Reyes v. Manor Independent School District

Filing 42

ORDER GRANTING 30 Motion for Judgment on the Pleadings; DENYING 31 Motion for Summary Judgment; GRANTING 32 Motion for Extension of Time to File Dispositive Motions. Signed by Judge Sam Sparks. (ml)

a

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

MONICA REYES, AS NEXT FRIEND
OF E.M.,
Plaintiff,

2016

FEB -2

r°

M

t4:

21+

CAUSE NO.:
A-14-CA-00469-SS

-vs-

MANOR INDEPENDENT SCHOOL
DISTRICT,
Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the above-styled cause, and

specifically Defendant Manor Independent School District's Motion for Judgment on the
Administrative Record [#30], Plaintiff E.M.'s Response [#35] thereto, Defendant's Reply [#37]
in support, and Plaintiffs Sur-Reply [#38] thereto, as well as Plaintiffs Motion for Summary

Judgment [#3 1] and Defendant's Response [#3 6]

thereto.2

Having considered the documents, the

case as a whole, and the governing law, the Court now enters the follow opinion and orders.

Background
I.

Facts
Plaintiff E.M., represented by his mother and guardian Monica Reyes, was a former

student at Manor Independent School District. Plaintiff filed this claim under the Individuals

with Disabilities Education Improvement Act (IDEA), 20 U.S.C.

§

1400

et seq.,

alleging the

At the time this lawsuit was filed, Plaintiff was an adult student who had been declared legally
incompetent. His parent and guardian, Monica Reyes, initiated this lawsuit on Plaintiff's behalf Although Plaintiff's
counsel could not be bothered to redact Plaintiff's name from the pleadings, to ensure Plaintiff's privacy, the Court
does so now. Entered simultaneously with this redacted order is a sealed order listing E.M. 's full name.

Plaintiff also filed an Opposed Motion for Extension of Time to File Dispositive Motions [#32], which the
Court hereby GRANTS.
2

/

District denied him a free appropriate public education

(FAPE).3

At the time of filing this

complaint, Plaintiff has already transferred to another school district.

Plaintiff is eligible to receive special education under the IDEA as a student with severe
intellectual disabilities and autism. Since moving from Mexico with his family in 2009, Plaintiff
has attended schools in four different districts in the Austin area. Plaintiff began his tenure at the

Districthis third school districtin August of 2010. On August 18, 2010, Plaintiff turned

18.

Plaintiff has a history of maladaptive and self-injurious behaviors. For example, the
second school district reported Plaintiff would repeatedly hit his head and bite his hand so
severely he caused tissue damage. He would charge at adults and throw objects at them,
sometimes pursuing an individual for over an hour when agitated. Both the first and second
school districts

conducted psychiatric

evaluations of Plaintiff, which concluded his

developmental age was between 27-32 months. Based on these assessments, the psychiatrist

concluded Plaintiff was not capable of academic work and should instead focus on learning life
skills and self-management. He also discouraged physical intervention to avoid escalating

Plaintiffs aggressive behaviors and recommended the schools designate a separate space for
Plaintiff to calm down. In light of these recommendations and in an attempt to manage Plaintiff's
physical aggression, the second school district placed Plaintiff in a separate classroom with two
adults and no access to his peers.
Soon after Plaintiff transferred to the District, the Admission, Review, and Dismissal

Committee (ARDC) convened to review the previous school districts' individualized education
program (IEP) and their evaluations of Plaintiffs progress. The ARDC reconvened on
September 28, 2010 to develop an JEP for Plaintiff specific to his education in the District. The

Citations to the five-volume administrative record will be as follows: AR [Volume Number] at [pincite].

2

ARDC adopted the second school district's Behavior Intervention Plan (BIP), which addressed

Plaintiff's self-injurious behaviors and physical aggression towards others, tendency to leave
assigned areas, and non-compliance with directions. The IEP as defined by the ARDC sought to

maintain compliant behaviors, increase communication through use of symbols, gestures,
pictures, or direction, classifi and sort objects, improve self-help skills such as use of appropriate

hygiene methods, and extinguish self-injurious behaviors.

See, e.g.,

AR II at 1403-13.

In December of 2010, the ARDC met again to discuss Plaintiff's aggressive behaviors
and his parent's concerns. By that time, the District was frequently contacting Plaintiff's parent
to pick him up from school. According to Plaintiff's teacher, he was physically aggressive

toward staff members, roamed during class, failed to participate, displayed a short attention span,
and would hit, pinch, grab, and twist the arms of adults without provocation. Plaintiff had also

acted aggressively towards another student, and on at least one occasion injured staff members

who thereafter had to seek emergency medical attention.

