR at 992.
The Texas Education Code mandated a
DAEP placement for such conduct.
37.006(a) (2) (A).
Tex. Educ. Code
§
Furthermore, the student code of conduct
required such DAEP placement be for sixty days.
AR at 970.
Plaintiff's parents were called on February 21, 2013, and
informed of the situation.
Id. at 907, 941
When they arrived,
they emptied plaintiff's locker and took him home.
10
Id. at 942.
That afternoon the principal and Emery held a DAEP placement
conference.
942, 992.
Id.
The parents declined to participate.
Id. at
Plaintiff has not attended a school within the
District since February 21, 2013.
Id. at 1898-1899, 1905, 1927.
On March 4, 2013, the ARDC met to conduct a manifestation
determination review ("MDR").
Id. at 907.
Under 20 U.S.C.A.
§
1415(k) (1) (E), when a school seeks to change the placement of a
student covered by the IDEA for more than ten school days,
the local educational agency, the parent and relevant
members of the IEP Team . . . shall review all relevant
information in the student's' file, including the
child's IEP, any teacher observations, and other
relevant information provided by the parents to
determine (I) if the conduct in question was caused by, or had a
direct and substantial relationship to, the child's
disability; or
(II) if the conduct in question was the direct result
of the local educational agency's failure to implement
the IEP.
20 U.S.C.A.
§
1415(k) (1) (E).
to both questions.
Liva,
6
AR at 908.
The ARDC decision was negative as
Plaintiff's advocate, Debra
objected to this finding because the ARDC had not yet
6
The IDEA also allows a parent, at his or her discretion, to include within the ARDC "other
individuals who have knowledge or special expertise regarding the child .... " 20 U.S.C.
1414(d)(l )(B)(vi). Such provision is presumably the basis for Ms. Liva's presence at the ARDC
meetings. She was considered "In Attendance Only" rather than a "Required Member" and as such did
ttot officially indicate her agreement or disagreement with any action taken by the ARDC on the ARDC
signature page. Her objection is instead noted in the meeting minutes.
11
received the Independent Educational Evaluation ("IEE") 7
conducted by Dr. Shannon Taylor• to supplement the FIE.
Id.
Plaintiff was officially withdrawn from the District on March 4,
2013, id. at 927, and on March 5, 2013, the Principal of BJH
signed the Disciplinary Alternative Education Placement Order.
Id. at 975.
Prior to requesting a Due Process Hearing pursuant to the
IDEA, plaintiff appealed the Disciplinary Alternative Education
Placement Order through the general education procedure.'
979.
Id. at
On March 20, 2013, a district-level due process hearing was
held by the District Level Due Process Hearing Committee. 10
at 529.
Id.
The following day, Emery conducted a follow-up
investigation, and interviewed approximately five more students
'The IDEA implementing regulations grant a parent "the right to an [lEE] at public expense if the
parent disagrees with an evaluation obtained by the public agency .... " 34 C.F.R. § 300.502(b)(l). An
lEE is defined by such regulations as "an evaluation conducted by a qualified examiner who is not
employed by the public agency responsible for the education of the child in question .... " 34 C.F.R. §
300.502(a)(3)(i).
8
Dr. Taylor is a Licensed Psychologist with the North Texas Neuropsychology and Behavioral
Medicine Services. AR at I 055. Plaintiff was referred to her by his educational advocate Debra Liva.
AR at 908.
'While the precise District policy is not included in the record, it appears from the evidence that,
where a student is dissatisfied with a decision of a principal or other administrator, that student may
appeal such decision to the District's Superintendent. AR at 976.
10
The letter notifying plaintiffs parents of the decision of the District Level Due Process Committee
was signed by Cicely Tuttle, Committee Chairperson, Tammy Daggs, Committee Member, and Dr. Toby
Givens, Committee Member. AR at 530. Presumably such persons were the entirety of the committee
provided by the Superintendent to hear such appeals.
12
based upon information provided during the district-level due
process hearing.
Id. at 998-999.
His recommendation regarding
plaintiff remained unchanged as a result of this further
investigation, id. at 999, and the due process committee denied
plaintiff's appeal and upheld his DAEP assignment on March 21,
2013.
Id. at 529-530.
