Wood et al v. Katy Independent School District et al
Filing
117
OPINION AND ORDER granting 103 KISD's Amended MOTION for Summary Judgment and denying 102 Woodses' Amended MOTION for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN WOOD, RENE WOOD, AND
ROBERT WOOD,
§
§
§
Plaintiffs,
§
§
VS.
§
§
KATY INDEPENDENT SCHOOL
§
DISTRICT AND BOARD OF TRUSTEES §
OF THE KATY INDEPENDENT SCHOOL §
DISTRICT,
§
§
Defendants.
§
CIVIL ACTION H-09-1390
OPINION AND ORDER
The above referenced cause is an appeal by Plaintiffs Robert
Wood (“Rob”) and his parents, John Wood and Rene Wood, of Texas
Education Agency (“TEA”) Special Education Hearing Officer Mary
Carolyn Carmichael’s February 7, 2009 decision1 that Defendant Katy
Independent School District (“KISD”) had provided Rob, allegedly
1
Copy attached to Plaintiffs’ Amended Complaint (#8-1) and
included in #67, the Certified Administrative Record (“CAR”), Vol.
I at p.2. Specifically in denying all relief requested by Rob, the
Hearing Officer concluded, #8-1, at p. 19 (electronic page no. 23),
The educational program provided by KISD for Petitioner’s
2006-2007 school year and proposed for 2007-2008 school
year was appropriate, delivered according to the IEP, and
resulted in progress for Petitioner during his attendance
in the 2006-2007 school year.
Petitioner received a
meaningful educational benefit during the 2006-2007
school year and the program proposed for 2007-2008 was
reasonably calculated to provide the same.
The Hearing Officer found in favor of KISD on all issues raised
during the hearing.
-1-
impaired by dyslexia according to his parents and undisputedly
learning
disabled,
with
a
free,
appropriate
public
education
(“FAPE”) in compliance with the Individuals With Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400-1491, specifically §
1415(i)(2)(a).2
the
IDEA’s
Plaintiffs complain that KISD did not comply with
procedural
requirements
and
failed
to
design
an
individualized education program (“IEP”) reasonably calculated to
enable Rob to receive educational benefits.
Pending before the
Court are amended cross motions for summary judgment filed by (1)
Plaintiffs John Wood, Rene Wood, and Robert Wood (instrument # 102)
and (2) by the KISD (#103).
For the procedural history of this case, the Court refers the
parties to its Opinion and Order of September 12, 2012 (#100).
Moreover, because initially the massive record for summary
judgment was not organized in any accessible way to allow the Court
to locate specific documents, because much of it and the parties’
earlier motions for summary judgment addressed numerous extraneous
matters that were not relevant to Plaintiffs’ remaining IDEA claims
and included documents not part of the administrative record (#67)
provided by TEA, to which the Court has restricted this appeal (see
2
The IDEA’s purpose is “to ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further
education, employment, and independent living.”
20 U.S.C. §
1400(d)(1)(A).
-2-
#65 and 100), because citations to the record were inconsistent and
unclear or incorrect, and because the parties failed to address
significant elements essential to Plaintiffs’ claims, inter alia,
in that September 12, 2012 Opinion and Order the Court instructed
the parties to file amended motions of not more than 50 pages
addressing the two key issues: whether the state complied with the
IDEA’s procedural requirements3 and whether the IEP was reasonably
calculated to enable Rob to receive educational benefits.4
3
See generally, 20 U.S.C. § 1415.
identifies as required procedures,
See
For example, § 1414(b)(1)
An opportunity for the parents of a child with a
disability to examine all records relating to such child
and to participate in meetings with respect to the
identification, evaluation, and educational placement of
the child, and the provision of a free appropriate public
education to such child, and to obtain an independent
educational evaluation of the child.
While a procedural violation by itself may support a “finding that,
as a matter of law the school has failed to provide” a FAPE, to be
actionable, the procedural violation “must result in the loss of an
educational opportunity.” Adam J. v. Keller Indep. Sch. Dist., 328
F.3d 804, 811 (5th Cir. 2003), citing Buser by Buser v. Corpus
Christi Indep. Sch. Dist., 51 F.3d 490, 493 (5th Cir. 1995).
4
At meetings attended and participated in by parents, who
play a significant role, teachers, other school personnel and
educational experts, individualized IEPs are developed by agreement
and contain a statement of the special education, related services,
and accommodations that the school district must provide to the
child with disabilities. 20 U.S.C. § 1414(d)(1)(B) and (A); Klein
Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 395 (5th Cir. 2012). The
parents’ “right to provide meaningful input is simply not the right
to dictate an outcome and obviously cannot be measured by such,”
White v. Ascension Parish Sch. Bd., 343 F.3d 373, 380 (5th Cir.
2003), citing Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d
648, 656 (8th Cir. 1999)(where no “serious hamper[ing]” of parent’s
opportunity to participate in the formulation process, IDEA
-3-
Richardson ISD v. Michael Z., 580 F.3d 286, 293 (5th Cir. 2009)(The
scope of judicial review of an IEP is limited to two questions:
“has the state complied with the procedural requirements of the
IDEA” and “is the [IEP] developed through the Act’s procedures
reasonably calculated to enable the child to receive educational
benefits?”), citing Bd. of Educ. of Hendrick Hudson Central Sch.
Dist. v. Rowley, 458 U.S. 176, 206-07 (1982), cert. denied, 522
U.S. 1047 (1998)). While KISD has complied with the Court’s order,
Plaintiffs’ submission is still voluminous, contains documents that
are not part of the official administrative record, an absence of
citations to the record to support their assertions, and irrelevant
requirement of meaningful parental input satisfied notwithstanding
that parent’s desired program not selected); Lachman v. Illinois
St. Bd. of Educ., 852 F.2d 290, 297 (7th Cir.)(“[P]arents, no matter
how well-motivated, do not have a right under [the IDEA] to compel
a school district to provide a specific program or employ a
specific methodology in providing for the education of their
handicapped child.”), cert. denied, 488 U.S. 925 (1988).
Here
Plaintiffs’ request that KISD use the Orton-Gillingham methodology,
recommended by the psychologist at Pine Ridge School, for Rob’s
disabilities did not require KISD to do so.
Once the IEP is
created, the school district must then implement the IEP and
periodically review it. Hovem, id. Parents must be allowed to
raise any complaints they have to the identification, evaluation or
placement of the child or to whether the child was receiving a FAPE
as required under 20 U.S.C. § 1415(f)(3)(E)(i).
Id.
If the
parents are not satisfied with the school district’s effort to
resolve any issues, they may request an impartial due process
hearing before an independent, state education agency Hearing
Officer pursuant to 20 U.S.C. § 1415(f)(1)(A).
Id.
If still
aggrieved after exhausting these administrative procedures, the
parents and child may “bring a civil action with respect to the
complaint” in state or federal court under 20 U.S.C. §
1415(i)(2)(A). Id.
-4-
and/or incompetent summary judgment evidence.5
The Court does the
best it can with the current record and again reminds the parties
that it is not obligated to “sift through the record in search of
evidence” to support a party’s opposition to a motion for summary
judgment.
Forsyth v. Barr, 19 F.3d 1527, 1533
(5th Cir. 1994).
Rather the nonmovant must identify evidence in the record and
demonstrate how it supports his claim. Ragas v. Tenn. Gas Pipeline
Co., 136 F.3d 455, 458 (5th Cir. 1998).
Standard of Review
Summary Judgment Under the IDEA:
Review of
Hearing Officer’s Decision
When addressing a summary judgment motion appealing a hearing
officer’s
decision
under
the
IDEA,
the
court
reviews
the
administrative record of the due process hearing and examines new
evidence at the request of any party.
HISD v. V.P. ex rel. Juan
P., 582 F.3d 576 (5th Cir. 2009), cert. denied, 130 S. Ct. 1892
(2010)(No. 09-841); Cypress-Fairbanks ISD v. Michael F., 118 F.3d
245, 252 (5th Cir. 1997)(citing Bd. of Educ. of Hendrick Hudson
Central Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982), cert.
denied, 522 U.S. 1047 (1998)).
When no new evidence is presented
5
See KISD’s objections and response to Plaintiffs’ revised
statement of facts and revised memorandum of law in support of
summary judgment (#108 at pp. 1–4, 15-18 and Exhibit A), which
points out the substantial incompetent summary judgment evidence
submitted by Plaintiffs.
The Court does not rely on any such
submissions.
