H v. Riesel Indep Sch Dist ( 2021 )

Case: 20-50003 Document: 00516102966 Page: 1 Date Filed: 11/22/2021
United States Court of Appeals United States Court of Appeals
Fifth Circuit
for the Fifth Circuit FILED
November 22, 2021
Lyle W. Cayce
No. 20-50003 Clerk
Leigh Ann H., as parent, guardian, and next friend of K.S., and K.S.
individually, an individual with a disability,
Plaintiff—Appellant,
versus
Riesel Independent School District,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:17-CV-210
Before Elrod, Duncan, and Wilson, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
This case arises out of the Individuals with Disabilities in Education
Act (IDEA) and its associated regulations. The idea behind IDEA is that
every student, regardless of disability, is entitled to a free and appropriate
public education. 1 Leigh Ann H. and her now-adult son K.S., a former high
school student with a specific learning disability, brought this case
1
See 20 U.S.C. § 1400(d)(1)(A).
Case: 20-50003 Document: 00516102966 Page: 2 Date Filed: 11/22/2021
No. 20-50003
contending that the Riesel Independent School District (RISD) neither
provided K.S. with a free appropriate public education nor complied with
procedural safeguards meant to ensure such. They appeal the district court’s
affirmance of two administrative decisions concluding that RISD did not
violate IDEA’s substantive and procedural requirements. 2 Having carefully
reviewed the voluminous record and the magistrate judge’s thorough report
that the district court adopted, we affirm.
I.
K.S. navigated elementary and high school in RISD with mixed
academic success and a checkered disciplinary record. Apart from third
grade, which he completed at Marlin Elementary School, K.S. attended
school within RISD for his entire education. This case emerged from K.S.’s
identification and accommodation as a student with disabilities during his
RISD high school career, but some details from his elementary school days
are necessary to understand the claims presented here on appeal.
2
Although the parties’ briefs, the record on appeal, our caselaw, and even IDEA
itself contain an alphabet soup of administrative acronyms, we will spell things out for the
sake of clarity. E.g., 20 U.S.C. § 1414(d)(1)(A)(i) (referring to an “individualized
education program” as an “IEP”); Appellants’ Br. (using no fewer than twenty-two unique
initialisms); Appellee’s Br. (similar). Given their frequency and intelligibility, we
nonetheless will continue to abbreviate IDEA and RISD.
For those who prefer acronymic efficiency, however, our holding is roughly as
follows: RISD did not violate IDEA with respect to K.S. because, as the SEHOs correctly
found at the DPHs: (1) the ARDC’s IEPs for K.S., which included PLAAFP statements,
TEKS goals for K.S.’s grade level, various accommodations, and a transition plan, were
appropriately individualized in light of K.S.’s SLD; and (2) no actionable violation resulted
from wrongly excluding K.S. from the Sept. MDR, which reviewed K.S.’s prior FIEs, FBA
consultations, his IIE, Ms. H.’s reports of K.S.’s ADHD (an OHI), TBI, and mood
disorders, and concluded that K.S’s SLD did not cause him to commit the assault for which
he was assigned to DAEP. And, in sum, the D. Ct. did not err in holding that K.S. received
a FAPE in the LRE in compliance with IDEA.
2
Case: 20-50003 Document: 00516102966 Page: 3 Date Filed: 11/22/2021
No. 20-50003
While attending third grade at Marlin, K.S. began to get into trouble.
His mother, Leigh Ann H., sought out a private psychologist, Dr. Finlay, to
evaluate K.S. Dr. Finlay reported that K.S. was in the “middle part of the
average range of intellectual functioning,” but that there were “possible
learning disabilities in reading and written expression.” Dr. Finlay further
concluded that K.S.’s “score patterns were not consistent with a child with
[attention deficit hyperactivity disorder] and, therefore, the test results
suggest[ed] that his problems in school [we]re more mood related and
probably associated with learning disabilities.” He recommended that K.S.
should be “considered for special education services for learning disability
and possibly emotional disturbance.” Dr. Finlay’s report, however, was not
provided to RISD until March of 2016, by which point K.S. was in eleventh
grade.
When K.S. returned to RISD in the fourth grade, he did not stand out
academically. His grades and standardized test scores were generally
middling, and he did not fail consistently in any one subject, let alone across
the board. Indeed, K.S. passed all of his middle-school classes with average
to above-average grades. He passed his State of Texas Assessment of
Academic Readiness exams in reading, math, writing, and science as a fourth
and fifth grader. And although he narrowly failed the state standardized
exams for sixth-grade reading, seventh-grade writing, and eighth-grade social
studies, K.S. subsequently passed both his seventh- and eighth-grade reading
tests—with his score on the latter nearly earning him “Advanced”
achievement status.
Come high school, K.S.’s mixed academic track record continued. In
ninth grade, K.S. failed Biology I and Algebra I but passed the standardized
state exams in both subjects. Inversely, he initially failed his English I and II
standardized exams by a few points (he later passed) while passing his
corresponding ninth- and tenth-grade high school courses. Besides tenth-
3
Case: 20-50003 Document: 00516102966 Page: 4 Date Filed: 11/22/2021
No. 20-50003
grade World Geography and a semester of Geometry, K.S. otherwise passed
his high school classes and other state standardized assessments.