Around January of 2011, the District began consulting with a Board Certified Behavior
Analyst (BCBA) from Spectrum Consulting, who completed a functional behavior assessment
(FBA) of Plaintiff The BCBA worked with staff members to implement alternative strategies to

deescalate Plaintiff's behaviors, recommending that the staff implement the STAR curriculum,

improve communication through the use of a picture exchange system, create clearly define
boundaries and spaces, and increase life skills instruction and vocational skills training. She
recommended restraints be limited to circumstances where it was necessary to protect others and
prevent the destruction of property.
Throughout the 2010-11 and 2011-12 school years, Plaintiff continued to exhibit self-

injurious behaviors and engage in significant aggression towards the staff and other students. On

3

at least one occasion Plaintiff engaged in as many as twenty acts of aggression throughout the
day. During this same time period, the staff reported implementing as many as seventeen hug

restraints and six ground restraints in one day. According to the staff, Plaintiffs behavior was
unpredictable.
In January

of 2012, the student separated his shoulder, apparently from pulling on a

cabinet door. For the next two weeks, the student remained at home to promote the healing of his
arm. He returned to school on February 29, 2012. Upon his return, the BCBA and two aides were

to remain with Plaintiff at all times. The District also decided to separate Plaintiff from other

students. While staff presence increased in Plaintiffs classroom from February 15, 2012 to May
30, 2012, there is conflicting evidence in the record as to whether Plaintiffs teacher was

consistently present. See,

e.g.,

AR V at 6611, 6753, 6792.

In the spring of 2012, the BCBA and the District's aides recorded Plaintiffs behaviors

every 5-15 minutes. They also recorded Plaintiffs progress in accomplishing tasks related to his
IEP goals. The Special Education Hearing Officer (SEHO) found Plaintiff made some progress

during this time period, but the progress was inconsistent and Plaintiff still required "hand over

hand prompting for many tasks." AR I at 6.
The ARDC met twice in the spring of 2012: once on April 25, 2012 and again on May
30, 2012. The SEHO concluded Plaintiffs parent fully participated in both ARDC meetings with

the help of an interpreter and advocate, and the "overall tone of both ARD Committee meetings
[was] collaborative." AR I at 7. Following the meeting in May, however, Plaintiffs parent

notified the District that Plaintiff would be transferring to a neighboring district, where he would
attend a specialized school for severely impaired students. According to the SEHO, Plaintiffs

ri

teacher at the fourth school district reported the frequency of Plaintiff's aggressive behaviors
remained the same but the intensity diminished. Id.

II.

Procedural History
On February 14, 2013, Plaintiff requested a due process hearing pursuant to 20

§

U.s.c.

1415(b)(6). Plaintiff alleged a myriad of violations of the IDEA, including failing to keep

Plaintiff safe from injuries, physically abusing Plaintiff, excessively restraining Plaintiff, and
failing to provide appropriate educational services to meet Plaintiff's individualized needs.

See

AR I at 2-3.

Plaintiff's administrative complaint was originally assigned to SEHO Gwendolyn Webb.
Webb determined the applicable statute of limitations period ran from February 15, 2012 to May
30, 2012, the date Plaintiff left the District. The case was later reassigned to SEHO Sharon

Ramage, who did not reconsider Webb's prior rulings. An administrative hearing was held on

October 23-25, 2013. On February 19, 2014, the SEHO issued her decision to the parties. She

ultimately concluded the District had not denied Plaintiff a FAPE during the applicable
limitations period.
On May 20, 2014, Plaintiff filed the instant complaint, alleging five procedural and
substantive causes of action:
(1) The hearing officer erred in failing to toll the one-year statute of limitations
pursuant to 20 U.S.C. § 1415(f)(3)(D) and TEx. Civ. PRAc, & REM. CODE
§ 16.001(b);
(2) The hearing officer erred in finding the District's failure to notify Plaintiff of the

transfer of parental IDEA rights was harmless error;
(3) The hearing officer made critical errors in her findings of fact;

(4) The hearing officer erred in concluding compensatory relief was not available to
Plaintiff; and

504 of the Rehabilitation Act by intentionally
discriminating against Plaintiff.

(5) The District violated

§

The District filed a motion for judgment on the administrative record, while Plaintiff

moved for summary judgment on all of his claims except for those arising under

§

504 of the

Rehabilitation Act. The Court now turns to the substance of these motions.

Analysis
I.

Legal Standard

A.

The IDEA
Because Texas receives federal education funding, all school districts within the state

must comply with the IDEA. See Cypress-Fairbanks Indep. Sch. Dist.

v.

Michael F., 118 F.3d

245, 247 (5th Cir. 1997). Congress enacted the IDEA to ensure children with disabilities receive
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). To achieve this goal, the IDEA requires states to

educate children with disabilities "to the maximum extent appropriate

.

. .

with children who are

not disabled," and to do so "in the least restrictive environment consistent with [the child's]

needs." Teague Indep. Sch. Dist.

v.

Todd L., 999 F.2d 127, 128 (5th Cir.1993). A school district

need not provide the best possible FAPE, "nor one that will maximize the child's educational

potential." Cypress-Fairbanks, 118 F.3d at 247. Instead, "[t]he FAPE must be tailored to each
disabled child's needs through an 'individualized education program,' which is a written

statement prepared [by a committee composed of] a 'qualified' and 'knowledgeable' school
district representative, a teacher, the child's parents or guardians, and, when appropriate, the

child himself." El Paso Indep. Sch. Dist.

v.