-5-
to the district court in an IDEA suit, . . . “the motion for
summary judgment is simply the procedural vehicle for asking [the
judge] to decide the case on the basis of the administrative
record.”
El Paso ISD v. Richard R., 567 F. Supp. 2d 918, 927 (W.D.
Tex. 2008), citing Heather S. v. State of Wis., 125 F.3d 1045, 1052
(7th Cir. 1997).
See also D.C. v. Klein ISD, 711 F. Supp. 2d 739,
744 (S.D. Tex. 2010)(same; “The district court must ‘reach an
independent decision based on a preponderance of the evidence.”),
citing Loch v. Edwardsville School Dist. No. 7, 327 Fed. App’x 647,
650 (7th Cir. 2009); Capistrano Unified Sch. Dist. v. Wartenberg,
59 F.3d 884, 892 (9th Cir. 1995)(“Though the parties [in an IDEA
action] may call the procedure ‘a motion for summary judgment’ . .
. the procedure is in substance an appeal from an administrative
determination, not a summary judgment.”).
“Thus even though it is
termed ‘summary judgment,’ the district court’s decision is based
on the preponderance of the evidence.”
650.
Loch, 327 Fed. App’x at
Therefore the existence of a disputed issue of material fact
will not defeat such a motion for summary judgment.
1415(i)(2)(C).
20 U.S.C. §
While the district court may take additional
evidence beyond the administrative record,6 the review here is
6
Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503
F.3d 378, 383 (5th Cir. 2007), citing Teague Indep. Sch. Dist. v.
Todd L, 999 F.2d 127, 131 (5th Cir. 1993).
-6-
restricted to the administrative record below.7
While the district court on review must give the Hearing
Officer’s findings “due weight,” it must make an independent,
“virtually de novo” decision based on preponderance of the evidence
before it. 20 U.S.C. § 1415(i)(2)(C); Michael F., 118 F.3d at 252;
R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 807-08 (5th
Cir. 2012).
In applying the “due weight” standard, “the hearing
officer’s findings are not conclusive and the court may take
additional evidence and reach an independent conclusion based on
the preponderance of evidence.”
127, 131 (5th Cir. 1993).
Teague ISD v. Todd L., 999 F.2d
Furthermore the district court does not
have to defer to the Hearing Officer’s findings “when its own
review
of
the
evidence
indicates
that
the
hearing
officer
erroneously assessed the facts or erroneously applied the law to
the facts.”
Id.
The Teague appellate panel quoted Rowley:
“Congress expressly rejected provisions that would have
. . . severely restricted the role of reviewing courts.
In substituting the current language of the statute [20
U.S.C. § 1415(e)(2)] for language that would have made
state administrative findings conclusive if supported by
substantial evidence, the Conference Committee explained
that courts were to make ‘independent decision[s] based
on a preponderance of the evidence.’”
999 F.2d at 131, quoting Rowley, 458 U.S. at 205 (quoting S. Cong.
Rec. 37416 (1975)(remarks of Sen. Williams)).
7
Nevertheless this
#65 and 100.
KISD has supplemented the record with
citations to and copies of cases that have been issued recently.
See #113 and 116.
-7-
preponderance-of-the-evidence standard is not “an invitation to the
courts to substitute their own notion of sound educational policy
for those of the school authorities which they review.”
458 U.S. at 206.
Rowley,
“The primary responsibility for formulating the
education to be accorded to a handicapped child, and for choosing
the educational method most suitable to the child’s needs, was left
by the Act to state and local educational agencies in cooperation
with the parents or guardian of the child.”
Id. at 207.
While the court reviews a mixed question of fact and law de
novo, “the underlying fact-findings, ‘such as finding that a
disabled
student
obtained
educational
benefits
under
an
[individualized education program (“IEP”)],8 are reviewed for clear
8
Under the IDEA, in providing every child with disabilities
a FAPE, each school district receiving federal funds must develop
and implement an individualized education program (“IEP”) for each
disabled student.
In Texas, the Admissions, Review and Dismissal Committee
(“ARDC”) is responsible for preparing the IEP. Cypress-Fairbanks
Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997),
cert. denied, 522 U.S. 1047 (1998); 19 Tex. Admin. Code § 89.1050.
The ARDC should be composed of the parents of the child with a
disability, at least one of the child’s regular education teachers,
at least one special education teacher, a qualified representative
of the school district, an individual who is able to “interpret
‘the instructional implications of evaluation results,’” others, at
the discretion of the parents or agency, who have knowledge or
special expertise regarding the child, and when appropriate, the
child. HISD v. V.P. ex rel. Juan P., 582 F.3d at 580 n.1.
The IEP is a written statement prepared for implementation by
the child’s ARDC to address the child’s individual and unique
needs, based on assessments of and performance by the child. The
IEP does not have to “maximize the child’s educational potential,”
but “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
-8-
error.’”
HISD
v.
Bobby
R.,
200
F.3d
341,
347
(5th
Cir.
2000)(quoting Cypress-Fairbanks, 118 F.3d at 252), cert. denied,
531 U.S. 817 (2000). “A finding of fact is clearly erroneous when,
although there is evidence to support it, the reviewing court based
on all the evidence is left with the definitive and firm conviction
that a mistake has been committed.”
Houston Exploration Co. v.
Halliburton Energy Servs., Inc., 359 F.3d 777, 779 (5th Cir. 2004).
The IDEA
The Fifth Circuit has held that the IDEA creates a presumption
that the school district’s IEP is appropriate under the IDEA.
White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 377
(5th Cir. 2003). “‘The role of the judiciary is not to second-guess
the decisions of school officials or to substitute their plans for
the education of disabled students with the court’s.’”
J.H. v.
Fort Bend Indep. Sch. Dist., 482 Fed. Appx. 915, at *2 (5th Cir.
benefit.” Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118
F.3d 245, 247-48 (5th Cir. 1997), citing Rowley, 458 U.S. at 201.
An IEP is sufficient if it “‘is reasonably calculated to enable
[the student with disabilities] to achieve passing marks and
advance from grade to grade’ in mainstream classes.” Hovem, 690
F.3d at 399 (“This is because grading and advancement in regular
classrooms monitor a child’s progress , and the “system itself”
confirms the extent of the educational benefit to the child.”),
citing Rowley, 458 U.S. at 2402. “Nevertheless, 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
educational advancement.” Michael F., 118 F.3d at 248. The IEP is
a collaborative effort and provides procedural safeguards to insure
that the parents and children with disabilities are involved in the
creation and implementation of the individualized program.
-9-
July 26, 2012), quoting R.H. v. Plano Indep. Sch. Dist., 607 F.3d
1003, 1010 (5th Cir. 2010), cert. denied, 131 S. Ct. 1471 (2011).
Thus the only issue for the court is whether the school officials
complied with the IDEA.
Id.
Therefore the party challenging the
appropriateness of an IEP because it does not comply with the IDEA
or during the due process hearing before the hearing officer bears
the burden of showing why the IEP and resulting placement were
inappropriate under the statute.
Id.; White, 343 F.3d at 377;
Schaffer v. Weast, 546 U.S. 49, 57-58 (2003)(In an administrative
hearing under the IDEA, the burden of persuasion is properly placed
on the party seeking relief, the plaintiff); Bobby R., 200 F.3d at
347.
See also White, 343 F.3d at 377, citing Teague ISD v. Todd
L., 999 F.2d 127, 132 (5th Cir. 1993); Michael F., 118 F.3d at 252.
The Fifth Circuit has further held that “at the district court
level, as at the administrative level, the party challenging the
IEP bears the burden of showing that the IEP and the resulting
placement are inappropriate under the IDEA.”
Richardson ISD v.
Michael Z., 580 F.3d 286, 292 n.4 (5th Cir. 2009).
Thus the Woods
Plaintiffs still bear the burden of persuasion here.
A student “with a disability” entitled to receive a FAPE with
special education and related services under the IDEA, 20 U.S. §§
1412(a)(1) and 1401(9), “must both (1) have a qualifying disability
and (2) by reason thereof need [] special education and related
-10-
services.” 20 U.S.C. § 1401(3)(A).9
A central goal of the IDEA is to make sure that children with
disabilities “receive a ‘free appropriate public education10 that
9
The statute under the first prong lists the following as
qualifying disabilities:
“intellectual disabilities, hearing
impairments (including deafness), speech or language impairments,
visual impairments (including blindness, serious emotional
disturbance . . ., orthopedic impairments, autism, traumatic brain
injury, or other health impairments or specific learning
disabilities.” See also 34 C.F.R. § 300.8, defining “Child with a
disability.”