K.S.’s behavior in high school was substandard. His freshman year,
K.S. received a suspension for refusing to do his work, swearing repeatedly
at a teacher, and punching a wall. This resulted in a thirty-day stay at RISD’s
disciplinary alternative education placement center. In the tenth grade, he
received twenty-six disciplinary referrals: ten for tardiness, six for failure to
follow directions, four for rudeness or profanity, three for failure to turn in
work, one for disrupting class, one for being in detention hall too many times,
and one for chewing tobacco on school property. The next year, however,
his disciplinary referrals dropped to just two (at least, as of March of his 2017
spring semester).
In March of 2016, at Ms. H.’s request, RISD referred K.S. for a full
individual and initial evaluation. Ms. H. noted on her referral form that she
was making the request due to K.S.’s “struggles with math” and “behavioral
outburst[s] when angry.” RISD finished its evaluation about eight weeks
later. The forty-page report summarizing RISD’s findings concluded that
K.S. met the special education criteria for specific learning disabilities in
math calculation and math problem solving, as well as in reading fluency—
an area of difficulty that Ms. H. had not mentioned. RISD’s diagnostician
did not consider it necessary to evaluate K.S. for an emotional disturbance.
Following K.S.’s initial evaluation, RISD held an Admission, Review,
and Dismissal Committee meeting to develop an individualized education
program for K.S. The resultant program provided goals to achieve grade-
level performance in both math and English and a number of
accommodations for K.S. in both courses, including changing the pace of
instruction and having teachers clarify complex concepts to suit his needs.
RISD assigned a case worker to consult with his teachers for at least fifteen
4
Case: 20-50003 Document: 00516102966 Page: 5 Date Filed: 11/22/2021
No. 20-50003
minutes each grading period, although actual consultations proved
considerably more extensive. The education program also contained a
transition plan that highlighted K.S.’s goals of attending college, pursuing a
degree in criminal justice, and ultimately, becoming a game warden.
Ms. H. was dissatisfied with RISD’s assessment and concerned that
her son was not receiving the accommodations required by his individualized
education program. She filed a request in December for a due process
hearing, and the school promptly responded by seeking a reevaluation of K.S.
In January of 2017, before the next evaluation, K.S. received an in-school
suspension for losing his temper, swearing, and slamming the door when a
teacher tried to take his cell phone away. Over the next couple of months,
RISD evaluated K.S. for a second time but did not conduct a behavioral
assessment because his behavior was considered “well within the average
range.” This evaluation resulted in a new individualized education program
which replicated the 2016 program but added an adjusted goal for K.S. to
achieve grade-level performance in mathematics.
A month later, in preparation for the due process hearing, Ms. H.
hired Dr. Lesli Doan to conduct a psychoeducational evaluation of K.S. Dr.
Doan concluded that, in addition to his current specific learning disabilities,
K.S. should be found eligible for special education in reading fluency and
comprehension, written expression, and potentially oral expression and
listening comprehension. Her report further suggested that K.S. met the
eligibility requirements for an “Other Health Impairment” due to K.S.’s
attention deficit hyperactivity disorder and behavioral issues at school.
Ms. H. also procured the opinion of a certain Dr. Bruce Bloom in
preparation for the impending hearing. Dr. Bloom based his report on an
interview with Ms. H. and K.S.’s academic records but did not meet with
K.S. prior to issuing the report. His report criticized K.S.’s individualized
5
Case: 20-50003 Document: 00516102966 Page: 6 Date Filed: 11/22/2021
No. 20-50003
education program for its allegedly inadequate accommodations, unrealistic
goals, and insufficiently supported, unrealistic long-term transition plan.
In May of 2017, the school called another committee meeting to
reassess K.S.’s program but ultimately recommended no changes at that
time. When Ms. H. voiced her disagreement, the committee reconvened in
June and agreed to add fifteen minutes of specialized instruction in reading
fluency, two days per week.
Just weeks after K.S.’s eighteenth birthday, an incident occurred on
school grounds for which he was charged with assault, a Class A
misdemeanor. K.S. was banned from school grounds, and RISD sought to
place him in the disciplinary education center for forty days once the school
year began. Eight days after the assault, Principal Brandon Cope contacted
K.S. and his mother to schedule a manifestation determination review. K.S.
did not attend the resultant August meeting because of the “no trespass”
order that remained in effect. The meeting’s purpose was to determine
whether K.S.’s behavior resulted from his learning disabilities. All attendees
besides Ms. H. concluded that the assault was not connected to his specific
learning disabilities in math and English and recommended that K.S. be sent
to the disciplinary education center.
Barely a week later, on September 1, a second manifestation
determination review took place. This time, K.S. attended. The attendees
revisited the previous meeting’s discussion and its conclusion that the assault
was “not a manifestation of [K.S.]’s learning disability and not a failure of
the district to implement [his individualized education program] since school
was not in session.” All committee members “were given the opportunity
to express concerns and offer input.” Ms. H. and K.S. disagreed.