On April 11, 2013, the ARDC reconvened but plaintiff's
parents were not in attendance.
Id. at 1018.
The ARDC denied
plaintiff's previously made request for homebound placement.
at 1019.
Id.
When the ARDC reconvened on May 20, 2013, to consider
the results of the IEE which had been completed on April 9, 2013,
it incorporated some of the suggestions of Dr. Taylor into
plaintiff's IEP.
Id. at 1055, 1092-1094.
Though plaintiff's
parents were in attendance at the May 20, 2013 meeting, they did
not indicate whether they accepted or rejected the changes.
at 1092, 1095.
Id.
The ARDC reconvened again on May 29, 2013, to
allow the plaintiff's parents another opportunity to agree or
disagree with the ARDC's May 20, 2013 decision, but the parents
were not in attendance.
Id. at 1136.
On January 13, 2014, plaintiff requested a due process
hearing pursuant to the IDEA.
March 19-20, 2014.
Id. at 51.
Id. at 1407-2014.
13
The hearing was held
The SEHO, Hunter
Burkhalter, presided over the hearing.
Id.
He issued his
decision on May 13, 2014, from which the instant appeal was
taken.
Id. at 45.
v.
The Parties' Contentions
In this appeal, plaintiff challenged the following findings
of the SEHO:
(1) R.L. had a reasonable expectation of privacy and
thus plaintiff engaged in conduct punishable as a felony;
(2) the
District did not violate the IDEA by failing to adjust
plaintiff's IEP and placement after it was informed that the
Tarrant County Juvenile Justice Authority ("TCJJA") declined to
prosecute plaintiff;
(3) plaintiff was provided a FAPE;
(4)
plaintiff received academic and non-academic benefits, despite
the fact that he had a number of failing grades and only met with
the Behavior Interventionist four times;
environment was not hostile;
(5) the academic
(6) he did not have jurisdiction to
entertain plaintiff's motion for expedited rehearing. 11
Plaintiff also initially challenged the SEHO's determination
upholding the ARDC's manifestation determination.
However, he
''Plaintiff contended that the SEHO erred when he made findings of fact which are actually
conclusions of law. Rather than ruling on such contention, the comt simply gives the SEHO's findings
and conclusions the effect they deserve in making a ruling in this appeal.
14
stated in his reply brief that he is no longer contesting that
determination. 12
In response, the District maintained that
(1) plaintiff
demonstrated positive academic and non-academic benefits from the
IEP and the District was not required to ensure that plaintiff's
disabilities were remediated overnight,
(2) the SEHO did not have
jurisdiction to review the.District's finding that plaintiff
engaged in conduct punishable as a felony, though his finding was
correct,
(3) even if the District did receive notice that the
TCJJA had decided not to prosecute plaintiff for a felony, such
notification did not obligate the ARDC to reevaluate plaintiff's
DAEP placement,
(4) plaintiff was educated in the least
restrictive environment, and (5) there is no evidence that the
District was a hostile environment.
"Presumably plaintiff also is no longer contesting the SEHO's determination that the District did not
violate the IDEA by "fail[ing] to adjust [plaintiffs] IEP and by extension the DAEP placement, based
upon the [lEE] .... " Statement of Contentions at 5, , 21. Plaintiff did not brief that contention, and as
stated above, the District did make additions to his IEP based on the lEE. Therefore plaintiffs
contention seems to be that the ARDC should have considered the lEE in making its manifestation
determination, which plaintiff is no longer contesting.
15
VI.
Analysis 13
A.
The SEHO's Finding that Plaintiff's Engaged in Conduct
Punishable as a Felony
Plaintiff contended that the SEHO erred in upholding the
District's finding that plaintiff engaged in conduct punishable
as a felony.
The SEHO found "that the District correctly
concluded that [plaintiff]:
(a) photographed R. [L.]
and transmitted those photographs,
in a bathroom
(b) without R. [L.] 's consent,
and (c) with the intent to invadeR. [L.] 's privacy."
AR at 34.
Plaintiff's contention is that, owing to the fact that R.L. used
the toilet area without a door and allegedly posed for the
photographs, the evidence does not support the SEHO's finding.
The District responded that the SEHO's determination was correct,
but argued that the IDEA does not give either the SEHO or this
court jurisdiction to review the District's determination that
plaintiff's conduct constituted a felony.