Richard R., 567 F, Supp. 2d 918, 925 (W.D. Tex.

2008) (citing 20 U.S.C.

§

1414(d)(1)(B)). In Texas, the committee responsible for preparing a

student's IEP is the Admissions, Review, and Dismissal committee (ARDc).
Under the IDEA, any party aggrieved by the SEHO's findings and decision may bring
suit in district court. 20 U.S.C.

§

1415(i)(2)(A). Neither party has asked the court to review

evidence in addition to the administrative record. When no new evidence is presented to the
district court in an IDEA suit, "the motion for summary judgment is simply the procedural

vehicle for asking the Court to decide the case on the basis of the administrative record." Austin
Indep. Sch. Dist.
Unified Sch. Dist.

v.
v.

Robert M., 168 F. Supp. 2d 635, 638 (W.D. Tex. 2001); see Capistrano
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 detennination, not a summary judgment.").

"Under the IDEA, a federal district court's review of a state hearing officer's decision is

virtually de novo.

.

. .

The hearing officer's findings should be accorded due weight, but the

district court must arrive at an independent conclusion based on a preponderance of the

evidence." Adam J. ex rel. Robert J.

v.

Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir.

2003). Thus, even though it is termed summary judgment, the existence of a disputed material

fact will not defeat a summary judgment motion. See 20 U.S.C.

§

1415(i)(2)(C)(iii).

The IDEA creates a presumption in favor of the school district's IEP. White ex rel. White
v.

Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir. 2003). Accordingly, at the district

court level, as at the administrative level, the party challenging the IEP bears the burden of
showing the IEP was inappropriate under the IDEA. Richardson Indep. Sch. Dist.
580 F.3d 286, 292 n.4 (5th Cir. 2009); Schaffer ex rd. Schaffer

7

v.

v.

Michael Z.,

Weast, 546 U.S. 49, 57-58

(2005) ("[T]he burden of persuasion [in an IDEA case] lies where it usually falls, upon the party

seeking relief.").

II.

Application
Before turning to the District's alleged procedural and substantive violations of the IDEA

and Plaintiffs claim under

§

504 of the Rehabilitation Act, the Court must first determine the

applicable statute of limitations.

Statute of Limitations

A.

The IDEA requires a parent to request an impartial due process hearing within two years

of the date when the parent knew or should have known of the actions forming the basis of the
complaint. 20 U.S.C.

§

1415(f)(3)(c). However,

§

1415(a) permits a shorter statute of limitations

if the state has an explicit time limitation for requesting a hearing. Id. In Texas, the statute of
limitation for requesting a due process hearing is one year.

See 19

TEx. ADMIN. CODE

§

89.1151(c). Both state and federal regulations provide for two exceptions to the limitations

period:
[I] f the parent was prevented from filing a due process complaint due to:

(1) specific misrepresentations by the public education agency that it had
resolved the problem forming the basis of the due process complaint; or
(2) the public education agency's withholding of information from the
parent that was required by 34 CFR § 300.1, et seq. to be provided to the

parent.
See 19

TEx. ADMIN. CODE

§

89.1151(c); 34 C.F.R.

§

300.511(f).

Plaintiff alleges the SEHO erred by failing to toll the statute of limitations pursuant to
TEx.

CIV. PRAC.

&

REM. CODE § 16.001(a). Section 16.001 tolls the statute

of limitation for

bringing a lawsuit if the individual is under a legal disability when the cause of action accrues,
either because the individual is younger than 18 years old or "of unsound mind."

See id.

It is an

established tenant of statutory construction that the legislature's enumeration of specific
exceptions to a statute of limitations excludes all others by implication. See 51 AM.

Limitation

of Actions §

JUR.

2d

46 (2015) ("Courts generally will not read an exception into a statute of

limitations which has not been embodied in the statute, or engraft on a statute of limitations

exceptions not contained in it."); see also West

v.

Moore, 116 S.W.3d 101, 105 (Tex.

Houston [14th Dist.] 2002, no pet.) (concluding the tolling provisions of

§

App.

16.001 were

inapplicable to the two-year statute of limitations established under the Medical Liability and
Insurance Improvement Act, because the Act expressly stated it applied "to all persons regardless

of minority or other legal disability"). In this case, the Texas legislature enumerated two
exceptions to the one-year statute of limitations it created for filing due process hearings, neither

of which are related to the exceptions set forth under

§

16.00 1 of the Texas Civil Practice and

Remedies Code for bringing a lawsuit. As a result, the Court finds

§

16.001 does not apply to

toll the one-year statute of limitations for requesting a due process hearing.

Accordingly, to prevail on Plaintiff's statue-of-limitations claim, Plaintiff must show
either that the District made specific misrepresentations or withheld information. In his
pleadings, Plaintiff simply argued the latter: that the statute of limitations should be tolled under
§ 141 5(f)(3)(D)(ii)

because the District withheld information from him. Specifically, Plaintiff

alleges the District failed to notify him that his IDEA rights were transferred to him when he

turned 18 years old. See Am. Compl. [#8] ¶ 20; see also 34 C.F.R.
State provides for the transfer of rights

the transfer of rights."); 19

of 18,

. . .