At the same September meeting, Ms. H. and K.S. indicated that they
wanted K.S. to graduate early. They requested a major scheduling change:
6
Case: 20-50003 Document: 00516102966 Page: 7 Date Filed: 11/22/2021
No. 20-50003
K.S. would complete two whole senior-level courses—English IV and
Government/Economics—from the disciplinary education center in order to
fulfill his graduation requirements. In so doing, K.S. would receive the Texas
foundational diploma without an endorsement, which would allow him to
graduate early but would also render him unable to enroll directly in a public
Texas university. RISD approved this request, and K.S. began his final year
at the disciplinary center. There, he reportedly accomplished a herculean
feat: He completed all of his required coursework—two full courses’
worth—in a mere five days.
In their initial December 2016 request for a due process hearing, Ms.
H. and K.S. complained that RISD had failed (1) to properly identify and
evaluate K.S., (2) to provide K.S. a free and appropriate public education, (3)
to provide prior written notice, and (4) to educate K.S. in the least restrictive
environment. That hearing was held in May of 2017 before a special
education hearing officer who found in favor of RISD on all counts. In
August, Ms. H. and K.S. appealed the administrative decision in the United
States District Court for the Western District of Texas.
The following month, after RISD had conducted K.S.’s September
manifestation determination review, Ms. H. and her son filed a request for a
second due process hearing to challenge the substantive and procedural
adequacy of the manifestation determination review under IDEA. When the
second special education hearing officer again ruled in favor of RISD, Ms. H.
and K.S. returned to the district court. The district court consolidated the
two appeals, and appellants moved to include additional evidence, which the
district court denied. The magistrate judge issued a report recommending
judgment on the administrative record in favor of RISD, and the district court
adopted this recommendation in full. Appellants timely appealed to this
court. They seek compensatory education for K.S. on account of RISD’s
7
Case: 20-50003 Document: 00516102966 Page: 8 Date Filed: 11/22/2021
No. 20-50003
alleged IDEA violations, as well as reimbursement for Dr. Doan’s private
evaluation.
II.
IDEA litigation invariably involves an inextricable tangle of law and
fact. Our review, accordingly, is de novo. Krawietz ex rel. Parker v. Galveston
Indep. Sch. Dist., 900 F.3d 673, 676 (5th Cir. 2018). Unless we perceive clear
error in the district court’s underlying factual findings, we will not reverse.
R.P. ex rel. R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801, 808 (5th Cir.
2012); see also Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 395 (5th Cir.
2012). We encounter clear error only when “we are ‘left with a definite and
firm conviction that a mistake has been committed.’” R.P., 703 F.3d at 808
(quoting Hou. Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 583 (5th
Cir. 2009)).
III.
Leigh Ann H. and K.S. raise a raft of complaints concerning the
magistrate judge’s report and recommendation as adopted by the district
court. All are unavailing. 3 Their chief complaints center on the district
court’s holdings that:
3
Three objections can be dispatched forthwith. First, appellants allege that the
district court erroneously denied their motion to introduce post-hearing evidence.
Assuming arguendo that appellants preserved this issue and that their contention has merit,
appellants nevertheless fail to explain how any substantial right was affected by the
exclusion of this evidence. See E.R. ex rel. E.R. v. Spring Branch Indep. Sch. Dist., 909 F.3d
754, 763–64 (5th Cir. 2018).
Second, appellants complain that the district court (in adopting the magistrate
judge’s report) erroneously declined to consider the administrative record from one of their
appeals as to the other, even though the appeals were consolidated. But the district court
did not abuse its discretion in refusing to treat the consolidated appeals as if they were
consolidated for all purposes. Green v. Polunsky, 229 F.3d 486, 488 (5th Cir. 2000) (“We
review a district court’s decision regarding the consolidation of cases for abuse of
8
Case: 20-50003 Document: 00516102966 Page: 9 Date Filed: 11/22/2021
No. 20-50003
(1) RISD did not violate its obligation to identify and evaluate K.S.
as a student with a suspected disability;
(2) The individualized education programs and transition plan
created for K.S. complied with IDEA’s substantive
requirements; and
(3) RISD’s procedural foot-faults in failing to include K.S. for the
first manifestation determination review and failing to consider
certain relevant information were not actionable.
We discern no reversible error. As the magistrate judge (and district court)
properly found, appellants did not meet their burden of proof in
administrative proceedings below to establish that RISD committed
actionable IDEA violations. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49,
62 (2005) (“The burden of proof in an administrative hearing challenging a[]
[school district’s IDEA compliance] is properly placed upon the party
seeking relief.”); see also Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. ex
rel. Barry F., 118 F.3d 245, 253 (5th Cir. 1997) (“[A] party attacking the
appropriateness of an [individualized education program] . . . bears the
burden of showing why [it was] . . . inappropriate under the IDEA.”).
discretion.”). Indeed, it can hardly be an abuse of discretion to follow the traditional
default rule that “consolidation [does] not . . . completely merg[e] the constituent cases
into one, but instead . . . enabl[es] more efficient case management while preserving the
distinct identities of the cases.” Hall v. Hall, 138 S. Ct. 1118, 1125 (2018); see also, e.g., The
Martha, 53 U.S. 347, 353 (1851) (“[A]lthough the proceeding assumes the form of a joint
suit, it is in reality a mere joinder of distinct causes of action . . . .”).
Finally, appellants argue alternatively that if their appeals remained distinct
(despite consolidation for judicial efficiency), the district court should have issued two
separate orders. Even if there were merit to this contention, appellants fail to show any
resultant harm warranting reversal. See Cabral v. Brennan, 853 F.3d 763, 766 (5th Cir.