10
In Rowley, 458 U.S. at 188, Justice Rehnquist, writing for
the majority, pointed out the IDEA’s express definition of FAPE:
“The term ‘free appropriate education’ means special
education and related services which (A) have been
provided at public expense, under public supervision and
direction, and without charge, (B) meet the standards of
the State educational agency, (C) include an appropriate
preschool, elementary, or secondary education in the
State involved, and (D) are provided in conformity with
the individualized education program required under
section 1414(a)(5) of this title. § 1401(18) (emphasis
added).
The opinion continues,
“Special education,” as referred to in this definition,
means “specially designed instruction,” at no cost to
parents or guardians, to meet the unique needs of a
handicapped child, including classroom instruction,
instruction in physical education, home instruction, and
instruction in hospitals and institutions.” § 1401(16).
“Related services” are defined as “transportation, and
such developmental, corrective and other supportive
services as may be required to assist a handicapped child
to benefit from special education.” § 1401(17).
Id. Justice Rehnquist continued, “Examples of related services’
identified in the Act are ‘speech pathology and audiology,
psychological services, physical and occupational therapy,
recreation, and medical and counseling services, except that such
medical services shall be for diagnostic and evaluation purposes
-11-
emphasizes special education and related services designed to meet
their
unique
needs
and
prepare
them
for
further
education,
employment, and independent living.’” Houston Indep. Sch. Dist. v.
V.P. ex rel. Juan P., 582 F.3d at 583.
KISD, as “‘a local
educational agency responsible for complying with the IDEA as a
condition of the State of Texas’ receipt of federal education
funding’ . . . must ‘(1) provide each disabled child within its
jurisdictional
boundaries
with
a
‘free
appropriate
public
education’ tailored to his unique needs, and (2) assure that such
education is offered . . . in the least restrictive environment11
only.’” Id., n. 10, citing § 1401(17).
Studying the legislative history of the IDEA, in 1982 the
United States Supreme Court, pointing out that “[n]oticeably absent
from the language of the statute is any substantive standard
prescribing the level of education to be accorded handicapped
children,” opined that “Congress did not impose upon the States any
greater substantive educational standard than would be necessary to
make such access meaningful.”
Id. 192.
It concluded that
“Congress sought primarily to make public education available to
handicapped children”: “Thus, the intent of the Act was more to
open the door of public education to handicapped children on
appropriate terms than to guarantee any particular level of
education once inside.” Rowley, 458 U.S. at 189, 192. The Supreme
Court determined that “[T]he ‘basic floor of opportunity’ provided
by the Act consists of specialized instruction and related services
which are individually designed to provide educational benefit to
the handicapped child,” not to maximize the potential of each
handicapped child commensurate with the opportunity provided nonhandicapped children. Id. at 200-01. The Supreme Court further
observed that the State satisfies the requirement to provide a
handicapped child with a publically funded FAPE “by providing
personalized instruction with sufficient support services to permit
the child to benefit educationally from that instruction.” Id. at
203.
11
A primary goal of the IDEA is mainstreaming; a disabled
child should not be placed in special classes except when education
-12-
consistent with the disabled student’s needs.’”
Michael F., 118 F.3d at 247.
Id., citing
The school district does not have to
“provide its disabled students with the best possible education,
nor one that will maximize the student’s educational potential.”
Id., citing Michael F., 118 F.3d
at 188-89).
at 247 (citing Rowley, 458 U.S.
“‘Nevertheless, the educational benefit to which the
Act 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 educational advancement’”; in
in regular classes with the use of supplementary services cannot be
achieved satisfactorily. 20 U.S.C. § 1412(a)(5)(A)(“[The] removal
of children with disabilities from the regular educational
environment occurs only when the nature or severity of the
disability of a child is such that education in regular classes
with the use of supplementary aids and services cannot be achieved
satisfactorily.”). J.H., 482 Fed. Appx. at 917-18, citing Daniel
R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044, 1045, 1039 (5th
Cir. 1989), and R.H., 607 F.3d at 1008.
In Daniel, the court
created a two-prong test for an IEP in order to balance Congress’s
clear preference for “mainstreaming” with the actuality that
general education is not appropriate for all disabled children.
Id. at 918, citing Daniel R.R., 874 F.3d at 1044, 1045. First, the
court asks “‘whether education in the regular classroom, with the
use of supplemental aids and services, can be achieved
satisfactorily,’ and if not, ‘whether the school has mainstreamed
the child to the maximum extent appropriate.’” Id., citing id. at
1048.
Factors to be considered include (1) the efforts by the
school to accommodate the disabled student in general education,
(2) the degree to which the child received educational benefit from
general education, and (2) the effect on the general population
resulting from inclusion of the disabled student. Id., citing id.
at 1048-49. The importance of maximizing mainstreaming is not only
the academic benefit, but the nonacademic benefit of interacting
with nonhandicapped peers. Id. Under the statute and the case law,
schools are required to take incremental steps where appropriate,
such as devising an IEP that contains both mainstream and special
education courses to determine whether they benefit the student.
Id., citing Daniel R.R., 874 F.3d at 1050.
-13-
other
words,
KISD
must
provide
its
“‘meaningful’ educational benefit.”
F.3d
at 248.
disabled
students
with
Id., citing Michael F., 118
The decision whether a local district’s IEP was
appropriate under the IDEA is a mixed question of law and fact.
Michael F., 118 F.3d at 252.
The IEP is the centerpiece of and the primary vehicle for
effecting Congressional goals under the IDEA.
U.S. 305, 311 (1988).
Honig v. Doe, 484
The IEP “sets out the disabled child’s
present educational performance, establishes annual and short-term
objectives for improvements in that performance, and describes the
specially designed instruction and services that will enable the
child to meet those objectives.”
Id., citing § 1401(9).
It must
be reviewed at least annually and revised when necessary to ensure
that the school district tailors the statutorily mandated FAPE to
the child’s unique needs.
participation
is
essential
Id., citing § 1414(a)(5).
in
the
development
assessments of the IEP’s effectiveness.
establishes
procedural
safeguards
to
Id.
and
Parental
subsequent
Therefore the Act
guarantee
parents
the
opportunity for meaningful input into all decisions about their
child’s education and the right to request review of any decisions
they consider inappropriate.
examine
all
relevant
records
Id.
Examples include the right to
relating
to
the
identification,
evaluation and educational placement of the child; participation in
meetings concerning the child’s educational placement; right to
-14-
obtain an independent educational evaluation of the child; prior
written notice of any agency proposal to change the child’s
placement or program; an opportunity to make any complaints about
the agency’s actions; and the right to an impartial due process
hearing for any such complaints.12 20 U.S.C. § 1415(b); Id. at 31112. If issues still have not been resolved, the educational agency
and the parents each have the right to seek further administrative
review, and subsequently if still necessary, file a civil action in
state or federal court.
Id. at 312, citing §§ 1415(c) and (e)(2).
When a parent contests the appropriateness of an IEP, or
whether
the
school
district
provided
to
the
student
with
disabilities a FAPE, the district court should follow a two-step
review, the first procedural, the second substantive: (1) it must
determine whether the state complied with the IDEA’s procedural
requirements, and (2) decide whether the IEP was “‘reasonably
calculated to enable the child to receive educational benefits.’”
12
Under the IDEA a parent or guardian of a disabled child may
file a complaint “with respect to any matter relating to the
identification, evaluation, or educational placement of the child,
or the provision of a free appropriate public education to such
child.”
Such a complaint results in an impartial due process
hearing, conducted according to state law.
20 U.S.C. §
1415(f)(1)(A).
In Texas, a Special Education Hearing Officer
conducts the hearing under the watch of the TEA. 89 Tex. Admin.
Code § 89.1151; 34 C.F.R. §§ 300.504-15.
Thereafter, a party
“shall have the right to bring a civil action . . . in any State
Court of competent jurisdiction or in a district court of the
United States, without regard to the amount in controversy.” 20
U.S.C. § 1415(i)(2)(A). See generally Michael Z., 561 F. Supp. 2d
at 592-93.
-15-
Juan P., 582 F.3d at 583-84, citing Rowley, 458 U.S. at 206-07.
Because one purpose of the IDEA is to “ensure that the rights
of children with disabilities and parents of such children
protected,”
20
U.S.C.
§
1400(d)(1)(B),
the
statute
are
“‘imposes
extensive procedural requirements designed to guarantee . . . an
opportunity for meaningful input into all decisions affecting their
child’s education . . . .’”