. . . ,

TEX. ADMIN.

§

300.520(a)(3) ("Whenever a

the agency must notify the child and the parents of

CODE

§

89.1049(a) ("After the student reaches the age

the school district shall provide any notice required under IDEA

student and the parent.").

. . .

to both the adult

The failure to properly notify and permit the participation of required ARDC members

may constitute a withholding of information, which in turn may prevent the plaintiff or his
parents from filing a timely request for a due process hearing. See, e.g., P., S.H. ex rel. A.H.

v.

Piano Indep. School Dist., 487 F. App'x 850, 863 (5th Cir. 2012). In Piano Indep. Sch. Dist., the
Fifth Circuit held Texas's one-year statute of limitations was inapplicable to the plaintiff's
claims, because the ARDC was "not duly constituted and was missing a statutorily-required

member[,]" namely the plaintiff's regular education teacher. Id. at 865. Had the regular
education teacher not been missing, the court concluded, the resulting deficiencies in the IEP
would have been made clear to the plaintiff's parents sooner. Id. at 863.

Unlike Piano, where the plaintiff's parents were uninformed about the resulting
deficiencies, it is undisputed that the District provided Plaintiff's parents with notice of the

transfer of IDEA rights. Moreover, from the beginning of Plaintiff's time in the District, the
District negotiated with Plaintiff's parent and permitted her to meaningfully participate in the
ARDC meetings. Plaintiff has not shown that his presence at the ARDC meetings would have

been appropriate, given his inability to meaningfully participate in the discussions. See infra
section II.B.i. Accordingly, the Court finds no information was withheld from the parent which
was required to be provided to the parent by 34 CFR

§

300.1 et seq., and therefore the exception

to the one-year statute of limitation set forth under 34 CFR
inapplicable.4

§

300.51 1(f)(3)(D)(ii) is

Accordingly, the applicable one-year limitations period begins on February 15,

Plaintiff further argues the statute of limitations should be tolled because once Plaintiff turned 18 years
old and his parents' rights under the IDEA were transferred to him, no one had standing to bring a suit on his behalf.
Plaintiff had not been declared legally incompetent, his parents had not yet obtained guardianship, and he could not
execute a valid power of attorney transferring his IDEA rights to his parents pursuant to 19 TEx. ADM1N. CODE
§ 89.1049(e). The narrow tolling exceptions set forth under § 89.1141(c) do not permit a court to toll the statute of
limitations for an adult student who is incompetent and without a guardian. However much sympathy the Court has
for a plaintiff in this position, it is diminished by the circumstances of the present case. Plaintiffs parentwho filed
the request for the due process hearing and fully participated in the administrative proceedingnow argues she was
10

2012, one year prior to the day Plaintiff requested a due process hearing on February 14, 2013.

Because Plaintiff moved to a fourth school district on May 30, 2012, this Court will only
consider events which occurred from February 15, 2012 to May 30, 2012. The ultimate issue,
then, is whether the District denied Plaintiff a FAPE from February 15, 2012 to May 30, 2012.

Denial of a FAPE

B.

A district court's review of the SEHO's decision is twofold: the court must (1) determine

whether the school district complied with the IDEA's procedural requirements, and (2) then
determine if the student's IEP is reasonably calculated to provide meaningful educational
benefits.

Rowley,

458 U.S. at 177. In this case, Plaintiff asserts the District denied him a FAPE

by violating both the procedural safeguards and substantive provisions of the IDEA.

Procedural Violations

i.

Plaintiff first alleges the SEHO erred in finding the District's alleged procedural
violations did not result in the denial of a FAPE. Although Plaintiff's pleadings are replete with

contradictory claims,5 the Court construes the complaint as asserting two procedural violations of
the IDEA which resulted in the denial of a FAPE: (1) the District's categorical exclusion of

Plaintiff from the ARDC meetings due to Plaintiff's "level of cognitive functioning," and (2) the
District's failure to notify Plaintiff that his rights under the IDEA transferred to him when he
reached the age of majority.6 AR II at 1281. Procedural violations support finding the denial of a

not authorized to file the request on Plaintiffs behalf in the first place. The Court is not inclined to give Plaintiffs
parent two bites of the apple simply because she is dissatisfied with the SEHO's decision.

For instance, Plaintiff claims the District never notified his parent that Plaintiffs IDEA rights were
transferred once he reached the age of 18, but simultaneously admits the District notified Plaintiffs mother of the
transfer of IDEA rights on May 5, 2011. Pl.'s Mot. Summ. J. [#31] at 12.
6

At the administrative hearing, Plaintiff also complained that (1) the District failed to provide Plaintiffs
parent with an interpreter during the AIRDC meetings, and (2) the District failed to provide Plaintiff copies of his
educational records in Spanish despite a purported agreement to do so. AR I at 9-10. The SEHO concluded these
procedural violations did not result in the denial of a FAPE. Id. This Court does not address these alleged procedural
11

FAPE only when the error impedes the student's right to a FAPE, significantly impairs the

parent's opportunity to participate in the decision-making process regarding the provision of a
FAPE, or deprives the student of an educational benefit. 34 C.F.R.