2017).
9
Case: 20-50003 Document: 00516102966 Page: 10 Date Filed: 11/22/2021
No. 20-50003
A.
IDEA obligates public school districts to “identify, locate, and
evaluate students with suspected disabilities ‘within a reasonable time after
the school district is on notice of facts or behavior likely to indicate a
disability.’” 4 Krawietz, 900 F.3d at 676 (quoting Dall. Indep. Sch. Dist. v.
Woody, 865 F.3d 303, 320 (5th Cir. 2017)); 20 U.S.C. § 1412(a)(3)(A). Once
a school district suspects that a student suffers a disability, it must evaluate
him for “all areas related to the suspected disability.” 34 C.F.R. §
300.304(c)(4). The record in this case does not disclose any clear indication
that the district court erred in concluding that RISD did, in fact, fulfill these
duties.
Appellants urge us to overrule the district court’s factual finding that
RISD had no reason to suspect K.S.’s disability before Ms. H. requested that
her son be evaluated in March of 2016. 5 We see no reason to do so. So far as
the record shows, Ms. H. neither “expressed concern in writing to
supervisory or administrative personnel” or “a teacher of [K.S.]” nor
formally “requested an evaluation of [K.S.]” before March 22, 2016. 20
U.S.C. § 1415(k)(5)(B)(i)–(ii). And, as the magistrate judge reasonably
determined, none of K.S.’s teachers or other RISD personnel “expressed
specific concerns about a pattern of behavior demonstrated by [K.S.], directly
to the director of special education . . . or to other supervisory personnel”
before Ms. H. requested K.S.’s initial assessment. Id. § 1415(k)(5)(B)(iii). 6
4
In disability-law vernacular, this legal obligation has been dubbed (somewhat
inartfully) the “child find” duty. See 20 U.S.C. § 1412(a)(3).
5
Cf. Spring Branch Indep. Sch. Dist. v. O.W. ex rel. Hannah W., 961 F.3d 781, 794
(5th Cir. 2020), cert. denied, 141 S. Ct. 1389 (2021) (“[D]etermining whether a child find
violation occurred is a fact-intensive inquiry . . . .”).
6
Appellants correctly observe that these § 1415(k)(5)(B) factors are listed within
the statutory context of procedural safeguards applicable to disciplinary action involving
10
Case: 20-50003 Document: 00516102966 Page: 11 Date Filed: 11/22/2021
No. 20-50003
Indeed, just eight weeks after Ms. H.’s request, RISD duly completed a full
individual evaluation of K.S. and produced a forty-page report detailing the
results.
Appellants have not argued—let alone proven—that the eight weeks
between Ms. H.’s request and RISD’s completion of K.S.’s timely evaluation
constituted unreasonable delay. 7 Instead, they argue that RISD was on notice
that K.S. might have been suffering from a disability “long before” Ms. H.’s
request. They do not contest the facts recited in the magistrate judge’s
report. Nevertheless, appellants assert that the weight of the evidence shows
that “K.S. displayed a combination of academic failures and behavioral
outbursts over the course of many years,” which ought to have prompted
RISD to investigate earlier than it did. We are not convinced.
It was only in 2016, during K.S.’s initial assessment, that RISD
received Dr. Finlay’s 2009 private evaluation of K.S. as a third grader at
students with disabilities of which school districts are “deemed to have knowledge.” The
legal trigger for the “child find” obligation under § 1412(a)(3) is indeed reasonable
suspicion. See Krawietz, 900 F.3d at 676. Nevertheless, the § 1415(k)(5)(B) criteria
provide sensible starting points for this analysis: If a parent or teacher raises concerns about
a student’s behavior that might suggest a disability such that a school district would be
“deemed to have knowledge that the child is a child with a disability” for purposes of
disciplinary proceedings under § 1415(k), a fortiori the school district would also have
reasonable suspicion that would trigger its child find duty under § 1412(a)(3).
The magistrate judge’s report reflects this same line of reasoning. The report first
addresses the § 1415(k) factors to determine whether RISD was on notice of K.S.’s
disability. Then, the report evaluated appellants’ arguments that RISD “had reason to
suspect that K.S. had a disability.” The district court committed no error in adopting this
analysis as its own.
7
Nor could they. Under Texas law, the district is to complete a full and individual
evaluation “not later than the 45th school day following the date on which the school district
receives written consent for the evaluation . . . .” 19 Tex. Admin. Code § 89.1011(c)(1)
(emphasis added); see also 34 C.F.R. § 300.301(c)(1) (authorizing states to establish a
timeframe for initial evaluation). RISD did so.
11
Case: 20-50003 Document: 00516102966 Page: 12 Date Filed: 11/22/2021
No. 20-50003
another school district. Appellants do not suggest otherwise. They submit,
though, that the Finlay report evidences “school-related events” that
“happened at RISD” of which RISD should have been aware.
The Finlay report is equivocal at best. For one thing, the report
confuses where K.S. was attending school at the time: In the same paragraph,
it states both that K.S. “is in danger of getting kicked out of school at Reisal
[sic] where he attends third grade” and that he “does not make friends well
in Marlin School where he is attending [sic].” Dr. Finlay also notes that K.S.