Alamo Heights Indep. Sch. Dist., 703
F.3d at 810, quoting Buser v. Corpus Christi Indep. Sch. Dist., 51
F.3d
490,
omitted).
493
(5th
Cir.
1995)(citations
and
quotation
marks
Among them, the parents must have the opportunity “to
participate
in
evaluation,
and
meetings
with
educational
respect
to
the
placement
of
the
identification,
child,
and
provision of free appropriate education to such child . . . .”
U.S.C. § 1415(b)(1); 34 C.F.R. § 300.501(b)(1).
the
20
The statute’s
procedural requirements are “designed to guarantee parents . . . an
opportunity for meaningful input into all decisions affecting their
child’s education.”
Buser, 51 F.3d at 493.
See, e.g., 20 U.S.C.
§ 1415(b)(1)(requiring that parents of a disabled child have the
opportunity
“to
participate
in
meetings
with
respect
to
the
identification, evaluation, and educational placement of the child,
and the provision of a free appropriate education to such child.”)
Procedural requirements include such matters as being given proper
notice
of
meetings,
releasing
test
evaluations
and
behavior
reports, and providing independent evaluation upon request. Ruffin
-16-
v. Houston Indep. Sch. Dist., 459 Fed. Appx. 358, No. 10-20589,
2012 WL 171627, at *4 (5th Cir. Jan. 23, 2012).
Nevertheless
“‘procedural defects alone do not constitute a violation of the
right to a FAPE unless they result in the loss of educational
opportunity.’”
Alamo Heights Indep. Sch. Dist., 703 F.3d at 810,
quoting Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 812 (5th
Cir. 2003)(citations and internal question marks omitted).
For the substantive prong of the Rowley test, the Fifth
Circuit considers four factors as “indicators of whether an IEP is
reasonably calculated to provide a meaningful educational benefit
under the IDEA”: whether “(1) the program is individualized on the
basis of the student’s assessment and performance; (2) the program
is administered in the least restrictive environment13; (3) the
services are provided in a coordinated and collaborative manner by
the key ‘stakeholders’; and (4) positive academic and non-academic
13
Title 20 U.S.C. § 1412(a)(5)(A) states,
To the maximum extent appropriate, children with
disabilities . . . [should be] educated with children who
are not disabled, and special classes, separate
schooling, or other removal of children with disabilities
from the regular educational environment [should occur]
only when the nature or severity of the disability of a
child is such that education in regular classes with the
use of supplementary aids and services cannot be achieved
satisfactorily.
As quoted by Juan P., 582 F.3d at 585-86 (observing the IDEA’s
strong preference in favor of mainstreaming must be weighed in
tandem with the Act’s main goal of ensuring that a child be
provided with a FAPE. 20 U.S.C. § 1412(a)(5)(A).)
-17-
benefits are demonstrated.”
Juan P., 582 F.3d at 584, citing
Michael F., 118 F.3d at 253.
“[T]hese factors are . . . intended
to
in
guide
a
district
court
the
fact-intensive
inquiry
of
evaluating whether an IEP provided an educational benefit,” and the
court does not err in affording more or less weight to one than the
other.
Michael Z., 580 F.3d at 294.
The court may consider
factors such as whether the IEP addresses any specific behavioral
problems, any classroom modifications, seating, class placements,
tutors, counseling, amount of time allowed to complete assignments,
providing supplementary aids, and any other accommodations to the
student’s needs. Assistive technology is defined by the statute as
“any service that directly assists a child with a disability in the
selection, acquisition, or use of an assistive technology device.”
20 U.S.C. § 1401(2); Alamo Heights Indep. Sch. Dist., 703 F.3d at
812. Assistive technology includes “the evaluation of the needs of
such child, including a functional evaluation of the child in the
child’s customary environment.”
20 U.S.C. § 1401(2)(A).
If
needed, these services are part of providing a FAPE to a disabled
student.
20 U.S.C. § 1400(d)(1)(A).
Plaintiffs have charged KISD
with failure to evaluate and properly diagnose Rob’s dyslexia.
A
plaintiff contending that the school district’s IEP fails to
provide
the
student
with
a
FAPE,
an
appropriate
IEP,
and
educational benefits bears the burden of proving by a preponderance
of the evidence that the school district has failed to comply with
-18-
the IDEA.
Ruffin v. Houston Indep. Sch. Dist., 459 Fed. Appx. 358,
No. 10-20589, 2012 WL 171627, at *1 (5th Cir. Jan. 23, 2012).
A party challenging implementation of the IEP must show that
the
“school
board
or
other
authorities
failed
substantial or significant provisions of the IEP”;
to
implement
the failure of
the local education agency “to provide all the services and
modifications in an IEP does not constitute a per se violation” of
the statute.
the
Bobby R., 200 F.3d at 349.
handicapped
student
to
improve
educational benefit from his IEP.
in
Nor is it necessary for
every
Id. at 350.
area
to
obtain
School districts
are not required to cure or erase the differences between disabled
and non-disabled children, but only to develop an individualized
program capable of providing an educational benefit to the child.
D.B. ex rel. C.B. v. Houston ISD, No. Civ. A. H-06-354, 2007 WL
2947443, at *11 (S.D. Tex. Sept. 29, 2007), citing Daniel R.R. v.
State Bd. of Educ., 874 F.2d 1036, 1047 (5th Cir. 1989); Rowley, 458
U.S. at 200-01 (“the intent of the Act was more to open the door of
public education to handicapped children on appropriate terms than
to guarantee any particular level of education once inside.”).
Moreover while the school district and experts may disagree over
the diagnosis of a student’s disability, “[t]he IDEA charges the
school with developing an appropriate education, not with coming up
with a proper label with which to describe [the child’s] multiple
disabilities.”
Heather S. v. Wisconsin, 125 F.3d 1045, 1055 (7th
-19-
Cir. 1997).
Eligibility under the IDEA terminates with the earlier of high
school graduation or the student’s twenty-first birthday.
20
U.S.C. § 1412(1)(a)(2005).
The statute of limitations for a parent or school district to
file for a due process hearing under the IDEA is found in 20 U.S.C.
§ 1415(f)(3)(C)[emphasis added by the Court]:
A parent or agency shall request an impartial
due process hearing within 2 years of the date
the parent or agency knew or should have known
about the alleged action that forms the basis
of the complaint, or if the State has an
explicit time limitation for requesting such a
hearing under this subchapter, in such time as
the State law allows.
There are two exceptions under 20 U.S.C. § 1415(f)(3)(D):
The timeline described in subparagraph (C)
shall not apply to a parent if the parent was
prevented from requesting the hearing due to–
(i) specific misrepresentations by the local
educational agency that it had resolved the
problem forming the basis of the complaint; or
(ii) the local education agency’s withholding
of information from the parent that was
required under this subchapter to be provided
to the parent.
The IDEA limitations period, with its express exceptions, is not
subject to equitable tolling.
Supp. 2d
D.C. and A.C. v. Klein ISD,
F.
, No. H-09-1714, 2010 WL 1798943, *7 (S.D. Tex. May 5,
2010)(and cases cited therein).
The State of Texas has expressly
established a shorter limitations period than that in 20 U.S.C. §
-20-
1415(f)(3)(C) in the IDEA.
Under Texas law, 19 Tex. Admin. Code §
89.1151, there is an explicit one-year time period for requesting
a due process hearing:
A parent or public agency must request a due
process hearing within one year of the date
the complainant knew or should have known
about the alleged action that serves as the
basis for the hearing request.
If the court determines that a school district met procedural
requirements
and
implemented
an
appropriate
IEP
reasonably
calculated to enable the child to receive educational benefits, the
District has no further responsibility.
Rowley, 458 U.S. at 207;
Michael Z., 561 F. Supp. 2d at 598.
If not, where a “suitable or ‘appropriate’ public educational
placement is not available for a disabled child within a state or
local school district, the district must pay the costs of sending
the child to an appropriate private institution.”
Michael Z., 561
F. Supp. 2d at 598-99, citing Michael F., 118 F.3d at 248, and
School Committee of the Town of Burlington v. Dep’t of Educ. of
Massachusetts, 471 U.S. 359, 369 (1985)(concluding that the IDEA
authorizes courts to ”reimburse parents for their expenditures on
private special education for a child if the court ultimately
determines that such placement, rather than a proposed IEP, is
proper under the Act”).