A person has committed the crime of improper photography if
such person,
"photographs .
a visual image of another at a
location that is a bathroom
(A) without the other
person's consent; and (B) with intent to:
13
(i)
invade the privacy
All facts recited under this heading are facts the court has found by a preponderance of the
evidence.
16
of the other person .
Tex. Penal Code.
"
§
21.15(b).
Plaintiff admitted to taking three photographs of R.L. on the
toilet.
AR at 995-996, 1558.
Based on his investigation, Emery
found that plaintiff did not have R.L.'s consent to take the
photographs and that plaintiff intended to invade R.L.'s privacy.
Id. at 995.
The principal upheld Emery's decision.
Id. at 994.
Plaintiff appealed, id. at 979, and the District Level Due
Process Hearing Committee denied that appeal.
Id. at 529-530.
As a result, the student code of conduct mandated a sixty-day
DAEP placement.
Id. at 970.
Under the IDEA, a parent of a child with a disability may
request a due process hearing.
20 U.S.C.
§
1415 (f) (1) (A).
hearing is solely to resolve complaints about (a)
Such
"any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of a
[FAPE] to such
child . . . ", or (b) the manifestation determination.
§§
1415(f) & (b) & (k).
20 U.S.C.
The SEHO's finding that plaintiff
engaged in conduct punishable as a felony is not relevant to the
issues he was to decide.
The IDEA provides that when the ARDC makes a negative
manifestation determination,
"the relevant disciplinary
procedures applicable to children without disabilities [are]
17
applied to the child in the same manner and for the same duration
in which the procedures would be applied to children without
disabilities
"
20 U.S.C.A.
§§
1415 (k) (1) (B)
&
(C) . 14
This inquiry is whether the disciplinary procedures were applied
to plaintiff by the District in the same way that such procedures
would have been applied to any other student within the District,
not whether R.L. consented to the photograph being taken or
whether plaintiff intended to invade R.L.'s privacy.
Plaintiff
has not proved that the procedures of the District were applied
to him differently than they would have been applied had they
found that another student engaged in conduct similar to
plaintiff's.
Because the factual findings of the SEHO regarding R.L.'s
consent and plaintiff's intent to invade R.L.'s privacy are not
relevant to the inquiry under the IDEA, the court need not
address the jurisdictional question presented by the District.
B.
The District was Not Required to Adjust Plaintiff's DAEP
Placement upon Notice from the TCJJA
Plaintiff contended that the TCJJA declined to prosecute him
for the felony of improper photography because of insufficient
evidence and so notified the District, and that, based upon that
14
The IDEA also allows a child with a disability to be removed to a DAEP based upon "special
circumstances" which are not relevant in this instance.
18
new information, the District should have adjusted his placement.
Assuming, arguendo, that the TCJJA decided not to prosecute
plaintiff for the felony of improper photography because of
insufficient evidence and that the TCJJA notified the District of
that decision, the District would still have no obligation to
review plaintiff's DAEP placement under the IDEA. 15
In the case
of plaintiff, the ARDC met to (1) discuss and implement his IEP,
including his BIP, to ensure he was receiving a FAPE, AR at 847850, 1018-1020, 1092-1094, 1136-1137, and (2) conduct a
manifestation determination, id. at 906-909, the results of which
plaintiff does not challenge.
The only relevance such alleged
TCJJA notice would have is to the question of whether plaintiff
engaged in conduct punishable as a felony.
The ARDC did not make
that determination, and plaintiff has presented the court with no
legal argument as to how the decision of a criminal justice
authority affects any decision actually made by the ARDC.
For
that reason, plaintiff has failed to establish that the ARDC
violated the IDEA by failing to take action based on the notice
allegedly sent to them from the TCJJA.
"So far as the court can determine, the administrative record does not contain evidence that the
District received notice from the TCJJA that it had decided not to prosecute plaintiff.
19
C.
The SEHO's Declination to Grant a Rehearing Was Not Improper
The month after the SEHO issued his decision and order from
which the instant appeal was taken, plaintiff, through his
attorney, submitted to the SEHO a document titled "Motion For
Expedited Rehearing" by which he sought a reopening of his due
process hearing, apparently for the purpose of entering into the
hearing record prints of the photographs that plaintiff took of
R.L. while the latter was seated on the toilet.