“has had more problems this year [i.e. third grade at Marlin] than previous
years in school” and that he “[r]eportedly . . . had a sudden change in his
behavior at school when he started school in Marlin.” Both statements
plainly belie appellants’ characterization of the report as bearing on “events
[that] happened at RISD.”
Setting aside the Finlay report, appellants allege that K.S.’s “behavior
and academics were a concern prior to the initial [evaluation].” Even if we
were to entertain appellants’ attempt on reply to breathe life into their initial
brief’s conclusory assertion as to concerns about K.S.’s academic track
record, 8 we still spot no error here.
K.S. was an average student. He did not founder perennially in any
given discipline—let alone across the board. After K.S.’s evaluation, RISD
concluded that he had specific learning disabilities in reading fluency, math
comprehension, and math problem solving. His educational record prior to
RISD’s 2016 evaluation displays no consistent pattern of failure that would
have put RISD on notice as to K.S.’s disability in reading or mathematics—
or, for that matter, a potential learning disability in any other subject.
8
Herrmann Holdings Ltd. v. Lucent Techs., Inc., 302 F.3d 552, 562 n.2 (5th Cir.
2002) (“We do not generally consider points presented for the first time in a reply brief.”).
12
Case: 20-50003 Document: 00516102966 Page: 13 Date Filed: 11/22/2021
No. 20-50003
For instance, although K.S. had failed a semester of his ninth-grade
algebra course, he succeeded in passing the Texas state standardized algebra
exam. With the exception of biology, a subject in which he was not found to
have a specific learning disability and in which he also passed the
standardized test, he had been passing all of his other classes. Indeed, K.S.’s
classwork earned him a passing grade in his ninth-grade RISD English
courses, even though he had to retake the state exam several times before
passing. His coursework and standardized testing in elementary school was
similarly mixed. And mixed academic success does not—in itself—trigger a
school district’s obligation to evaluate. 9
Nor does disciplinary history. Behavioral issues do not ipso facto
signify a disability. For this reason, other courts have held—and we agree—
that delinquency does not necessarily give rise to a reasonable suspicion of
emotional disturbance that would require evaluation under IDEA and its
regulatory framework. 10
9
Cf. Krawietz, 900 F.3d at 675–77 (upholding an administrative determination that
“[a student’s] academic decline, hospitalization, and incidents of theft . . . —taken
together—were sufficient to cause [a school district] to suspect that her several disabilities
created a need for special education services” (emphases added) (quoting the special
education hearing officer)). Notably, in Krawietz, the student had been “failing most of her
classes,” she “performed poorly on the PSAT,” and she had “completed fewer than half
of her expected credits” for a semester before the school district eventually evaluated her.
Id. at 675 (emphasis added). Here, by contrast, K.S.’s academic performance did not
indicate consistent, specific deficiencies in any particular discipline—let alone most of
them—that would have suggested to the reasonable observer a possible disability.
10
See, e.g., D.K. v. Abington Sch. Dist., 696 F.3d 233, 250–51 (3d Cir. 2012) (refusing
to hold that “misbehavior denoted a disability or disorder because hyperactivity, difficulty
following instructions, and tantrums are not atypical”); Springer v. Fairfax Cnty. Sch. Bd.,
134 F.3d 659, 664 (4th Cir. 1998) (“Courts and special education authorities have routinely
declined . . . to equate conduct disorders or social maladjustment with serious emotional
disturbance.” (citing authorities)); Tracy v. Beaufort Cnty. Bd. of Educ., 335 F. Supp. 2d 675,
689 (D.S.C. 2004) (“[T]he mere fact that [a student] engaged in delinquent behavior did
not put the School District on notice that he possibly was suffering from a serious emotional
13
Case: 20-50003 Document: 00516102966 Page: 14 Date Filed: 11/22/2021
No. 20-50003
Appellants point to K.S.’s disciplinary record as evidence that RISD
was aware that K.S. might have suffered from a “serious emotional
disturbance,” which IDEA regulations classify as a disability, and for which
RISD would have had to evaluate K.S. 34 C.F.R. § 300.8(a)(1); id.§ 300.304(c). K.S. did have twenty-six disciplinary referrals during his tenth-
grade year. But appellants never explain how any of these referrals—most of
which were merely for tardiness or failure to follow directions—relate to the
regulatory definition of an emotional disturbance. See id. § 300.8(c)(4)
(defining “[e]motional disturbance” by reference to a set of five
characteristics, any one or more of which must be exhibited “over a long
period of time and to a marked degree that adversely affects a child’s
educational performance”). Because appellants fail to show how K.S.’s
disciplinary record would give rise to a reasonable suspicion that K.S. had an
emotional disturbance, we cannot say that RISD violated a duty to identify
and evaluate K.S. as a student with a potential emotional disturbance.
In sum, the district court did not err in finding that appellants failed
to carry their burden of proof: They have not sufficiently shown that RISD
unreasonably tarried in evaluating K.S. for any reasonably suspected
disability.
B.
Under IDEA, a public school must furnish a disabled student with an
individualized education program that is “reasonably calculated to enable
[the student] to make progress appropriate in light of the [student]’s
circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1,
disturbance.”); cf. O.W., 961 F.3d at 794 (holding that a student’s egregious and persistent
“misconduct that resulted in . . . remov[al] from the classroom on a daily basis” triggered
the “child find” duty as to suspected emotional disturbance and contrasting such behavior
with delinquent behavior “typical of boys his age”).
