Klein Independent School Dist v. Per Hovem , 690 F.3d 390 ( 2012 )

Case: 10-20694 Document: 00511945669 Page: 1 Date Filed: 08/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2012
No. 10-20694 Lyle W. Cayce
Clerk
KLEIN INDEPENDENT SCHOOL DISTRICT,
Plaintiff - Appellant
v.
PER HOVEM; KNUT HOVEM; SIGNE HOVEM,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Chief Judge:
Per Hovem (“Per”), a former student of Klein Independent School District
(“KISD”), along with his parents, filed a claim under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., for reimbursement
of private school expenses incurred because KISD allegedly failed to provide Per
with a free appropriate public education (“FAPE”) while Per was a KISD
student. The special hearing officer and the district court found in favor of the
Hovems. KISD appeals. The provision of FAPE to a student qualified for special
education must be judged by the overall educational benefits received, and not
solely by the remediation of the student’s disability. Because this student’s IEPs
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enabled him to excel, with accommodations for his disability, in a mainstream
high school curriculum, KISD complied procedurally and substantively with
IDEA.
I. Background
Appellee Per Hovem is a former student of KISD who suffers from several
disabilities in the area of written expression. Born in Norway in 1989, Per
moved with his parents to Texas just before beginning the fifth grade. From the
start of his enrollment in KISD, Per demonstrated high intelligence (ultimately,
a 142 IQ) and above-average performance in math and social studies.
Nevertheless, Per demonstrated writing and language difficulties, along with
symptoms of attention deficit disorder (“ADD”). The school’s Admission, Review,
and Dismissal (“ARD”) committee found that Per’s “writing skills were extremely
limited, that his spelling and handwriting skills were very poor, and that he had
difficulty in transferring information to paper.” KISD determined that he was
eligible for special education services, including an English resource class, as of
December 3, 2001. Per and one or both parents met with various KISD teachers
and experts in periodic ARD meetings throughout his public school career; all
agreed, until the end, on his Individualized Education Program (“IEPs”)
prepared to comport with IDEA.
On October 30, 2003, KISD occupational therapist Dawn McDonald issued
a report recommending that Per use a portable speller to address his spelling
difficulties, a particular area of weakness for him. KISD provided the portable
speller to Per for class and home use for the next five years. Beginning in the
2003-2004 school year, KISD provided Per study guides for his classes and hard
copies of class notes. He was also permitted to use a computer in class for essay
and written responses to assignments, while other students were required to
handwrite their work. KISD made various accommodations because of Per’s
diagnosed difficulty in transferring information to paper by hand. He was
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allowed to correct his spelling errors without penalty, to take extra time on
written work, and to answer essay test questions orally.
On entering high school, Per began attending regular education classes,
albeit with the accommodations noted above, including the ability to type
written work at home. Pursuant to his parents’ request, he was placed on a trial
basis in a regular English I class (with accommodations). Per and his parents
signed the ARD, which stated as Per’s “Transition Plan” that he would graduate
Outcome 1 (Regular Graduation) and attend college. In January, 2005, Klein’s
educational diagnostician Hilda Castagnos tested Per extensively and found
significant disparity between his strong achievement in reading comprehension
and relative weakness in areas of written expression, pseudo-word decoding and
word reading. Not only did Per pass all his classes, however, he received a 92 in
the “trial” semester of English I.
The tenth grade was again academically successful for Per. During the fall
of 2005, Per’s mother solicited tutoring from Mr. Greer, an English teacher, to
assist Per on the TAKS writing test scheduled in February 2006. Per attended
a couple of times but then, without explanation, stopped attending. With
accommodations, he completed his courses with above-average grades, passed
all sections of the state-mandated TAKS test, including the writing test, and
achieved a commended Social Studies ranking.1
In September 2006, Per’s ARD committee met to create his IEP for the
junior high school year. The IEP listed as among Per’s annual goals that he
would receive a passing score in all classes and would advance one grade level,
with or without the use of technology or a spelling device. Per was to attend
regular education classes but would continue to receive accommodations
including extra time to complete written assignments, the opportunity to
1
During fall 2005, the ADD diagnosis was removed from Per's profile.
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respond orally to assignments, printed copies of class notes, and the continued
use of his portable speller in class and at home. Per expressed his desire to
attend NYU following graduation. Significantly, Per’s parents questioned his
writing skills. Ms. McDonald, an occupational therapist, was tasked to evaluate
his success with assistive technology. She was aware that teachers had not seen
Per using his portable speller in their classes, but Per assured her that he could
use it. Indeed, he was given and used a portable French speller in his
second-year French class. (Later, in the administrative hearing, Per confirmed
that he felt uncomfortable using the portable speller in mainstream classes and
that it sometimes took a frustratingly long time to use.) Ms. McDonald
concluded her evaluation recommending continued use of the portable speller
and classroom computers.