AR at 303-308.
After the District filed a response to that motion, id. at 315322, the SEHO issued a letter on June 4, 2014, that expressed his
conclusion that he lacked jurisdiction to rule on the motion, and
his decision that he did not plan to do so, id. at 324.
Plaintiff caused this court to become involved in his
attempt to obtain a rehearing by filing a motion on October 21,
2014, in this action when it was pending as Case No. 4:14-CV-646A, asking that this court order a remand so that the "Hearing
Officer [could] admit the evidence previously denied
Case No. 4:14-CV-646-A, Doc. 19 at 2.
"
By that motion, plaintiff
sought a ruling that the proceeding be remanded to the SEHO not
only for the purpose of having the SEHO reopen the hearing to
take into account prints of the photographs, but also for the
purpose of permitting plaintiff, through his attorney, to put
20
into the record of the due process hearing school records
pertaining to non-party students.
~fter
Id., Doc. 20 at 6-7, , , 27-29.
having considered the motion to remand and the District's
response, this court issued an order on November 6, 2014, in Case
No. 4:14-CV-646-A, denying the motion.
Id., Doc. 29.
This court continues to be of the view that a remand was not
appropriate, and would not have been required even if the only
ground for the requested remand were, as stated in the June 2014
motion directed to the SEHO, to cause witness descriptions of
what the photographs depicted to be clarified by an inclusion in
the record of the due process hearing of prints of the
photographs.
There is no indication in the record that the
officials of the District would have made any decisions different
from those they made if they had perceived the photographs
differently from what they said at the hearing, nor is there any
suggestion in the record that the SEHO would have made any
findings or rulings different from those contained in his
May 2014 Decision and Order if he had seen prints of the
photographs before he made his findings and rulings.
Therefore,
the issue of whether the SEHO had jurisdiction to reopen the
hearing to receive prints of the photographs in evidence is moot
because the record indicates that if the hearing had been
21
reopened, and the photographs received into the hearing record,
the outcome would have been the same.
D.
Plaintiff Received a FAPE
In order to provide a student a FAPE, the ARDC prepares and
implements an IEP, which must be "likely to produce progress, not
regression or trivial educational advancement."
F.3d at 248.
Michael F., 118
The United States Court of Appeals for the Fifth
Circuit has approved four factors to "serve as indicators of
whether an IEP is reasonably calculated to provide a meaningful
educational benefit under the IDEA."
Id. at 253.
Those factors
are: "(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 nonacademic benefits are demonstrated."
quotation marks omitted).
Id.
(citation and internal
These factors are indicators that a
FAPE was or was not provided, not independent causes of action.
Plaintiff contended that he was denied a FAPE, because (1)
he was not educated in the least restrictive environment,
(2)
no
positive academic or non-academic benefits were demonstrated, and
(3) his IEP was not developed in a collaborative manner by key
22
stakeholders nor was it provided commensurate with his unique
individualized needs. 16
The court agrees with the SEHO that the
third contention seems to encompass the first and third Michael
~
factors that: the program must be individualized on the basis
of the student's assessment and performance, and the services
must be provided in a coordinated and collaborative manner by the
key stakeholders.
Thus, the court will discuss plaintiff's
contentions with that framework in mind.
1.
Least Restrictive Environment
Plaintiff contended that he was not educated in the least
restrictive environment because he was placed in a DAEP instead
of in-school suspension or detention.
The IDEA required the
District to "assure that such education is offered, to the
greatest extent possible, in the educational 'mainstream' that
is, side by side with non-disabled children, in the least
restrictive environment consistent with the disabled student's
needs."
Michael F., 118 F.3d at 247.
Plaintiff provided no
authority to support his proposition that this provision of the
16
ln the background section of his statement of contentions. as near as the court can tell. plaintiff
assetted that the District violated the IDEA by having "pre-conceived notions of what C.C."[s] IEP and
placement should be prior to the Committee [meeting] where such items were to be addressed in an
interactive and collaborative process between the parties." Statement of Contentions at 2. Since the
issue is not listed within the contentions section of such document, nor is it brief, the court will assume
plaintiff is not assetting such statement as a separate contention.