§

300.5 13(a)(2).

The District's exclusion of Plaintiff from the ARDC meetings does not constitute a
procedural violation of the IDEA.

See Piano Indep. Sch.

Dist.,

487 F. App'x at 865 (noting the

student's absence from the ARDC meeting, but concluding the composition of the ARDC was
procedurally defective simply because the student's regular education teacher was absent).
Section 1414(d)(1)(B) states the student should be included in the ARDC "whenever

appropriate." 20 U.S.C.

§

1414(d)(1)(B)(vii). As the SEHO noted, it is clear from the record that

Plaintiff "did not have the capacity to meaningfully participate in the ARD Committee
meetings." AR I at 10. "[I]f the child does not attend the IEP Team meeting, the public agency
must take other steps to ensure the child's preferences and interests are considered." 34 C.F.R.
§

300.321(b)( 2). The District did just that, by ensuring Plaintiffs parent was present and

actively participating in the ARDC meetings with the aid of an advocate and an interpreter.
Moreover, even assuming Plaintiff's exclusion from the meetings constituted a procedural

violation, Plaintiff has not shown how his presence at the ARDC meetings would have altered
the resulting IEP or how his absence impeded his right to a FAPE. Accordingly, the District did
not deny Plaintiff a FAPE by excluding him from the ARDC meetings.

The District's failure to provide Plaintiff with notice of the transfer of his IDEA rights
falls outside of the applicable statute of limitations. Nevertheless, even considering the merits of

this claim and assuming the failure to provide notice resulted in a procedural violation of the
violations because Plaintiff has not sought judicial review of the SEHO's decision on these claims. Plaintiff now
concedes an interpreter was provided for Plaintiff at the ARDC meetings, but argues the procedural safeguards of
the IDEA were nevertheless violated because Disabilities Rights Texasinstead of the Districthired the
interpreter. Pl.'s Resp. [#35] at 11. However, Plaintiffs argument elevates form over substance and fails to show
how this alleged violation deprived Plaintiff of an appropriate education.

12

IDEA, it did not result in the denial of a FAPE. Texas law provides for the transfer of parental

rights to the student when the student turns 18 years old and requires the school district to notify
in writing the adult student and parent of the transfer of parental rights.
CODE. § 89.1049(a). However, the IDEA

See 19 TEX. ADMIN.

expressly provides that parental rights do not transfer

to students who have been determined incompetent under state law when they reach the age of

majority.

See

20 U.S.C.

§

1415(m)(1); 34 C.F.R.

§

300.520(a). Even where a student has not

been deemed incompetent, if that child does not have the ability to provide informed consent
with respect to his educational program, there must be state-established procedures for
appointing the parent of the student to represent the student's educational interests when the
student reaches the age of majority.

See

20 U.S.C.

§

1415(m)(2); 34 C.F.R.

§

300.520(b).

Plaintiff admits there is no established procedure in Texas for determining a student's lesser
competency. See P1.'s Resp. [#35] at 2 n.1,
In this case, the rights accorded to Plaintiffs parents under the IDEA transferred to

Plaintiff when he turned 18 years old because Plaintiff had not yet been declared incompetent,
was incapable of executing a valid Power of Attorney, and there were no state-established

procedures for appointing his parent to represent his educational interests. Accordingly, the

District's failure to notify Plaintiff of the transfer of parental rights was in error. Nevertheless, it
is clear Plaintiff was otherwise incapable of providing informed consent with respect to his

educational interests, even if he had not yet been declared incompetent. Indeed, his parents

established his incompetency by obtaining guardianship on April 18, 2013. Am. Compl. [#8-2]
Ex. 2 (Guardianship). After the parental rights transferred but while Plaintiffs parents were

pursuing guardianship, Plaintiffs parent continued to represent Plaintiffs interests as his de
facto guardian at the ARDC meetings until Plaintiff left the District. The result would surely

13

have been the same had Plaintiff been handed a written notification of the transfer of his rights or

had guardianship been obtained: Plaintiff's

parentwith the aid of an advocate and translator

would have continued to represent Plaintiff's educational interests given Plaintiff's inability to
do so himself Given the active participation of Plaintiff's parent in crafting his IEP and the

absence of any demonstrable lost educational opportunity, Plaintiff has failed to establish that the

District's procedural violation produced substantive harm which ultimately deprived Plaintiff of

aFAPE.
ii.

Substantive Violations
Plaintiff next challenges the SEHO 's decision that the District's IEP was substantively

effective. Plaintiff alleges the SEHO made a myriad of erroneous factual findings, including the

SEHO's finding that a BCBA and two aides remained with the student at all times, the District
provided notice to the student of the transfer of his IDEA rights in May of 2011, the BCBA
continued to observe the student and assist in tracking data to analyze the student's behavior in
the beginning of the 2011-12 school year, Plaintiff's parent would not permit the District to

administer medication while at school, and the parent or her advocaterather than the District
decided to maintain the student at home for two weeks to avoid further injury to his shoulder.
Many of Plaintiff's allegations involve conduct which occurred outside the limitations period. As
for the alleged violations which occurred during the limitations period, the Court must determine

whether Plaintiff's IEP was "reasonably calculated to enable the child to receive educational

benefits," considering whether (1) the program was individualized on the basis of the student's
assessments and performance, (2) the program was administered in the least restrictive
environment, (3) the services were provided in a cooperative and collaborative manner, and (4)

positive academic and nonacademic benefits were demonstrated.