Title 20 U.S.C. § 1412(a)(10)(C)(ii)
provides,
If the parents of a child
previously received special
-21-
with a disability who
education and related
services under the authority of a public agency, enroll
the child in a private elementary or secondary school
without the consent of or referral by the public agency,
a court or hearing officer may require the agency to
reimburse the parents for the cost of that enrollment if
the court or hearing officer finds that the agency had
not made a free appropriate public education available to
the child in a timely manner prior to that enrollment.
To receive reimbursement for private education, a handicapped
student must demonstrate that (1) his placement at the public
school was inappropriate under the IDEA, and (2) that his private
school placement was proper under the statute.
Florence County
Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993).
“Parents ‘are
entitled to reimbursement only if a federal court concludes both
that the public placement violated the IDEA and the private school
placement was proper under the Act.’” Forest Grove School Dist. v.
T.A., 557 U.S. 230, 246 (2009), citing Carter 520 U.S. 15
Even if
these requirements are met, the district court retains “discretion
to reduce the amount of a reimbursement award if the equities so
warrant--for instance, if the parents failed to give the school
district adequate notice of their intent to enroll the child in
private
school.
generally
presume
In
considering
that
the
equities,
public-school
officials
performing their obligation under IDEA.”
courts
are
should
properly
Id. at 247, citing
Schaffer v. Weast, 546 U.S. at 62-63. “[P]arents who ‘unilaterally
change their child’s placement during the pendency of review
proceedings, without consent of state or local officials, do so at
their own financial risk.’” Carter, 510 U.S. at 15, quoting School
-22-
Comm. of Burlington v. Dept. of Educ. of Mass., 471 U.S. 359, 37374 (1985).
“An administrative decision [by the TEA Hearing
officer] in favor of parents who placed their child in a private
school after they rejected a proposed IEP constitutes an agreement
by the state to the change the child’s placement, making the new,
private school placement the current educational placement of the
child.” Houston Indep. Sch. Dis. v. V.P. ex rel. Juan P., 582 F.3d
at 591, citing Burlington, 471 at 371-72.
The IDEA does not expressly provide parents with a private
right of action for reimbursement of tuition, but in Burlington,
the Supreme Court held that the broad grant of authority and
discretion to a federal court under the statute to “grant such
relief as the court determines is appropriate” includes “the power
to
order
school
authorities
to
reimburse
parents
for
their
expenditures on private special education for a child if the court
ultimately determines that such placement, rather than a proposed
IEP, is proper under the Act.”
14
471 U.S. at 369-70.14
It further
The Supreme Court reasoned,
[T]he review process is ponderous.
A final judicial
decision on the merits of an IEP will in most instances
come a year or more after the school term covered by that
IEP has passed.
In the meantime, the parents who
disagree with the proposed IEP are faced with a choice:
go along with the IEP to the detriment of their child if
it turns out to be inappropriate or pay for what they
consider to be the appropriate placement. If they choose
the latter course, which conscientious parents who have
adequate means and who are reasonably confident of their
assessment normally would, it would be an empty victory
-23-
held that parents who think that their child’s IEP fails to meet
IDEA requirements may, at their own financial risk, unilaterally
remove the child from public school and place the child in private
school and then seek retroactive reimbursement of tuition from the
state.
471 U.S. at 370.
Court’s Review of the Factual Background and the Evidence
After a careful, de novo review of the record, the Court
agrees with KISD’s motion for summary judgment and concludes that
Rob Wood’s 2006-2007 IEP and his proposed 2007-2008 IEP were
appropriate, that he was provided with a FAPE, that he was a
successful student in mainstream classes with the aid of various
IDEA accommodations and the individualized IEP, and that KISD’s
motion for summary judgment should be granted and Plaintiffs’
motion denied.
While Plaintiffs complain of the IEP and its
implementation and of KISD’s allegedly spotty monitoring of Rob’s
school performance, the record undermines their claims.
Moreover
to have the court tell them several years later that they
were right but that these expenditures could not in a
proper case be reimbursed by the school officials. If
that were the case, the child’s right to a free
appropriate public education, the parents’ right to
participate fully in developing a proper IEP, and all of
the procedural safeguards would be less than complete.
Because Congress undoubtedly did not intend this result,
we are confident that by empowering the court to grant
“appropriate”
relief
Congress
meant
to
include
retroactive reimbursement to parents as an available
remedy in a proper case.
471 U.S. at 370.
-24-
even if there were occasional lapses in the implementation of the
IEP and in monitoring by teachers and administrators, under the
IDEA it is well established by case law that where a disabled
student is mainstreamed in the regular education curriculum, he is
monitored by examinations, report cards, grade advancement, and
standardized tests, i.e., “the system itself monitors the progress
of the child.”
Rowley, 458 U.S. at 2402.
Before Rob became a student in KISD, he was evaluated in 1999
and 2002 for special education services by the Scottish Rite
Hospital (Vol. II, p. 2410) in Dallas, Texas in 1999 and by other
school districts Rob had attended in Texas, Pennsylvania and New
York.15
Testimony of Diane Hodge, Certified Administrative Record
(“CAR”) Vol. V at 1318-1319.
Rob first entered KISD in the sixth
grade, in regular classes, in 2002. Following an ARDC meeting that
fall, he was designated as a special education student in the area
of learning disabilities and remained so until he withdrew from
KISD after the 2006-2007 (his tenth-grade) school year and before
the start of the 2007-2008 (his eleventh-grade) school year.
Under Texas’ shortened one-year statute of limitations from
15
In 1999 the Scottish Rite Hospital identified Rob as
“dyslexic” based on his lack of fluency and spelling (Scottish Rite
Evaluation, CAR Vol. II at 594-610; Hodge, CAR Vol. V at 13191320). Although he was found to have learning difficulties, he was
never evaluated explicitly as “dyslexic” in the public schools he
attended. Arbruster Evaluation, CAR Vol. III at 2402; West Grove
Evaluation, CAR Vol. III at 2428; Pittsford Evaluation, CAR Vol.
III at 2442.
-25-
the date the complainant knew or should have known about the
alleged action that is the basis for requesting a due process
hearing before a TEA Hearing Officer, 19 Tex. Admin. Code §
89.1151,16 the relevant period for Plaintiffs’ IDEA claims is
September 12, 2006-September 12,2007.
KISD first evaluated Rob in 2004, incorporating all his
previous evaluations into that evaluation, as well as into a
subsequent evaluation performed by KISD in 2007.
KISD 2004
Evaluation, CAR Vol. III at 1368-1402; KISD 2007 Evaluation, CAR
Vol. III at 1410-1443; Testimony of Diane Hodge, CAR Vol. V at
1318-1337 and 1338-1348.
Rob was also privately evaluated in the
summer of 2007 by Dr. Robert Hampson of Southern
Methodist
University, but Plaintiffs did not provide that evaluation to KISD.
Hampson Evaluation, CAR Vol. IV at 4697-4713; Testimony of Fred
Shafer, CAR Vol. V at 1787.
Rob’s 2004 evaluation revealed a gap between his tested
intelligence and his tested achievement in written expression,
basic reading skills, and math calculation.
Vol. III at 1390.
KISD 2004 Evaluation,
Nevertheless he performed above average in all
of his mainstream classes.
He did not qualify as a student with
dyslexia under the evaluation established in 2004’s Texas Dyslexia
16
See also 34 C.F.R. § 300.507 and 300.511(f); D.C. v. Klein
Indep. Sch. Dist., 711 F. Supp. 2d 739, 745 (S.D. Tex.
2010)(holding that parents’ claims arising out of an ARDC meeting
and the IEP developed at the meeting were time-barred.).
-26-
Handbook.
KISD 2004 Evaluation, CAR Vol. III at 1368-1403; 2004
Dyslexia Handbook, CAR Vol. IV at 3995-405117; Testimony of Diane
Hodge, CAR Vol. V at 1320-1327.
The ARDC classified him as
learning disabled and eligible for educational services, so it
designed an individualized IEP for him.
KISD 2004 Evaluation, CAR
Vol. III, at 1368-1403; Testimony of Diane Hodge, CAR V at 1335.
17
A clinical neuropsychologist and expert in the area of
assessment, Dr. Bonnie Brookshire reviewed the evaluations of Rob
by KISD in 2004 and 2007. She testified that the 2003 testing was
appropriate for dyslexia, that in Texas the Dyslexia Handbook
published by the TEZ governs the diagnosis and assessment of
dyslexia, an impairment which is categorized as a “reading
disorder.” She identified the tests used by KISD to evaluate Rob
and testified that they met the Texas criteria for testing for
dyslexia and that Rob is not dyslexic.
Testimony of Dr.