23
IDEA contemplates a less stringent disciplinary placement than
would be otherwise warranted.
In fact, as the SEHO correctly
noted, once a negative manifestation determination was made, the
District was authorized to apply its disciplinary procedures "in
the same manner and for the same duration in which the procedures
would be applied to children without disabilities .
U.S.C.
§
1415(k) (1) (C); AR at 38.
"
20
Plaintiff is not challenging
the manifestation determination, and, as discussed above, offered
no evidence that the District did not properly follow its
disciplinary procedures.
2.
Academic and Non-Academic Benefits
Plaintiff next contended he did not receive an academic or
non-academic beriefit.
Presumably included in this contention is
plaintiff's argument that the SEHO erred in making findings of
fact that
(1) he received an academic benefit despite having a
number of failing grades, and (2) he derived a benefit from his
four meetings with the Behavior Interventionist.
The Fifth Circuit "ha[s] not held that district courts must
apply the four factors in any particular way.
[Its] cases state
only that these factors are indicators of an IEP's
appropriateness intended to guide a district court in the factintensive inquiry of evaluating whether an IEP provided an
24
educational benefit."
Richardson Indep. Sch. Dist. v. Michael Z,
580 F.3d 286, 294 (5th Cir. 2009)
citations omitted).
(internal quotations and
Plaintiff's IEP was implemented February 1,
2013, and the last day he attended BJH was February 21, 2013.
at 850, 876, 1898-1899, 1905, 1927.
place three weeks.
AR
Thus, the IEP was only in
There was not even a completed grading period
following the implementation of the IEP prior to the parents
removing the plaintiff from school.
Id. at 1243.
In making the
finding of fact that plaintiff demonstrated an academic benefit,
the SEHO noted that the data showed plaintiff's incidence of
turning in work on time went from 23% to 46% between the week
ending February 8, 2013, and the week ending February 15, 2013.
Id. at 42, 1247-1248.
The SEHO also made a factual finding that
plaintiff demonstrated non-academic benefit from his four
meetings with the Behavior Interventionist.
Id. at 42, 2008-
2009.
Considering the limited time frame and the fact that the
party challenging the IEP bears the burden of proving that the
IEP is deficient, the court concludes that plaintiff has failed
to prove that positive academic and non-academic benefits were
not demonstrated.
25
3.
The Program was Individualized
Plaintiff contended that his IEP was not individualized
because the ARDC did not consider the notice allegedly sent to
the District by the TCJJA. 17
In support of this contention,
plaintiff argued that (1) because plaintiff's behavior impeded
his learning, the ARDC had a duty to consider the information
from the TCJJA, and (2) the wording within the Texas Education
Code and the Texas Code of Criminal Procedure evinced a desire of
the legislature that schools take into account a juvenile justice
authority's decision not to prosecute.
In developing the IEP, the ARDC "must consider- (i)
strengths of the child;
(ii)
[t]he
[t]he concerns of the parents for
enhancing the education of their child;
(iii)
[t] he results of
the initial or most recent evaluation of the child; and (iv)
[t]he academic, developmental, and functional needs of the
child."
34 C.F.R.
§
300.324 (a) (1).
The ARDC must also,
"[i]n
the case of a child whose behavior impedes the child's learning
or that of others, consider the use of positive behavioral
interventions and supports, and other strategies, to address that
behavior .
"
34 C.F.R.
§
300.324(a)(2)(i).
17
The only
As noted earlier, supra at 19 n.l5, the court has not found anything in the administrative record
suggesting that such notice was sent by the TCJJA to the District.
26
information regarding plaintiff which the TCJJA could have
presented to the ARDC is that they decided not to prosecute the
case.
Even assuming, arguendo, that the TCJJA concluded that it
could not prove beyond a reasonable doubt that plaintiff engaged
in conduct punishable as a felony, that information is not
relevant to the inquiry of the ARDC.
That information has no
bearing on any of the above-listed factors.
Such information
might be relevant to the factual finding of the school as part of
the general education disciplinary procedures but that was not
the ARDC's inquiry.
Plaintiff attempted to bolster this contention through his
argument that provisions of the Texas Education Code and the
Texas Code of Criminal Procedure evinced a desire by the Texas
state legislature that the District consider such a TCJJA notice.