14

Michael

F.,

118

F.3d at 253;

see also Michael Z., 580 F.3d at 292 n.4 (concluding these factors should be weighed on a case-

by-case basis).
a. Individualized Program

The IDEA does not require a school district to correct a student's behavioral problems.
L.F.

v.

Hous. Indep. Sch. Dist., No. Civ. A H-08-2415, 2009 WL 3073926, at *18 (S.D. Tex.

Sept. 21, 2009). Instead, in developing an IEP for "a child whose behavior impedes the child's

learning," the school district must "consider the use of positive behavioral interventions and
supports, and other strategies, to address that behavior." 20 U.S.C.

§

1414(d)(3)(B)(i).

In this case, the record reveals the District took steps to address Plaintiff's maladaptive

behaviors and implement positive behavioral interventions to address them. In Plaintiffs first
year at the District, the District began consulting with behavioral specialists at Spectrum
Consulting. The BCBA continued to observe Plaintiff and assist staff members in collecting data
to analyze Plaintiffs behavior during the 2011-12 school year. The BCBA reported that after

Plaintiffs return from an in-patient treatment at the Austin State Hospital at the beginning of the
2011-12 school year, his behaviors became unpredictable and previously effective interventions
no longer worked. See, e.g., AR V at 6739. Because Plaintiffs behavior had become

unpredictable since the original BIP was developed, the ARDC modified the behavioral goals to
reflect Plaintiffs present performancefocusing first on decreasing Plaintiffs aggression and

then on achieving the IEP's goals. AR V at 6739, 6753. To increase staff presence and promote
positive behavioral interventions in the spring of 2012, the BCBA and two aides were to remain
with Plaintiff at all times. See AR V at 6758-60.

Plaintiff faults the District because "[n]one of [Plaintiffs] goals have been mastered
despite the fact that many had been implemented since 9/28/20 10." Pl.'s Mot. Summ. J. [#3 1] at

15

of an IEP. "Simply because another

17. However, no school district can guarantee the success

plan might have worked as well or even better does not mean that the student did not receive a

FAPE." D.B. ex rel. C.B.

v.

Hous. Indep. Sch. Dist., No. CIV.A. H-06-354, 2007 WL 2947443,

at *10 (S.D. Tex. Sept. 29, 2007). The record indicates the IEP was sufficiently individualized to

address Plaintiff's unique and challenging needs.

b. Least Restrictive Environment
The IDEA requires every student with a disability to be educated in the least restrictive

environment necessary to meet his needs. 20 U.S.C.

1421(a)(5)(B). A least restrictive

§

environment is defined as "not only freedom from restraint, but the freedom of the child to
associate with his or her family and able-bodied peers to the maximum extent possible." Teague
Indep. Sch. Dist.

v.

Todd L., 999 F.2d 127, 128 n.2 (5th Cir. 1993). Although there is a

presumption in favor of mainstreaming a child, this presumption may be overcome when a
regular classroom will not meet the disabled child's needs. Daniel R.R.

v.

State Bd. ofEduc., 874

F.2d 1036, 1044 (5th Cir. 1989) (recognizing that due to the nature and severity of some

children's disabilities, special education is necessary and "mainstreaming does not provide an
education designed to meet their unique needs"). Indeed,

§

300.114 further provides that "if the

nature or severity of [a child's] disability is such that education in regular classes with the use of

supplementary aids and services cannot be achieved satisfactorily," then the child may be

removed from the regular educational environment. 34 C.F.R.

§

300.1 14(a)(2)(ii).

Plaintiff claims he was not educated in the least restrictive environment possible because
he was educated in a classroom by himself, isolated from his peers, and the doors leading into
the classroom from both the hallway and another life skills classroom were locked. Determining

whether a student is educated in the least restrictive environment is necessarily a fact-intensive

16

inquiry.

See Daniel R.R.,

874 F.2d at 1044. In this case, previous psychiatric evaluations of

Plaintiff determined he was not capable of academic work at any level. Thus, Plaintiff would not
have received an academic benefit from a regular education, and any non-academic benefit he
received from interacting with his non-handicapped peers would have been marginal.

See

id.

at

1051 (concluding the student would not receive any academic benefit and only marginal non-

academic benefits from a mainstream education). Moreover, the record indicates that educating

Plaintiff in a separate classroom removed from similarly-situated peers was necessary because
his aggressive behaviors threatened others and impeded his own learning. Furthermore, the
BCBA testified the door was not locked every day, and when it was locked, it was simply to

prevent Plaintiff from trying to escape, which she testified occurred weekly. AR V at 6801-02.