Brookshire, CAR Vol. V at 264-268, 272-277, 317-320. Psychologist
and expert Dr. Gail Cheramie, an Associate Professor of the School
Psychology Program at the University of Houston-Clear Lake, after
reviewing the record of all evaluations and tests, also testified
that Rob was not dyslexic under the testing guidelines of the TEA.
CAR Vol. V at 1678-1683. Dr. Brookshire and Dr. Cheramie further
stated that it was not necessary to reconfirm the 2004 findings in
2007. Testimony of Dr. Brookshire, CAR Vol. V at 264-268, 272277, 317-320; Testimony of Dr. Cheramie, CAR Vol. V at 1678-1683.
Diane Hodge, an appraisal specialist, testified that under
Texas criteria in 2004, a “reading disorder” was any deficiency
between cognitive functioning and reading skills: the TEA Dyslexia
Handbook identified as specific impairments accompanying and
suggesting the existence of dyslexia difficulty in reading words in
isolation, decoding nonsense word, slow and inexact oral reading,
lack of fluency while reading, and problems learning to spell. In
the
tests
Rob
was
given,
Rob
did
not
evidence
these
characteristics. Because under Texas law dyslexia is a disorder of
constitutional origin and because in 2004 Rob showed that his
cognitive abilities were not impaired, Hodge, too, testified that
it was not necessary to test again for dyslexia in 2007. CAR Vol.
V at 1310-1434.
Furthermore Rob’s parents declined an opportunity for KISD to
reexamine Rob for dyslexia in August 2007. ARD/IEP 8/16/07 CAR
Vol. III at 1940-1941.
-27-
In 2005 Rob became a 9th grade student in KISD’s Seven Lakes
High School, still enrolled in regular classes, but provided with
special education support from a special education teacher in his
English, Algebra, World Geography and Biology classes.18
4/25/06, CAR Vol. III at 1736-1739.
ARD/IEP
His 9th grade accommodations
were described to some degree in the IEP designed for Rob on April
25, 2006.
ARD/IEP 4/25/06, CAR Vol. III at 1736-1739; R.W. School
Transcript and Grades CAR Vol. III at 2118; TAKS Scores, CAR Vol.
III at 2118, 2125. Furthermore he received above-passing grades in
all his classes; he also passed the Texas Assessment of Knowledge
and
Skills
(the
“TAKS”
test).
Id.
He
was
additionally
accommodated with access to spelling devices, adaptive devices,
frequent feedback and prompts, clearly defined and consistent
limits, and positive reinforcement, and he participated in and
received
extra
tutorials
“Spartan Support.”
during
a
study
hall
program
called
ARD/IEP 4/25/06, CAR Vol. III at 1736-1739;
Testimony of Deborah Atchison, CAR Vol. V at 870, 874-875, 891,
892; Academic Transcript and Grades, CAR Vol. III at 2118-2124.
His academic achievements were correctly matched by his grades.
Cumulative Grades by Teachers, 10th grade, CAR Vol. III at 20292104; Academic Transcript and Grades, CAR Vol III, at 2121.
He
finished tenth grade with a ranking of 302 out of 559 regular
18
This year’s IEP was prepared and implemented beyond Texas’
one-year limitations period for requesting a due process hearing
under 19 Tex. Admin. Code § 89.1151
-28-
education students, with a grade point average of 3.33.
E-mail
from principal Christie Whitbeck to F. Shafer, CAR, Vol. III at p.
2112; Academic Transcript and Grades, CAR Vol. III at 2121.
Between April and May 2006, toward the end of Rob’s ninth
grade year, there was an ARDC meeting with Rob’s parents and all
staff members required by the statute to design Rob’s IEP program
for Rob’s tenth grade year.
John and Rene Woods agreed to the
proposed program, which was to be put in place from September 12,
2006 until Rob withdrew shortly after August 16, 2007.
4/25/06 and 5/17/06, CAR Vol. III at 1729 and 1768.
ARD/IEP
The annual
goals of this IEP in Rob’s tenth grade year (2007-2007) were to
master the Texas Essential Knowledge and Skills (“TEKs”) in all his
academic classes, with IDEA accommodations to be evaluated by
teacher observation, work samples, and grade reports.
5/17/06, CAR Vol. III at 1757-1758.
ARD/IEP
Rob’s short-term goals for
study and organization skills were raised from 70% completion
expectations
challenge.
to
85%
completion
Id. at 1767.
expectations
to
heighten
the
He was to continue to receive special
education instruction by special education teachers in his regular
classes for English, Integrated Physics & Chemistry, World History,
and Geometry, with certain accommodations in all of his classes,
including athletics.
Id. at 1759-1760.
Weekly progress reports
about his performance were to be sent home by his special education
case manager, Nancy McCanlies.
Documents from McCanlies to Wood,
-29-
CAR Vol. IV, generally 3674-3757.
In addition, reports on his
progress on his IEP goals were regularly provided. CAR Vol. III at
1957-2028. Rob was successful in his school performance. Progress
Reports, CAR Vol. III, pp. 1949-1956; Contact Hours, CAR Vol. III,
at pp. 1957-2028; Cumulative Grades in 10th grade by Teachers, CAR
Vol. III at pp. 2029-2104; Student Profile, CAR III, at pp. 21052117; Academic Transcript and Grades, CAR Vol. III and 2118-2124;
TAKS results, CAR Vol. III at 2125-2162; Documentation from Nancy
McCanlies, CAR Vol. IV at pp. 3875, 3877, 3879, and 3910.
There is also evidence of regular communication among the
school staff, McCanlies, and the Woodses about Rob’s progress.
Documents
from
Instructional
McCanlies
Staff,
CAR
to
John
Vol.
IV
and
at
Renee
Woods
(generally)
and
the
3674-3758;
Documents to McCanlies from Parents and Instructional Staff, CAR
Vol. IV at (generally) 3759-3994; Testimony of Assistant Principal
Bill Roberts, CAR Vol. V at 1020-1022.
During his tenth grade year Rob began playing extracurricular
football, outside of his IEP and his special education program.
After he missed some practices and his coach, Kevin O’Keefe,
recommended in September 2006 that he transfer to track, Rob’s
father became angry that his son was “kicked off” the football team
and voiced complaints at multiple ARDC meetings that year. ARD/IEP
1/08/07, CAR Vol. III at 1872; ARD/IEP 10/26/06, 11/13/06, and
12/7/06, CAR Vol. III at 1772, 1795, and 1820, respectively
-30-
The
record, however, shows that in a private meeting with his coach,
Rob indicated that he wanted to quit, but said otherwise when his
father was around.
CAR Vol. V at 1593-1594.
is
extracurricular
an
optional,
Furthermore football
activity
and,
contrary
to
Plaintiffs’ claims, not a program in Rob’s IEP nor necessary for
Rob to benefit from school or to receive a FAPE.
ARD/IEP 1/08/07,
CAR Vol. III at 1872. Furthermore, when Rob was offered the chance
to continue to play football, he rejected the offer.
Id. at 1595;
Testimony of Head Football Coach Kevin O’Keefe, CAR Vol. V at 1599.
John Wood conceded that Rob was given the opportunity to rejoin the
football team.
CAR Vol. V at 728-729.
Rob did join the varsity
and junior varsity track and field in the spring of 2007.
ARD/IEP
12/07/06, CAR Vol. III at 1841; Testimony of Track Coach Marvin
Rathke, CAR Vol. V at 1522.
In
October
2006,
purportedly
because
of
such
problems,
Plaintiffs requested that Rob be transferred to Taylor High School
Testimony shows that Taylor High School was a “closed campus,”
i.e., one denying transfers in because it had reach its student
capacity.
Testimony of Assistant Principal Bill
Roberts. CAR Vol
V, at 1012-1013; Testimony of Deborah Atchison, CAR Vol. V at 866.
Accordingly at first KISD denied the request.
After the parent
appealed and the transfer was granted, Plaintiffs decided not to
take it after all.
During
his
ARD/IEP 12/07/06 CAR Vol. III at 1843.
tenth
grade
year,
-31-
however,
Rob
began
using
marijuana.
Around April 2007 he was evaluated and treated by a
private psychiatrist, Dr. Guerrero, but the records were not shared
with KISD.
Guerrero Evaluation, CAR Vol. III, at 2392-2401;
Testimony of Diane Hodge, CAR Vol. V, at 1348-1349.
Nevertheless,
Rob continued to perform well in school.
In 2007 Rob was re-evaluated by KISD and Diane Hodge for
eligibility for special education services.