However, such argument is unavailing.
The Texas Education Code
authorizes, but does not mandate, that the Superintendent or his
designee consider such a notice from the TCJJA in determining
whether there is a reasonable belief that the student engaged in
conduct defined as a felony offense.
37.006(e).
See Tex. Educ. Code.
§
As previously discussed, the question of whether a
student engaged in conduct defined as a felony offense is
irrelevant to the ARDC's inquiry under the IDEA.
27
Therefore,
those provisions of Texas law have no bearing on the ARDC's
analysis.
Thus the ARDC did not err in not considering such a
notice if it received one.
4.
The Services were Provided in a Coordinated and
Collaborative Manner by the Key Stakeholders
Plaintiff incorrectly contended that the TCJJA was a key
stakeholder that needed to be included in the IEP development
process.
The IDEA required that the IEP team include the
parents, at least one of the student's regular education
teachers, at least one of the student's special education
teachers, a representative of the school District who is
qualified to provide specially designed instructions and is
sufficiently knowledgeable about the general education curriculum
and availability of resources, and an individual who can
interpret the instructional implications of evaluation results.
20 U.S.C.
§
1414 (d) (1) (B).
In addition, at the parents' or
agency's discretion, the team may include other individuals who
have knowledge or special expertise regarding the student.
Id.
As stated above, the only question the TCJJA could possibly aid
in answering is whether it could prove beyond a reasonable doubt
that plaintiff engaged in conduct punishable as a felony.
Therefore, the TCJJA did not have knowledge relevant to the ARDC.
Furthermore, plaintiff did not contend that he or his parents
28
requested the TCJJA be added to the ARDC at any point prior to
this appeal.
Plaintiff's sole contention regarding this factor is that
the TCJJA was not included as a stakeholder.
He and his parents
made no argument that the meetings of the ARDC were not
collaborative or that they were unheard.
The court therefore
does not find that the IEP services were not provided in a
coordinated and collaborative manner by the key stakeholders.
E.
The Academic Environment was not Hostile
Plaintiff's final contention seems to be that hostility of
the District deprived him of a FAPE.
Within this segment of his
brief, plaintiff contended that the SEHO erred in (1) excluding
the disciplinary records of other children, and (2) determining
that the environment was not hostile.
The court has previously
held that the disciplinary records of other children are not
relevant to this appeal.
Plaintiff's hostile academic environment claim seems to be
that the District punished him more harshly than other students
in an effort to remove him from the regular education setting,
causing him to be denied a FAPE. 18
As near as the court can
"Insofar as plaintiff is relying upon the section of the IDEA which requires a school to administer its
disciplinary procedures in the same manner and for the same duration regardless of whether a student has
(continued ... )
29
tell, there is no precedent directly on point.
But, even
assuming, arguendo, that this is an appropriate inquiry under the
IDEA, plaintiff has presented no evidence in support of this
contention.
In his brief, plaintiff stated that (1) he overheard
two teachers saying they could write him up for destruction of
school property for scratching a pencil on the wall,
(2) one
teacher followed him around, arranged for them to collide twice,
and then filed assault charges against him,
(3) the school
attempted to have parents of two students file sexual assault
charges against plaintiff, and (4) the District mischaracterized
his actions of taking a picture of another student on the toilet
as a felony.
19
First, plaintiff's testimony at the hearing was
that he was told by staff that he was destroying school property
by tapping a pen on the wall, not that he overheard teachers
conspiring to have him kicked out of school for such action.
at 1466, 1468.
AR
Second, assuming, arguendo, that plaintiff's
characterizations are accurate, there is no evidence that the
District instructed plaintiff's teacher to run into him or to
( ... continued)
a disability, the court has already addressed this contention.
"Plaintiff attempted to admit as evidence, both at the due process hearing level and as additional
evidence pertinent to this appeal, disciplinary records of other students. While such records appeared to
deal with serious conduct, there was no allegation made by plaintiff that a student who appeared to have
engaged in conduct punishable as a felony on school property was treated differently than he was.
30
file assault charges or even was aware that she did either.
at 634-635, 1208, 1226-1228.