14
Case: 20-50003 Document: 00516102966 Page: 15 Date Filed: 11/22/2021
No. 20-50003
137 S. Ct. 988, 999 (2017); 20 U.S.C. § 1401(9). 11 For a student over sixteen
like K.S., this program must also provide a transition plan and transition
services to help that student emerge from high school into the real world of
postgraduation life. 20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa)–(bb); 34 C.F.R.
§ 300.320(b)(1). Because the record amply supports the district court’s
findings concerning the adequacy of K.S.’s 2016 and 2017 individualized
education programs, we will not disturb its conclusion that RISD complied
with IDEA.
To determine whether a given program complies with IDEA, we
deploy a four-factor balancing test. See Michael F., 118 F.3d at 253. We
consider whether:
(1) The student’s program was individualized on the basis of the
student’s assessment and performance;
(2) The program was administered in the least restrictive
environment;
(3) The services were provided in a coordinated and collaborative
manner by the key stakeholders; and
(4) Academic and non-academic benefits are demonstrated.
Id. As we have said before, “the fourth factor is critical.” Renee J. ex rel. C.J.
v. Hou. Indep. Sch. Dist., 913 F.3d 523, 529 (5th Cir. 2019). And, as the
Supreme Court has emphasized, “[a]ny review of an [individualized
11
Among other things, an individualized education program must include “a
statement of the [student]’s present levels of academic achievement and functional
performance.” 20 U.S.C. § 1414(d)(1)(A)(i)(I). It must also describe “how the [student]’s
disability affects the [student]’s involvement and progress in the general education
curriculum.” Id. § 1414(d)(1)(A)(i)(I)(aa). And it must set out “measurable annual goals,
including academic and functional goals,” along with a “description of how the [student]’s
progress toward meeting” his goals will be measured. Id. § 1414(d)(1)(A)(i)(II), (III).
15
Case: 20-50003 Document: 00516102966 Page: 16 Date Filed: 11/22/2021
No. 20-50003
education program] must appreciate that the question is whether [it] is
reasonable, not whether the court regards it as ideal.” Endrew F., 137 S. Ct.
999.
Appellants’ sole quarrel with the district court’s analysis on appeal
concerns the first Michael F. factor. 12 Both of K.S.’s individualized education
12
In their reply brief, appellants raise the new argument that “K.S. did not make
meaningful progress” as IDEA requires. This appears to go to the fourth Michael F. factor.
Even if we were to entertain these new points raised first in reply, we would reach the same
conclusion. Cf. Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 270 (5th Cir. 1998)
(noting the general rule against considering points raised first on reply and citing cases but
nonetheless rejecting the belated argument on the merits as a matter of discretion).
Appellants incorrectly assert that “[t]he record is devoid of academic progress in
K.S.’s reading or mathematics abilities” or of any “behavioral progress.” To the contrary,
the record contains plenty of evidence that K.S. was making progress toward his goals: For
instance, his progress reports expressly state his progress vis-à-vis his program goals in
reading and math; his transcripts and RISD personnel testimony at the administrative
proceedings indicate steady progress through his grade-level curriculum, including his
passage of English and math classes; his PSAT score reflected college-readiness in reading,
writing, and math; his disciplinary referrals decreased; and his teachers reported that he
responded well to behavioral course corrections. In fact, at the May 2017 due process
hearing, one diagnostician stated, “[i]f the rest of our students were doing as well as [K.S.]
was, we would be ecstatic.” Another said: “We could only hope at this point in time that
most of our 11th graders [are] at the point that [K.S. is] at in knowing that he’s walking into
his senior year prepared to be a senior and ready to finish his credits that he needs for
graduation.”
Based on the record before us, we cannot say that the district court clearly erred in
finding that K.S.’s individualized education program yielded educational and academic
benefits. See Hou. Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000) (finding
no clear error in the district court’s factual determination that a learning-disabled student
received an educational benefit from his individualized education program based on grade
improvements and standardized testing); see also Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 207 n.28 (1982) (“When the handicapped
child is being educated in the regular classrooms of a public school system, the achievement
of passing marks and advancement from grade to grade will be one important factor in
determining educational benefit.”).
16
Case: 20-50003 Document: 00516102966 Page: 17 Date Filed: 11/22/2021
No. 20-50003
programs, they claim, were not sufficiently individualized to pass muster
under IDEA.
Chief among appellants’ complaints is that K.S.’s programs were
administered primarily via general education accommodations in the
ordinary classroom setting; therefore, they did not actually provide “special
education and related services” for which K.S. was eligible. See 20 U.S.C.
§ 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.306(c)(2). But this claim rests on
too narrow an understanding of “special education.” They suggest that an
individualized education plan must include “direct special education
services” or “specialized instruction” outside of the “general education
setting.” But IDEA’s regulations define “special education” more
capaciously. See 34 C.F.R. § 300.39(a)(1)(i) (“Special education means
specially designed instruction . . . to meet the unique needs of a child with a
disability, including . . . [i]nstruction conducted in the classroom[] . . . .”); see
also id. § 300.39(b)(3) (“Specially designed instruction means adapting, as
appropriate to the needs of [an IDEA-eligible student], the content,
methodology, or delivery of instruction (i) [t]o address the unique needs of
the child that result from the child’s disability; and (ii) [t]o ensure access of
the child to the general curriculum . . . .”). And though it might well be the
case that specialized, one-on-one education is the “ideal” for special
education, the law requires only the “reasonable.” Endrew F., 137 S. Ct. at
999.