Plaintiff also faults the District for engaging in excessive restraints.7 The BCBA testified
restraints.were only used to prevent injury or the destruction of valuable property. AR V at 6805.
Similarly, Plaintiffs teacher testified Plaintiff was never restrained as a form of discipline or in

any non-emergency situation. AR V at 6619-20. The need for restraints was highest at the
beginning of the 201 1-2012 school year, but diminished in the spring of 2012.

See

AR III at

2907-22. Without more evidence that the District excessively used restraints during the
limitations period, the Court cannot conclude Plaintiff was denied a FAPE.
c.

Collaborative Services

To establish the educational program was not provided in coordination with the key

"stakeholders," a plaintiff must "show more than a

de minimis

failure to implement all elements

of that IEP, and, instead, must demonstrate that the school board or other authorities failed to
implement substantial or significant provisions of the IEP." Bobby

R.,

200 F.3d at 349. The

' Many of the
examples of excessive physical restraints listed in Plaintiff's summary judgment motion
occurred in December of 2010, outside the applicable limitations period. See Pl.'s Mot. Summ. J. [#3 1] at 27, 30.

17

record reveals the key stakeholders provided Plaintiff services in a coordinated and collaborated
maimer: the District coordinated with an outside consulting agency to hire a BCBA to remain

with Plaintiff at all times from February of 2012 to May of 2012; the BCBA testified she

regularly consulted with an occupational therapist to better understand Plaintiff's "sensory
needs"; the BCBA provided Plaintiff's aides with training specifically tailored to Plaintiffs

unique behavioral challenges; staff members received training on proper data collection; and

Plaintiff's teacher was trained in addressing autism issues and conducting SAMA restraints when
necessary.
During the four-month limitations period, the committee met on April 25, 2012 and again
on May 30, 2012. The SEHO concluded Plaintiffs parentwith the help of an advocate and an

interpretermeaningfully participated in the ARDC meetings, and Plaintiff has not challenged
that finding in this Court.

See

AR I at 8-9. At each meeting, the ARDC continued to develop and

modify the IEP's goals in light of Plaintiffs persistent aggression and subsequently slow
progress. The record indicates Plaintiffs parent agreed to all or substantially all of the IEP

provisions suggested by the ARDC. Accordingly, the Court finds Plaintiffs JEP was provided in
coordination with the key stakeholders.
d. Positive Academic and Nonacademic Benefits

The gravamen of Plaintiffs final complaint is that he was denied educational benefits
because (1) his teacher was not directly involved in his education, (2) he was absent from school
for two weeks following a shoulder injury, and (3) he has either regressed or made no progress

during his time at the District.

IE

Plaintiff first claims the evidence in the record clearly indicates his teacher was not
directly involved in his education.8 The BCBA testified to the contrary, however, indicating

Plaintiff's teacher was present "several times a day." AR V at 6753, 6792. Even assuming
Plaintiff's teacher was not directly involved, it is undisputed that the BCBA and two aides
worked with Plaintiff to manage his aggression and achieve his IEP goals. Plaintiff's only
challenge to this finding is that a BCBA and two aides did not remain with Plaintiff at all times

prior to February 15, 2012.

See

Pl.'s

Mot. Summ. J. [#31] at 16. However, this accusation is

outside the limitations period, and therefore irrelevant to the Court's consideration of whether

Plaintiff was denied educational benefits.
Plaintiff next argues that during the two-week period when he was absent from school, he
did not receive an educational benefit. The Court agrees. Nevertheless, regardless of whether the

District initially recommended that Plaintiff remain at home after he injured his shoulder, as

Plaintiff suggests, it is clear from the record that all parties involved were concerned about the
possibility of further injury to Plaintiff's shoulder. Given Plaintiff's tendency to injure himself
and act aggressively towards others, the District's concern that it would be unable to ensure

Plaintiff's safety in a vulnerable state was justified.
Finally, Plaintiff claims he failed to make any measurable progress while attending the
District, and when "[c]ompared with the skills he had when he attended Whitehouse ISD,
[Plaintiff] has [either] regressed or made no progress." Pl.'s Mot. Summ. J. [#31] at 23.

Specifically, Plaintiff points to his inconsistent ability to indicate "yes" or "no" on an iPad, point
to objects, or communicate through pictures. Moreover, at his previous school, Plaintiff

purportedly was able to complete puzzles, communicate through picture cards, and use the
Plaintiff also accuses the District of failing to properly train his previous teacher, Mr. Robey. Plaintiff
admits, however, that Mr. Robey only taught during the 20 10-11 school year and did not return for the 20 11-12
school year. Pl.'s Mot. Summ. J. [#3 1] at 27.
8

19

restroom independently, none of which Plaintiff could independently accomplish while attending
Manor High School. Id. at 23-24.
The record indicates Plaintiffs aggressive and self-injurious behaviors became

unpredictable during the 2011-12 school year. Indeed, the BCBA testified that the District's

priority was to first reduce Plaintiffs aggressive behaviors so Plaintiff could focus on achieving
the IEP's goals. AR V at 6720. In an effort to recognize the precursors to Plaintiffs aggressive
behaviors, the staff monitored and recorded Plaintiffs behavior every 5-15 minutes. AR V at

6758-60. While the need for restraints did not diminish from February of 2012 to May of 2012,
the District nevertheless encouraged Plaintiff to achieve the IEP ' s goals. For example, during the

spring of 2012, the District introduced an iPad into Plaintiffs daily routine and attempted to
teach Plaintiff to say "yes" or "no" to reflect his desires; Plaintiff began to tolerate the sound of
an electronic razer near his face; and on occasion Plaintiff would fold towels of different sizes.