CAR Vol. V at 1185.
KISD 2007 Evaluation,
He had passed all of his TAKS tests.
English
Language Arts (2146); Math (2177); Science (2185); and Social
Studies (2195). CAR, Vol III at 1411.
He was given intelligence
and adaptive behaviors scales, academic achievement tests, and
detailed evaluation instruments to assess his reading abilities.
Id. at 1404-1419.
For the first time, under new 2006 IDEA
regulations, 34 C.F.R. § 300.309(a)(1)(v), established by the U.S.
Department of Education, Rob was tested in 2007 for learning
disability eligibility in reading fluency and was identified as
learning disabled in that area.
Testimony of Deborah Hodge, CAR
Vol. III at 1341-1342; Testimony of Dr. Gail Cheramie, CAR Vol. V
at 1693. Rob’s scores in written expression had improved and he no
longer qualified as learning disabled in that area.
Testimony of
Deborah Hodge, CAR Vol. V at 1340; KISD 2007 Evaluation, CAR Vol.
III at 1415. Deborah Hodge reviewed Rob’s previous evaluations for
dyslexia, as defined under the TEA guidelines, including the 2004
evaluation finding he did not have that condition, and decided it
-32-
was not necessary to test him again for that impairment, and his
parents did not request that it be done.
Testimony of Deborah
Hodge, CAR Vol. V at 1342; KISD 2007 Evaluation, CAR Vol. III at
1404-1408. On December 7, 2004, John and Renee Woods agreed to and
signed his proposed evaluation plan, which indicated the areas to
be assessed. KISD 2007 Evaluation, CAR Vol. III at 1409; Testimony
of John Wood, CAR Vol. V at 689.
All the expert witnesses
testifying about this evaluation stated that it was professionally
appropriate.
Testimony of clinical neuropsychologist Dr. Bonnie
Brookshire, CAR Vol. V at 275-276; Testimony of Deborah Hodge, CAR
Vol. at 1348, 1407, 1409; Testimony of Dr. Gail Cheramie, CAR Vol.
at 1690-1695.
This 2007 evaluation satisfied all requirements for
a complete reevaluation under the statute and Rob was throughly
reassessed in all required areas.
KISD 2007 Evaluation, CAR Vol.
III at 1411, 1417, 1420, 1428; Testimony of Dr. Brookshire, CAR
Vol. V at 276; Testimony of Deborah Hodge, CAR Vol. V at 1338-1343;
Testimony of Dr. Cheramie, CAR Vol. V at 1691-1693.
Because of
Rob’s high performance in class and acceptable performance on the
Taks tests, the evaluation did not decide his eligibility for
special education, which was left for the ARDC.
In the Spring of 2007, Rob’s parents and the ARDC met to plan
Rob’s IEP for the 11th grade, 2007-2008, and decided to continue his
eligibility for special education.
1922.
ARD/IEP 5/21/07, CAR Vol. at
Given his better performance in school and on standardized
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tests, the plan proposed he be given in-class support in two,
instead of four, core academic classes and instruction in a reading
improvement class, Read 180, which was given to dyslexic students
and also to Rob pursuant to his parents’ request. ARD/IEP 8/16/07,
CAR Vol. III at 1923, 2939; Testimony of Dr. Brad Reitz, CAR Vol.
V at 1750-1755.
They also discussed the question of a dyslexia
label for Rob and related special services, but it was explained
that Rob did not meet the TEA requirements for dyslexia services.
ARD/IEP 8/16/07, CAR Vol. III at 1922, 1940-1941.
Nevertheless
KISD offered to test Rob again for dyslexia and to pay for an
independent educational evaluation, but his parents refused.
Id.
at 1940-1941.
Unknown to KISD at the time of this final ARDC meeting,
instead of following through with the IEP at KISD for Rob’s
eleventh grade year, his parent had contacted and enrolled him in
the residential Pine Ridge School in Vermont for disabled students.
Testimony of Jean Foss of the Pine Ridge School, CAR Vol. V at 669;
Testimony of Wood, CAR, Vol. V at 786.
Pine Ridge School offered
instruction under the Orton-Gillingham approach, which KISD’s
experts testified was “inappropriate” for Rob’s age and level.
Testimony of Dr. Brookshire, CAR Vol. V at 310, 312; Testimony of
Deborah Hodge, CAR Vol. V at 1361; Testimony of Dr. Cheramie, CAR
Vol. V at 1702, 1728-1729.
His performance there was similar to
his previous achievements at KISD.
-34-
Table of Standardized Test
Scores, CAR Vol. IV at 4691.
John and Renee Woods seek reimbursement for their private
school costs for Rob at Pine Ridge.
They offered no evidence of
their expenses other than a $50 application fee and no expert
testimony about Rob’s classroom performance there. The Court finds
that Plaintiffs have not shown that KISD violated procedural
requirements of the IDEA nor that his individualized IEP was not
reasonably
calculated
educational
benefits.
to
enable
Thus
his
him
to
placement
receive
at
meaningful
KISD
was
not
inappropriate under the IDEA, and he is not entitled to tuition
reimbursement for his subsequent placement at the private Park
Ridge School for students with disabilities in Vermont.
As stated
by the Fifth Circuit in R.H., 607 F.3d at 1014-15,
The IDEA . . . makes removal to a private school
placement the exception, not the default. The statute
was designed primarily to bring disabled students into
the public educational system and ensure them a free
appropriate public education. Courts should therefore be
cautious before holding that a school district is
required to place a child outside the available range of
public options. [emphasis in original]
Evidence shows that Rob was a popular, well-liked student at
KISD.
Testimony of Bill Roberts, CAR Vol. V at 1006, 1024;
Testimony of Rebecca Greene, CAR Vol. V at 108019; Testimony of Dan
19
Rebecca Greene was Rob’s case manager and his 9th and 10th
grade co-teach English teacher, coordinating her work with that of
his regular education English teacher, Lydia Dennis, and that of
his case manager, Nancy McCanlies.
She testified that special
education modifications made for Rob in the classroom included a
word processor when necessary, modification of the format of tests
-35-
Miller, CAR Vol. V at 125420; Testimony of Martin Rathke, CAR Vol.
V at 1535.
He took courses that prepared him for college and was
on track for graduating with 24 credits completed.
Testimony of
Deborah Atchison, CAR Vol. V at 870-71; ARD/IEP 10/26/06, CAR Vol.
at 1872.
Court’s Decision
As a threshold matter, the Court agrees with KISD as a matter
of law that Plaintiffs do not have a claim under the Texas Dyslexia
Act, Tex. Educ. Code § 38.003, which does not provide a private
cause of action, and under its implementing regulation, 19 Texas
Administrative Code § 74.28.
These provisions do not relate to
special education for disabled children in Texas.
See KISD’s
amended motion, #103 at pp. 46-50.
Nor is there any evidence in the record to support Plaintiffs’
claims of retaliation.
Id. at 45-46; KISD’s Objections, #108 at
but never of their content, audio texts, study guides and study
reviews, and powerpoints. She stated that his examination grades
were accurate, that he was able to evaluate, synthesize, and
analyze at a high level, and that he kept up with his school work.
CAR, Vol. V at 1074-1176.
Lydia Dennis, Rob’s regular education English teacher, also
testified that Rob was doing 10th-grade-level work, that Rob’s tests
were modified in format, but never in content, and that he
progressed in her class and was capable of college work. CAR Vol.
V at 1435-1507.
20
Dom Miller, Rob’s regular World History teacher, testified
that Rob was a competent reader, never made below a “B,” used 10thgrade-level textbooks and reading material, and performed at the
10th grade TEKS level. Miller coordinated his work with that of
Rob’s special education instructor Mr. McIlvain.
-36-
pp. 11-12.
As noted, the two key issues on an appeal of the Hearing
Officer’s determination that Rob’s IEPs at KISD were appropriate
and provided Rob with meaningful educational benefits and a FAPE
are (1) whether the state complied with the IDEA’s procedural
requirements21 and (2) whether the IEP was reasonably calculated to
enable Rob to receive educational benefits.22
Michael Z., 580 F.3d
21
See generally, 20 U.S.C. § 1415. For example, § 1414(b)(1)
identifies as required procedures,
An opportunity for the parents of a child with a
disability to examine all records relating to such child
and to participate in meetings with respect to the
identification, evaluation, and educational placement of
the child, and the provision of a free appropriate public
education to such child, and to obtain an independent
educational evaluation of the child.
