C. G. v. Waller Independent School Dist ( 2017 )


Menu:
  •      Case: 16-20439      Document: 00514047907         Page: 1    Date Filed: 06/26/2017
    REVISED June 26, 2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fif h Circuit
    No. 16-20439                                  FILED
    June 22, 2017
    Lyle W. Cayce
    C. G., by and through her next friends Keith and Linda G.,                          Clerk
    Plaintiff - Appellant
    v.
    WALLER INDEPENDENT SCHOOL DISTRICT,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:15-CV-123
    Before WIENER, DENNIS, and HAYNES, Circuit Judges.
    WIENER, Circuit Judge:*
    Plaintiff-Appellant C.G., by and through her parents, claims that
    Defendant-Appellee Waller Independent School District (“WISD”) failed to
    provide her with a Free and Appropriate Public Education (“FAPE”) under the
    Individuals with Disabilities Education Act (“IDEA”). C.G.’s parents seek (1)
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 16-20439        Document: 00514047907         Page: 2    Date Filed: 06/26/2017
    No. 16-20439
    reimbursement for the cost of placing her in a private school setting and (2)
    injunctive relief for discrimination under § 504 of the Rehabilitation Act. The
    district court granted WISD’s motion for summary judgment, holding that
    WISD provided C.G. with a FAPE and that she could not succeed on her § 504
    claim. We affirm.
    I.
    FACTS
    A.    Factual Background
    C.G. is a child afflicted with autism and pervasive developmental delays.
    Over the course of the 2011-12 and 2012-13 school years, WISD administered
    an Individualized Education Program (“IEP”) for C.G. based on her eligibility
    to receive special education services. Her IEP included instruction in the
    special education classroom, speech therapy, and occupational therapy, among
    other types of instruction, all based on recommendations and goals set forth by
    her parents and various professionals involved in her education.
    Dissatisfied with C.G.’s progress, her parents rejected WISD’s proposed
    IEP for the 2013-14 school year and proposed extended school year services for
    the 2013 summer. They enrolled C.G. in a private school, retained certified
    special education teachers and specialists, and assembled private speech
    therapy sessions. 1
    B.    Procedural Background
    C.G.’s parents sought reimbursement for the cost of placing her in the
    private education setting through a due process hearing before the Texas
    Education Agency (“TEA”). The TEA reviewed evidence, heard live testimony,
    and considered the parties briefs, then held that WISD had provided C.G. a
    1   C.G.’s parents claim that she has shown progress in this new setting.
    2
    Case: 16-20439      Document: 00514047907        Page: 3    Date Filed: 06/26/2017
    No. 16-20439
    FAPE because her IEPs were appropriate and the least restrictive
    environment for her educational benefit.
    The parents appealed the TEA’s decision to the district court and added
    a claim of discrimination under § 504 of the Rehabilitation Act. They moved
    for judgment on the administrative record, seeking reimbursement for C.G.’s
    private placement and injunctive relief under § 504 for discrimination. WISD
    moved for summary judgment on all claims. The district court granted WISD’s
    motion for summary judgment and denied the parents’ motion for judgment on
    the administrative record.
    II.
    ANALYSIS
    A.        The Appropriateness of C.G.’s IEP
    1. Standard of Review
    We review the appropriateness of a school district’s IEP de novo. 2 We
    review the district court’s findings of fact for clear error. 3 The district court
    need only have based its decision on the preponderance of the evidence. 4 There
    is a presumption in favor of the educational placement established by a
    student’s IEP, and the party attacking its terms has the burden of showing
    why the educational setting established by the IEP was not appropriate. 5
    2. Applicable Law
    The IDEA’s purpose is to ensure that children with disabilities have
    access to “free appropriate public education that emphasizes special education
    2Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 
    118 F.3d 245
    , 252 (1997).
    3 
    Id. This includes
    finding of facts such as that “a disabled student obtained
    educational benefits under an IEP.”
    4 20 U.S.C. § 1415(i)(2)(C).
    5 Christopher M. v. Corpus Christi Indep. Sch. Dist., 
    933 F.2d 1285
    , 1291 (5th Cir.
    1991).