AR V at 6770-80. The testimony from Plaintiffs teacher, an aide, and the BCBA indicated that

although Plaintiffs progress was slow and at times inconsistent, it was progress nonetheless. AR
V at 6606-07, 6611-19, 663 8-39, 6646-48, 6764-65. At the hearing, the SEHO heard these

testimonies, and based on the witnesses' credibility, concluded Plaintiff began to make progress

during the spring of 2012. AR I at 16. Plaintiff, as the party challenging the District's
implementation of the IEP, must show more than a

of the IEP.

de minimis

failure to implement all elements

Bobby R., 200 F.3d at 349. He must demonstrate the District failed "to implement

substantial or significant provisions of the IEP." Id. Given the evidence in the record which

suggests Plaintiff made some progress during the limitations period despite his unpredictable,

aggressive behavior, the Court finds Plaintiff has failed to prove he was denied positive
academic and nonacademic benefits. The balance of the

20

Michael F.

factors thus indicates the

District's IEP was reasonably calculated to enable Plaintiff to receive educational benefits. In the
absence of a violation of Plaintiff's right to an appropriate education, Plaintiffs request for

injunctive relief in the form of compensatory education is denied.
C.

Rehabilitation Act
In the parties' cross-motions for summary judgment, only the District has moved for

summary judgment on Plaintiffs claim for relief under the Rehabilitation Act. Plaintiff alleges
the District violated

§

504 of the Rehabilitation Act by using excessive restraints, taking pictures

of Plaintiff disrobing, and making changes in the classroom that were followed by new
maladaptive behaviors. Am. Compl. [#8] at 21-23. Section 504 mandates that "[nb otherwise

qualified individual with a disability

.

.

.

shall, solely by reason of her or his disability, be

excluded from the participation, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial assistance." 20 U.S.C.

§

794(a). The

Fifth Circuit has explained that "while IDEA imposes an affirmative obligation on states to
assure disabled children a free appropriate public education," §504 of the Rehabilitation Act

"broadly prohibit[s] discrimination against disabled persons in federally assisted programs or
activities." D.A.

ex rel. Latasha A.

v.

Hous. Indep. Sch.

Dist.,

629 F.3d 450, 453 (5th Cir. 2010).

The IDEA does not "restrict or limit the rights, procedures, and remedies available under

the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of
1973, or other Federal laws protecting the rights of children with disabilities." 20 U.S.C.
§

1415(1). However, "before filing a civil action under such laws seeking relief that is also

available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted
to the same extent as would be required had the action been brought under this subchapter." Id.

In other words, while the IDEA permits parents and students to seek relief under other statutes,

21

such as the Rehabilitation Act, it requires complainants to first exhaust their administrative

remedies with respect to these claims.

Hous. Indep. Sch.

Dist.,

2009 WL 3073926, at *22

("Before bringing a claim for relief under the Rehabilitation Act based on allegations that
overlap with the IDEA, a plaintiff must exhaust administrative remedies with the state education
agency.")

Plaintiff's claim under

§

504 of the Rehabilitation Act is based on the same factual

allegations as the claims he asserted under the IDEA, namely that the District used excessive

restraints, took inappropriate photos of Plaintiff disrobing, and failed to manage Plaintiff's

maladaptive behaviors. Because Plaintiff's

§

504 claim is based on overlapping allegations,

Plaintiff was required to first exhaust his administrative remedies by alleging a violation of the
Rehabilitation Act before the SEHO. Plaintiff failed to do so, and as a result, the District's
motion for summary judgment on this claim must be

granted.9

Conclusion
While the Court commends Plaintiff's mother for her tenacious advocacy on her son's
behalf, the Court cannot ignore the simple reality that the State of Texas is unable to provide

every child with a perfect education. In this case, the District's educational plan may not have
been perfect, but it was sufficiently tailored to meet Plaintiff's unique and challenging needs.
Accordingly,
IT IS ORDERED that Defendant Manor Independent School District's Motion for

Judgment on the Administrative Record [#30] is GRANTED;
IT IS FURTHER ORDERED that Plaintiff E.M.'s Motion for Summary Judgment
[#31] is DENIED;

In the alternative, the Court finds Plaintiff's claim for relief under the Rehabilitation Act fails on the
merits.

22

IT IS FiNALLY ORDERED that Plaintiff E.M.'s Opposed Motion for Extension

of Time to File Dispositive Motions [#32] is GRANTED.
SIGNED this the

day of February 2016.

SAM SPARKS
UNITED STATES DISTRICT JUDGE

23