AR
Third, as near as the court can
tell, plaintiff has offered no evidence that Emery attempted to
convince anyone to file sexual assault charges against
plaintiff. 20
And fourth, plaintiff has presented no evidence
that the District's conclusion that he engaged in conduct
punishable as a felony was made in bad faith.
Plaintiff, who bears the burden of proving that he was
deprived of a FAPE, has not persuaded the court that the District
created a hostile environment that deprived him of an educational
opportunity or interfered with his educational opportunities.
F.
Plaintiff is Not Entitled to Reimbursement for Home School
Costs
Under the IDEA, a district court has discretion to "grant
such relief as [it] determines is appropriate."
F.3d at 292
(alteration in the original)
quotation omitted) .
Michael Z, 580
(citation and internal
"When parents unilaterally remove their
child from a public school, reimbursement for the expenses of
20
Piaintiff in his brief cites to written notes of the principal wherein the principal wrote that plaintiff
asked a young girl if she was making porn, and that the girl's mom, who was an employee of the District,
wanted to speak with her daughter before "making a decision on which way she would like for [the
school] to go with a consequence." AR at I 3 I I. There is no mention of any school official suggesting
the mother file a criminal complaint. Furthermore, inasmuch as plaintiff argued the District approached
the parents of the student who plaintiff allegedly sexually harassed on Febmary 19,2013, plaintiff
pointed to no evidence that the District discussed that matter with the other student's parents or
encouraged them to file a criminal complaint. See .!Q., at 1229.
31
private schooling may be an appropriate form of relief in some
situations."
Id. at 292-293.
In order to be entitled to
reimbursement, plaintiff must prove that "(1) an IEP calling for
placement in public school was inappropriate under IDEA, and (2)
the private placement was proper under the Act."
Id. at 293.
As the court has already determined that plaintiff has not
met his burden of proving that the District did not offer him an
individualized and appropriate IEP or did not make a FAPE
available, plaintiff cannot satisfy the first prong of this
analysis.
Nor has plaintiff persuaded the court that private
placement of plaintiff was proper under the IDEA.
Thus, the
court concludes that neither plaintiff nor his parents are
entitled to reimbursement for home school costs, nor are they
entitled to any other reimbursement or to damages they are
seeking for alleged injuries.
G.
Attorney's Fees
The IDEA provided that "the court, in its discretion, may
award reasonable attorneys' fees as part of the costs .
. to a
prevailing party who is the parent of a child with a disability."
20 U.S.C.
§
1415(i) (3) (B).
"Under the IDEA, a prevailing party
is one that attains a remedy that both (1) alters the legal
relationship between the school district and the handicapped
32
child and (2)
fosters the purposes of the IDEA."
Sch. Dist. v. Richard R., 591 F.3d 417, 421-422
El Paso Indep.
(5th cir. 2009).
A party need not obtain a favorable outcome on every issue to
become a prevailing party, but he or she must prevail on some
"significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit."
Alief Indep. Sch.
Dist. v. C.C. ex rel. Kenneth c., 713 F.3d 268, 270 (5th Cir.
2013) .
As plaintiff has not prevailed on any of his claims, he
is not a prevailing party and neither he nor his parents are
entitled to attorney's fees.
H.
Conclusion
In reaching the decisions and making the findings expressed
in this memorandum opinion and order, the court applied the
standard of review prescribed by the Fifth circuit for use in a
case such as this.
See Michael F., 118 F.3d at 252; see also
Bobby R., 200 F.3d at 347.
The court has concluded that
plaintiff has failed to carry his burden of showing that the IEP
and resulting placements were inappropriate under the IDEA.
Bobby R., 200 F.3d at 347.
See
More generally, plaintiff has failed
to persuade the court that the factual bases of any of his
contentions have evidentiary support or that the District
committed any legal error that adversely affected plaintiff.
33
Consequently, all plaintiff's complaints as to the findings,
decisions, and rulings of the SEHO and the conduct of the
District in relation to plaintiff are without merit, and all
relief sought by plaintiff or his parents in this action should
be denied.
VII.
Order
Therefore,
The court ORDERS that all relief sought by plaintiff in his
complaint be, and is hereby, denied, and that the findings,
decisions, and rulings of the SEHO
SIGNED May 21, 2015.
34
affirmed.
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