    3
    Case: 16-20439       Document: 00514047907          Page: 4     Date Filed: 06/26/2017
    No. 16-20439
    and related services designed to meet their unique needs and prepare them for
    further education, employment, and independent living.” 6 The IDEA requires
    a school district receiving federal funds to implement policies and procedures
    for students with disabilities that ensure each child with a disability receives
    a FAPE. 7 To achieve that goal, the parents and the school district collaborate
    to develop an IEP that is “reasonably calculated to enable a child to make
    progress appropriate in light of the child’s circumstances.” 8 The educational
    benefits sought when developing an IEP “cannot be a mere modicum or de
    minimis; rather, an IEP must be likely to produce progress, not regression, or
    trivial educational advancement.” 9
    If the parents of a child with a disability remove her from the special
    education program of a public school and enroll her in a private school without
    the public school’s consent, the court may require the public school to
    reimburse the parents if the court determines that the public school did not
    provide a FAPE. 10 To receive reimbursement, the parents must show: “(1) an
    IEP calling for placement in public school was inappropriate under IDEA, and
    (2) the private school placement by the parents was proper under the Act.” 11
    To show that the IEP was not appropriate, the parents must demonstrate that
    (1) the school district failed to comply with the procedural requirements of the
    6 20 U.S.C. § 1400(d)(1)(A).
    7 20 U.S.C. §§ 1412(a)(1), 1415(a).
    8 Endrew F. v. Douglas Cty. Sch. Dist RE-1, 
    137 S. Ct. 988
    , 999 (2017); R.H. v. Plano
    Indep. Sch. Dist., 
    607 F.3d 1003
    , 1008 (5th Cir. 2010).
    9 Richardson Indep. Sch. Dist. v. Michael Z., 
    580 F.3d 286
    , 292 (5th Cir. 2009) (quoting
    Michael 
    F., 118 F.3d at 249
    ).
    10 20 U.S.C. § 1412(a)(10)(C)(ii).
    11 Michael 
    F., 118 F.3d at 248
    (citing Sch. Comm. of Town of Burlington, Mass. v. Dep’t
    of Educ. of Mass., 
    471 U.S. 359
    , 370 (1985)).
    4
    Case: 16-20439        Document: 00514047907        Page: 5    Date Filed: 06/26/2017
    No. 16-20439
    IDEA and (2) the IEP was not “reasonably calculated to enable [the disabled
    child] to receive educational benefits.” 12
    The Supreme Court has set forth four factors for determining if an IEP
    is reasonably calculated: “(1) the program is individualized on the basis of
    student’s assessment and performance; (2) the program is administered in the
    least restrictive environment; (3) the services are provided in a coordinated
    and collaborative manner by the key ‘stakeholders’; and (4) positive academic
    and non-academic benefits are demonstrated.” 13 “[T]hese factors are . . .
    intended to guide a district court in the fact-intensive inquiry of evaluating
    whether an IEP provided an educational benefit,” and no factor is afforded
    more or less weight than the others. 14
    3. Analysis
    Underlying this dispute is the question whether the district court
    articulated a standard that is in line with the standard articulated by the
    Supreme Court in the recent decision in Endrew F. v. Douglas County School
    District. 15 There the Court rejected the Tenth Circuit’s standard that an IEP
    was “adequate as long as it is calculated to confer an educational benefit that
    is merely . . . more than de minimis.” 16 The Court held that an IEP “must be
    appropriately ambitious in light of [the child’s] circumstances” which is
    “markedly more demanding than the ‘merely more than de minimis’ test
    applied by the Tenth Circuit.” 17
    12   Michael 
    Z., 580 F.3d at 293
    (citing Bd. of Educ. v. Rowley, 
    458 U.S. 176
    , 206-07
    (1982)).
    13 Michael 
    F., 118 F.3d at 253
    .
    14 
    Id. at 294.
           15 
    137 S. Ct. 988
    (2017).
    16 
    Id. at 997.
           17 
    Id. at 992,
    1000.
    5
    Case: 16-20439       Document: 00514047907         Page: 6    Date Filed: 06/26/2017
    No. 16-20439
    Here, the district court explicitly stated that “[t]he educational benefit .
    . . ‘cannot be a mere modicum or de minimis; rather, an IEP must be likely to
    produce progress, not regression or trivial educational advancement.”’ The
    court focused on the four factors from Michael F. listed above to evaluate C.G.’s
    IEP which, it stated, “guide a district court in the fact-intensive inquiry of
    evaluating whether an IEP provided an educational benefit.” The court
    extensively evaluated C.G.’s IEP then held that all four factors weighed in
    favor of concluding that her IEP was reasonable based on her specific needs
    and progress. 18 Although the district court did not articulate the standard set
    forth in Endrew F. verbatim, its analysis of C.G.’s IEP is fully consistent with
    that standard and leaves no doubt that the court was convinced that C.G.’s IEP
    was “appropriately ambitious in light of [her] circumstances.” 19
    C.G.’s parents and WISD set forth different versions of the facts, but the
    district court did not clearly err in concluding that the evidence supports
    WISD’s contention that C.G.’s IEP was appropriate. The record is replete with
    evaluations, observations, and information regarding C.G., her needs, and her
    performance level. WISD worked with C.G.’s teachers, a psychologist, an
    educational diagnostician, her private speech provider, her parents, and others
    to align goals and strategies. There is also evidence that C.G. was making
    progress, including a statement by her father in an email to WISD on April 22,
    2013, referencing “the excellent progress [C.G.] has made since January.”