Having reviewed K.S.’s individualized education programs in the
context of the complete record, we agree with the district court and the
magistrate judge that RISD did not run afoul of IDEA’s substantive
requirements. In requiring K.S.’s teachers to, inter alia, “change the pace of
instruction,” “[c]heck for understanding,” and “[r]emind[] [K.S.] to stay on
task,” K.S.’s programs clearly “adapt[ed] . . . the . . . methodology[] or
delivery of instruction [t]o address [K.S.’s] unique needs” as a student with
17
Case: 20-50003 Document: 00516102966 Page: 18 Date Filed: 11/22/2021
No. 20-50003
specific learning disabilities, just as IDEA’s regulations require and as
appellants appear to concede. 13 34 C.F.R. § 300.39. In sum, K.S.’s programs
were reasonably tailored to his needs even though they were furnished in the
general education setting. 14
Appellants also take issue with K.S.’s program goals and transition
plan and services, again complaining of a lack of individualization. His goals,
they point out, are just “recitations of Texas Essential Knowledge and Skills
(TEKS) standards for eleventh grade.” But that does not necessarily prove
lack of individualization; indeed, as the district court found, the goals were
precisely chosen to correspond to K.S.’s particular academic weaknesses.
Individualization does not mean that no two educational programs can be
alike. It simply means that a student’s program must account for his
individual needs. And performing at grade level may well be an appropriate
goal for a student like K.S. See E.R. ex rel. E.R. v. Spring Branch Indep. Sch.
Dist., 909 F.3d 754, 768 (5th Cir. 2018) (holding a set of TEKS goals, selected
for a particular student, to be appropriate and “designed for her unique
needs”). We perceive no clear error in the district court’s determination that
appellants did not meet their burden to show that K.S.’s goals were
inappropriate.
13
We have previously affirmed the substantive adequacy of an individualized
education plan with similar math and reading goals and only general accommodations. See
Z.C. v. Killeen Indep. Sch. Dist., No. W:14-CV-086, 2015 WL 11123347, at *3, *6 (W.D.
Tex. Feb. 17, 2015), aff’d sub nom. Phoung C. v. Killeen Indep. Sch. Dist., 619 F. App’x 398
(5th Cir. 2015).
14
The fact that K.S. also had a special education teacher designated to consult with
each of his general education teachers in order to monitor his progress, check his grades,
and ensure that his needs were addressed—a resource not available to general education
students—also indicates that his education program was suitably individualized.
18
Case: 20-50003 Document: 00516102966 Page: 19 Date Filed: 11/22/2021
No. 20-50003
Finally, K.S.’s education program included “appropriate measurable
postsecondary goals based upon age appropriate transition assessments” in
keeping with IDEA’s requirements for students over the age of sixteen. 20
U.S.C. § 1414(d)(1)(A)(VIII)(aa). In developing K.S.’s transition goals, the
committee relied on K.S.’s aspirations, the reports and recommendations of
his teachers, and vocational survey data. RISD gave K.S. a smorgasbord of
information about transition planning, including information from local
colleges, a college preparation checklist, and information from the
Department of Assistive and Rehabilitative Services. And K.S. was enrolled
in courses of study (a law enforcement training class and a course on wildlife,
fish, and ecosystems) geared towards his postsecondary and career ambitions
(to study criminal justice and become a game warden). Id.§ 1414(d)(1)(A)(VIII)(bb) (indicating that “transition services” include
“courses of study”). We cannot say that K.S.’s transition plan and services
were deficient under IDEA and its regulations. See id.; 34 C.F.R. § 300.43;
see also Renee J., 913 F.3d at 532–33.
C.
Before a school district may discipline a disabled student for more
than ten days, it must convene a meeting to determine whether the student’s
conduct that would warrant disciplinary action was a manifestation of the
student’s disability or a result of the district’s own failure to implement the
student’s individualized education program properly. See 20 U.S.C.
§ 1415(k)(1)(B), (E)(i)(I)–(II). This ‘manifestation determination review’
must include the student’s parent(s) and the committee that created the
student’s individualized education program, and it must “review all relevant
information in the student’s file, including the [student’s] [individualized
education program], any teacher observations, and any relevant information
provided by the parents.” Id. § 1415(k)(1)(E)(i); 30 C.F.R. § 300.530(e)(1).
When a Texas student turns eighteen, he inherits his parents’ rights to attend
19
Case: 20-50003 Document: 00516102966 Page: 20 Date Filed: 11/22/2021
No. 20-50003
and participate. 20 U.S.C. § 1415(m)(1)(A)–(D); Tex. Educ. Code
§ 29.017(a).