Moreover, as noted supra, while a procedural violation by itself
may support a “finding that, as a matter of law the school has
failed to provide” a FAPE, to be actionable, the procedural
violation “must result in the loss of an educational opportunity.”
Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 811 (5th Cir.
2003), citing Buser by Buser v. Corpus Christi Indep. Sch. Dist.,
51 F.3d 490, 493 (5th Cir. 1995).
22
At meetings attended and participated in by Rob’s parents,
who were given notice of their procedural safeguards and who played
a significant role in creating the IEPs along with teachers, other
school personnel and educational experts. Individualized IEPs are
developed by agreement and contain a statement of the special
education, related services, and accommodations that the school
district must provide to the child with disabilities. 20 U.S.C. §
1414(d)(1)(B) and (A); Klein Indep. Sch. Dist. v. Hovem, 690 F.3d
390, 395 (5th Cir. 2012). The school district must then implement
the IEP and periodically review them, as KISD did here. Hovem, id.
Parents must be, and were here, allowed to raise any complaints
they have to the identification, evaluation or placement of the
child or to whether the child was receiving a FAPE as required
under 20 U.S.C. § 1415(f)(3)(E)(i). Id. If the parents are not
-37-
286 at 293, citing Rowley, 458 U.S. at 206-07.
There is no dispute that KISD complied with the IDEA’s
procedural requirements from September 12, 2006 through September
12, 2007, the relevant one-year limitations period under 19 Tex.
Admin. Code § 89.1151, covering his 10th-grade and proposed 11thgrade IEPs, so the Court addresses the second prong.
The Court finds no clear error in the Hearing Officer’s fact
findings
and
concludes,
administrative
record,
based
that
on
its
de
novo
KISD
has
shown
by
review
more
of
the
than
a
preponderance of the evidence that Rob’s 2006-2007 and proposed
2007-2008 IEPs were reasonably calculated to enable him to receive
some educational benefit, as is evidenced inter alia by his passing
10th grade and advancing to 11th grade.
considered
in
this
decision
are
(1)
The four factors to be
whether
the
IEP
was
individualized to Rob based on his evaluations, assessments and
performance; (2) whether the IEP was administered in the least
restrictive environment; (3) whether services were provided in a
coordinated and collaborative manner by the key stakeholders; and
(4)
whether
positive
academic
and
nonacademic
benefits
were
satisfied with the school district’s effort to resolve any issues,
they may request an impartial due process hearing before an
independent, state education agency Hearing Officer pursuant to 20
U.S.C. § 1415(f)(1)(A). Id. If still aggrieved after exhausting
these administrative procedures, the parents and child may “bring
a civil action with respect to the complaint” in state or federal
court under 20 U.S.C. § 1415(i)(2)(A).
Id.
The Woodses have
pursued these administrative procedures all the way to judicial
review, here.
-38-
achieved.
Michel F., 118 F.3d at 253.
The Court addresses each
factor in turn.
1.
The IEPs were reasonably calculated to enable Rob to achieve
more than passing marks and standardized test scores in regular
education classes with special education accommodations where
needed, and to advance from grade to grade. Despite John and Renee
Woods’ continuous complaints and disagreement about his program,
Rob’s record (including grades and test scores), the evaluations of
expert witnesses and his teachers’s testimony demonstrate that he
clearly progressed and enjoyed meaningful educational benefits
during his time in KISD. His mainstream placement provided him not
only with academic benefit, but with the benefit of interaction
with nondisabled peers and nonacademic benefit of participating in
the affairs of the community in which he resided, benefits that he
was denied when he transferred to the Pine Ridge school for
disabled students in Vermont.
Teague, 999 F.2d at 132.
The
testimony of KISD’s expert witnesses, teachers, and administrators
all attest to the fact that the IEPs were reasonably calculated to
and did provide Rob with a meaningful educational benefit under the
IDEA.
Numerous experts testified that KISD’s evaluations were
thorough
and
competent,
and
that
KISD
provided
established,
professional reasons why a second evaluation for dyslexia in 2007
was not required; it did evaluate Rob’s reading disability in 2007
and responded to his identified problems in reading fluency with
-39-
accommodations in the IEP.
2.
Rob’s 2006-2007 IEP and his proposed 2007-2008 IEP both
utilized the least restrictive environment.
In both he was
mainstreamed into regular classes in all subjects, but in those
where he needed special education accommodations he was provided
inter alia with special education teachers, spell-check, calculator
and other devices, shortened assignments, increased time to do
assignments, Read 180 program, positive feedback and reinforcement,
and optional tutorials during the Spartan Support study halls.
In
the second IEP where his teacher evaluations and test scores
demonstrated his improvement, the number of accommodations was
accordingly reduced.
3.
As supported by the record, Rob’s special education services
were provided in a collaborative and coordinated manner by the key
stakeholders.
As noted, the statutorily required participants
attended all the ARDC meetings, and Rob’s parents were fully
informed about his status throughout his enrollment in KISD.
The
record is replete with emails and other means of communication
demonstrating that KISD and the Woodses developed Rob’s IEP over
numerous meetings in a collaborative and coordinated manner in
meetings with ARDC, staff, and administrators.
The meetings
addressed any concerns or complaints Rob and his parents raised,
ranging from alleged dyslexia to matters outside of the IDEA, such
as his participation in football and track. Plaintiffs complained
-40-
at various times about his teachers and school administrators’
inadequate communications with them, and their complaints were
addressed at follow-up meetings from the end of December 2005-2006,
leading to the development of a communications plan.
When the
Woodses barraged, indeed harassed, the teachers with critical
emails, however, Principal Christie Whitbeck informed John Woods by
letter that Plaintiffs should no longer communicate directly with
Rob’s teachers, but should address all requests for information
about Rob to her or to assistant principal William Roberts.
The
record demonstrates that regular reports to the parents regarding
Rob’s progress were made. Testimony of Deborah Atchison, Vol. V at
867-868; email from John Wood to Nancy McCanlies, CAR Vol. II at
931; Progress Reports, CAR Vol. III at 1949-1952; and Contact
Hours,
CAR
Vol.
III
at
1957-2026.
The
evidence
undermines
Plaintiffs’ claims that the communication problem was not resolved.
Moreover, as noted, KISD was not required by the IDEA to defer to
the parents’ demands for a particular method of addressing their
son’s learning disabilities.
White v. Ascension Parish Sch. Bd.,
343 F.3d at 380 (The parents’ “right to provide meaningful input is
simply not the right to dictate an outcome and obviously cannot be
measured by such.”), citing Blackmon, 198 F.3d at 656 (where there
is
no
“serious
hamper[ing]”
of
a
parent’s
opportunity
to
participate in the formulation process, the IDEA requirement of
meaningful
parental
input
is
satisfied
-41-
notwithstanding
that
parent’s desired program was not selected), and Lachman, 852 F.2d
at 297 (7th Cir.)(“[P]arents, no matter how well-motivated, do not
have a right under [the IDEA] to compel a school district to
provide a specific program or employ a specific methodology in
providing for the education of their handicapped child.”), cert.
denied, 488 U.S. 925 (1988). Meanwhile, as indicated, the teachers
and administrators testified that they worked collaboratively with
each other in implementing Rob’s IEP.
When Rob’s parents withdrew
Rob from KISD, enrolled him in the private Pine Ridge School, and
requested reimbursement, a due process hearing was provided to them
before a TEA Hearing Officer, and now judicial review by this
Court.
4.
In Hovem, the Fifth Circuit held that in an appeal of a hearing
Officer’s decision, the district court must take a “holistic
perspective” and that the meaningful “educational benefit” for
which the IEP and the IDEA aim is the “overall educational benefit,
not solely disability remediation.”
690 F.3d at 397-98.
Because the Court finds that in an appropriate educational
placement KISD developed and implemented proper, individualized
IEPs
for
Rob
based
on
his
evaluations,
test
results,
and
performance, found suitable by expert witnesses, and provided him
with a FAPE that met his unique needs and prepared him for further
education, and because the Woodses withdrew Rob and enrolled him in
Pine Ridge, a private school for children with disabilities,
-42-
without appropriate notice to KISD, the Court finds that the Woods
are
not
entitled
to
reimbursement
for
that
private
school’s
tuition.
For these reasons the Court AFFIRMS the Hearing Officer’s
decision and
ORDERS that KISD’s amended motion for summary judgment (#103)
is GRANTED and the Woodses’ amended motion for summary judgment
(#102) is DENIED.
A final judgment will issue by separate order.
SIGNED at Houston, Texas, this 30th day of September , 2015.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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