    When C.G. mastered goals during the 2012-13 school year, additional goals
    18 The court’s reasoning is especially persuasive considering that the burden is on
    C.G.’s parents to show that C.G.’s IEP was inappropriate. See Schaffer v. Weast, 
    546 U.S. 49
    ,
    57-58 (2005); Christopher 
    M., 933 F.2d at 1291
    .
    19 
    See 137 S. Ct. at 992
    .
    6
    Case: 16-20439      Document: 00514047907         Page: 7    Date Filed: 06/26/2017
    No. 16-20439
    and benchmarks were added. WISD adjusted its strategies multiple times,
    including altering C.G.’s school day in response to her parents’ many concerns.
    The burden of proof to overcome the legal presumption that the
    education program developed by the child’s school is appropriate rests on the
    parents. 20 WISD could have taken different, and arguably better, approaches
    to C.G.’s IEP, but the role of the court is not to “second guess” the decision of
    the school district or to substitute its plan for the education of the student. 21
    It is clear that WISD provided C.G. with an IEP that was reasonably calculated
    to enable her to make progress in light of her individual circumstances.
    B. § 504 Discrimination
    Under § 504 of the Rehabilitation Act of 1973, “[n]o otherwise qualified
    individual with a disability in the United States . . . shall, solely by reason of
    her or his disability, be excluded from the participation in, be denied the
    benefits of, or be subjected to discrimination under any program or activity
    receiving Federal financial assistance . . . .” 22 C.G.’s parents claim that by
    placing every disabled student, including C.G., into the “highly restrictive”
    zoned classroom, WISD discriminated against C.G.
    The district court ruled that C.G.’s parents “cannot sustain their § 504
    claim because the School District ‘implement[ed] . . . an Individual Education
    Program developed in accordance with [IDEA].’” 23 The parents responded that
    their § 504 claim is independent of the IDEA claim and cannot be dismissed
    merely because the IDEA claim fails.
    20 
    Schaffer, 546 U.S. at 57-58
    ; Christopher 
    M., 933 F.2d at 1291
    .
    21 Flour Bluff Indep. Sch. Dist. v. Katherine M., 
    91 F.3d 689
    , 693 (5th Cir. 1996).
    22 29 U.S.C § 794(a).
    23 Estate of Lance v. Lewisville Indep. Sch. Dist., 
    743 F.3d 982
    , 994 (5th Cir. 2014)
    (alterations in original).
    7
    Case: 16-20439       Document: 00514047907          Page: 8     Date Filed: 06/26/2017
    No. 16-20439
    To determine if a § 504 claim is independent of an IDEA claim and may
    thus be sustained on its own, the court asks (1) “could the plaintiff have
    brought essentially the same claim if the alleged conduct had occurred at a
    public facility that was not a school – say, a public theater or library?” and (2)
    “could an adult at the school – say an employee or visitor – have pressed
    essentially the same grievance?” 24
    C.G.’s parents allege that their § 504 claim (1) could have been brought
    in a public facility and (2) could have been bought by an adult. We disagree.
    The parents’ § 504 claim incorporates an identical factual background
    expressed in the same language as their IDEA claim. 25 In fact, their insistence
    that the zoned classroom produced a “highly restrictive” classroom setting,
    parrots the language of the IDEA’s requirement that students be educated in
    the least restrictive environment possible. The district court did not err in
    concluding that the § 504 claim should be dismissed because it was not
    independent of C.G.’s IDEA claim.
    III.
    CONCLUSION
    We AFFIRM the district court’s judgment.
    24 Fry v. Napoleon Cmty. Schs., 
    137 S. Ct. 743
    , 756 (2017) (emphasis in original).
    25See e.g. Ellenberg v. New Mexico Military Inst., 
    478 F.3d 1262
    , 1267 (10th Cir. 2007);
    M.P. v. Indep. Sch. Dist. No. 721, 
    439 F.3d 865
    , 868 (8th Cir. 2006).
    8