The parties here agree that RISD should have included K.S. in the
initial manifestation determination review that occurred in August of 2017,
and, having failed to contest the matter below, RISD does not dispute
appellants’ claim that the manifestation determination reviews failed to
consider all relevant information. The issue, then, is not whether procedural
violations occurred; rather, the question is whether the violations that
indisputably did occur are actionable. To be actionable, a violation of IDEA’s
procedural rules must either have:
I. “[I]mpeded the child’s right to a free appropriate public
education;
II. significantly impeded the parents’ [or adult student’s]
opportunity to participate in the decisionmaking process
regarding the provision of a free appropriate public education
to the parents’ child; or
III. caused a deprivation of educational benefits.”
20 U.S.C. § 1415(f)(3)(E)(ii)(I)–(III). Appellants’ briefing centers on the
second actionability criterion. 15
15
Again, appellants attempt to raise new arguments on reply, asserting that the
procedural violations at the manifestation determination review “deprived K.S. of
educational benefit and impeded [his receipt of a free appropriate public education].” Even
if we were to entertain these arguments, we would not find them persuasive. RISD
remained obligated to implement K.S.’s individualized education program at the
disciplinary alternative education center and confirmed that it would be able to do so there.
20 U.S.C. § 1415(k)(1)(D)(i); 30 C.F.R. § 300.530(d). Appellants have cited nothing in the
record to suggest that K.S.’s program was deficiently carried out there. See Reply Br. at 27
(alleging, without record citation, that “K.S. experienced a loss of reading instruction while
20
Case: 20-50003 Document: 00516102966 Page: 21 Date Filed: 11/22/2021
No. 20-50003
Appellants essentially assert that: (1) excluding an adult student from
a manifestation determination review is a per se actionable violation of IDEA
as a significant impediment to participation in the decision-making process;
and (2) failing to review all relevant information at a manifestation
determination review denies a student a free appropriate public education
because of the possibility of a different disciplinary outcome. We disagree.
As the district court correctly found, appellants “simply have not
demonstrated that [these] procedural violation[s] of the IDEA produced
substantive harm.” Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328
F.3d 804, 813 (5th Cir. 2003).
First, K.S.’s ability to participate in the decision-making process was
not “significantly impeded.” 20 U.S.C. § 1415(f)(3)(E)(ii)(II). Although he
missed the August meeting, he attended the subsequent September meeting.
And although the magistrate judge found that there was “no attempt”
proactively to have K.S. weigh in at the September meeting, the report did
not identify any procedural violation on the part of RISD personnel that
“significantly impeded” K.S.’s opportunity to participate at that meeting.
The magistrate judge further found, and the record supports the conclusion,
that RISD’s attendees did not predetermine the outcome of the September
meeting in August. Hence, K.S. had the opportunity to participate in an
at the [disciplinary center]”). And, in any event, they failed to raise such a claim
administratively, so the district court properly declined to consider it.
Appellants further contend that K.S.’s placement at the disciplinary center as a
result of the manifestation determination review led them to request K.S.’s early
graduation. But a “deprivation of educational benefits” requested by the student and his
parent(s) cannot itself render a procedural violation actionable. Rather, as the statute
instructs, the procedural violation must itself have “caused a deprivation of educational
benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii)(III) (emphasis added). Appellants’ own choice to
request early graduation was an intervening cause that broke the chain of causation.
21
Case: 20-50003 Document: 00516102966 Page: 22 Date Filed: 11/22/2021
No. 20-50003
actual decision-making process, even though he did not take advantage of it. 16
For this reason, the procedural violation in August did not ultimately result
in substantive, actionable harm. See E.R., 909 F.3d at 769–71 (holding that
alleged procedural violations were not actionable because parents were
present at a meeting and had the opportunity to participate, even though the
record was unclear whether the challenged decision was even “explicitly
discussed” at that meeting).
Second, appellants have not shown that K.S.’s right to a free
appropriate public education was impeded as a result of the meetings’ alleged
failure to consider all relevant information. Even assuming arguendo that the
September meeting would have come out differently if all relevant
information were considered, appellants still cannot show that K.S.’s
improper placement in the disciplinary alternative educational center
impeded his receipt of a free appropriate public education because RISD was
still obligated to implement his individualized education program there. See
20 U.S.C. § 1415(k)(1)(D)(i); 30 C.F.R. § 300.530(d). Thus, RISD’s
conceded procedural violation in failing to consider relevant information at
both manifestation determination reviews is not actionable.
16
Appellants do not argue that, absent K.S.’s absence at the August meeting, the
outcome of the September meeting would have been different. See Appellants’ Br. 49–51,
54 (arguing, at most, the “possib[ility]” of a different outcome). Nor do they have to: The
right to participate is “not the right to dictate an outcome and obviously cannot be
measured by such.” White ex rel. White v. Ascension Par. Sch. Bd., 343 F.3d 373, 380 (5th
Cir. 2003); but cf. S.H. ex rel. A.H. v. Plano Indep. Sch. Dist., 487 F. App’x 850, 866 (5th
Cir. 2012) (upholding the district court’s conclusion that the “procedural defect” of a
meeting participant’s absence had an outcome-altering “impact”). Still, K.S.’s attendance
at the September meeting, the outcome of which was not foreordained by the procedurally
defective August meeting, adequately afforded K.S. the opportunity to participate in the
actual decision-making process.
22
Case: 20-50003 Document: 00516102966 Page: 23 Date Filed: 11/22/2021
No. 20-50003
IV.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
23