Per continued to earn above-average grades in his junior year in the
following classes: English, Algebra 2, Chemistry, United States History,
French 2, Theater Production, and Art. He was expected to pass the TAKS test
administered at the end of the year, and he achieved Commended scores in
Social Studies and Science, but he failed the written composition sections, which
comprised a portion of the exit level English test.
Responding to this singular failure, the school placed Per in a practical
writing course during his senior year. Conducted by Mr. Greer, an experienced
teacher, this small class was designed for students who failed the written portion
of the ELA TAKS test. The class met daily and systematically covered basic
writing skills. Per never attended the additional tutoring Greer offered. At the
administrative hearing, however, Per testified that Greer’s approach most
closely resembled his later remedial instruction at Landmark School and, as
such, was helpful to him. Mr. Greer testified in the hearing that by spring 2008,
he thought Per had developed skills sufficient to enable his passing the writing
portions of the TAKS test, with the use of a computer.
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The ARD committee, meeting in mid-September, had planned Per's
program for his senior year. At that time, with the acquiescence of Per and his
parents, his accommodations were reduced to the use of a computer for writing
assignments and the portable speller. He would remain in mainstream classes,
including Mr. Greer’s practical writing course, and would receive “special
education monitoring” of only 30 minutes per semester. No change was made
concerning his college-bound intentions. Reinforcing the expectations for Per,
two of his SAT scores in October testing were very high: 650 (89th percentile
nationally) in Critical Reading and 640 (84th national percentile) in Math. His
SAT Writing score, however, was a lowly 340 (6th percentile nationally).
Per and his parents soon became convinced he was incapable, by virtue of
his disability in written expression, of performing college-level work. His mother
observed him struggle for hours and days while attempting to fill out college
application forms and essays. His writing, she said, was so poor that he could
not take phone messages at home. He failed both the October and spring
re-takes of the ELA TAKS writing test.2 The family had him re-evaluated and
began looking into Landmark School in Boston, which specializes in teaching
intelligent disabled students with methods designed to ameliorate their
deficiencies in writing, spelling, and phonetics.
Not until March 2008 did a Klein English teacher, although familiar with
Per’s accommodations, recognize the extent of Per’s difficulty in writing as she
watched him make up an in-class essay assignment for her. Previously,
Ms. Marek testified, his major papers had been turned in after being typed at
home (like those of other students) and were at least as good as those of his
2
When asked at the hearing why he left the spring test well before the allotted time
had run, Per explained that he thought he had done well enough to pass. He also explained
candidly that what he thought was sufficient writing and proofreading could be “totally
non-cohesive and non-anything” to an observer unfamiliar with his writing and style.
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peers. His written classwork was acceptable. His ability to read out loud, she
said, was fine. Per never availed himself of graphic organizing materials she
furnished the students to assist, inter alia, in framing their college essays, nor
did he attend any of her regularly scheduled tutoring sessions.
In order to delay his graduation and preserve his eligibility for Landmark
School, which would not accept high school graduates, Per dropped an economics
class required for graduation from Klein. Beginning in May, a series of ARD
committee meetings occurred in which the Hovems contended that Per had not
received a FAPE from Klein, while the Klein participants urged Per to finish the
economics class during the summer and graduate--with a waiver of the ELA
TAKS test if necessary.3 Per instead enrolled in Landmark’s summer school
program, followed by at least one additional full school year there.
Because Klein refused to reimburse the Hovems for the costs of attending
Landmark, they pursued an administrative due process hearing. The hearing
officer held, in essence, that Per’s IEPs had been insufficiently tailored to his
unique needs because they failed to contain sufficient transitional planning for
his entry into college and failed to address his learning disability. The hearing
officer concluded Per had not received a FAPE, i.e., an educational benefit,
because of these IEP procedural deficiencies. Finding the Landmark School an
appropriate placement, he ordered the district to reimburse the family for more
than two years’ attendance costs.
The district court affirmed the conclusion of the special hearing officer that
KISD failed to provide Per with a FAPE and that the Hovems were entitled to
reimbursement for the tuition costs, but not residential costs, of the Landmark
School. KISD here appeals the decision of the district court.
3
Under Texas law, when Per reached 18 in November 2007, he became his own
decisionmaker for IDEA purposes.
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II. Standard of Review
In cases such as this, “although the district court must accord ‘due weight’
to the hearing officer’s findings, the court must ultimately reach an independent
decision based on a preponderance of the evidence.” Cypress-Fairbanks Indep.
Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997) (citations omitted)
(hereafter, “Michael F.”). Thus, the district court’s review of the special hearing
officer’s recommendation is “virtually de novo.” Id.4
This court reviews de novo, as a mixed question of law and fact, the district
court’s decision that a school district failed to provide a FAPE under IDEA.
Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993). The
district court’s findings of “underlying fact” are reviewed for clear error. Id.“The clear error standard of review ‘precludes reversal of a district court’s
[factual] findings unless [the appellate court is] left with a definite and firm
conviction that a mistake has been committed.’” Hous. Indep. Sch. Dist. v. V.P.
ex rel. Juan P., 582 F.3d 576, 583 (5th Cir. 2009) (quoting Jauch v. Nautical
Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006) (internal quotation marks and
citations omitted)). Whether the student obtained educational benefits from the
school’s special education services is a finding of underlying fact. Teague,
999 F.2d at 131. A party attacking the district’s IEP bears the burden of
demonstrating its non-compliance with IDEA. Id.4
The district court’s opinion in this case erroneously recited “clear error” as its
standard of review when discussing the hearing officer’s decision. However, this citation
follows nearly two pages of discussion correctly articulating the virtually de novo review
required of district courts. And following the standards discussion are a 28-page description
of the factual record, a 50-page summary of the parties’ legal and factual briefing and 16 pages
of the court’s substantive analysis. In context, we attribute no adverse consequence from the
passing error.
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III. Discussion
The central issue raised by KISD is whether Per Hovem received a FAPE
consistent with IDEA.
IDEA requires the development of an individualized education program
(“IEP”) for each child falling within the purview of IDEA. IEPs are created and
periodically reviewed following meetings at which parents, teachers, other
school personnel, and educational experts all participate. 20 U.S.C.
§ 1414(d)(1)(B). The IEP includes a statement of the special education, related
services and accommodations the school will provide to the child. 20 U.S.C.
§ 1414(d)(1)(A). Once school officials and parents agree on the IEP, the school
district must put it into effect. 20 U.S.C. § 1414(d)(2)(A). The IDEA requires
that school districts allow parents to play a significant role in the development
of IEPs for each child with a disability. Winkelman ex rel. Winkelman v. Parma
City Sch. Dist., 550 U.S. 516, 524, 127 S. Ct. 1994 (2007).
IDEA also requires states to establish procedures to resolve IEP-related
disputes between parents and school districts. 20 U.S.C. §§ 1414, 1415. A state
must provide parents an opportunity to present complaints “with respect to any
matter relating to the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education to such child.”
20 U.S.C. § 1415(b)(6)(A). If such a complaint cannot be resolved to the parents’
satisfaction, they may proceed to an impartial due process hearing. 20 U.S.C.
§ 1415(f)(1)(A). The hearing generally is limited to the identification, evaluation,
or educational placement of the child, or to determining whether the child
received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(I).
After parents have exhausted the available administrative procedures, any
involved party aggrieved by the final decision of the state education agency that
conducted the hearing may “bring a civil action with respect to the complaint
presented pursuant to this section” in state or federal court. 20 U.S.C.
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§ 1415(i)(2)(A). While the court must receive the record of the administrative
proceeding and give it “due weight,” it must also hear any additional evidence
the parties present. 20 U.S.C. § 1415(i)(2)(C); Board of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034 (1982).
IDEA authorizes the court then to issue “appropriate” relief. 20 U.S.C.
§ 1415(i)(2)(C).
Parents who remove their child from a public school setting because they
believe that the public education program fails to provide a FAPE and who place
their child in a private school for that reason are entitled to reimbursement if
the court holds that the proposed IEP did not provide a FAPE and the private
school placement was “appropriate.” School Comm. of Burlington v. Department
of Educ. of Mass., 471 U.S. 359, 369 (1985); see also, 34 C.F.R. 300.148(c); Forest
Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S. Ct. 2484, 2496 (2009).
IDEA guarantees only a “basic floor” of opportunity, “specifically designed
to meet the child’s unique needs, supported by services that will permit him to
benefit from the instruction.” Rowley, 458 U.S. at 188-89, 102 S. Ct. at 3042; see
also Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 292 (5th Cir. 2009)
(citations omitted). An IEP need not be the best possible one, nor does it entitle
a disabled child to a program that maximizes the child’s potential. Michael F.,
118 F.3d at 247-48. Nevertheless, a school district must provide the student
with a meaningful educational benefit. See Juan P., 582 F.3d at 583 (citing
Michael F., 118 F.3d at 248 (5th Cir. 1997) (citations omitted)).
This court’s de novo review of the adequacy of an IEP is limited to two
basic questions: (1) Did the school district comply with the procedural
requirements of the IDEA?; and (2) Is the IEP reasonably calculated to enable
the student to receive educational benefits? Rowley, 458 U.S. 176, 206–7,
102 S. Ct. at 3051 (1982). With respect to the first inquiry, “procedural defects
alone do not constitute a violation of the right to a FAPE unless they result in
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the loss of an educational opportunity[.]” Adam J. ex rel. Robert J. v. Keller
Indep. Sch. Dist., 328 F.3d 804, 812 (5th Cir. 2003) (quoting T.S. v. Indep. Sch.
Dist. No. 54, 265 F.3d 1090, 1095 (10th Cir. 2001)). Four factors guide the
court’s analysis of the second inquiry. The court evaluates whether: “(1) the
program is individualized on the basis of the student’s assessment and
performance; (2) the program is administered in the least restrictive
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.” Michael F., 118 F.3d at 253. This Court, however,
has “not held that district courts are required to consider them or to weigh them
in any particular way.” Michael Z., 580 F.3d at 293.
KISD contends that it met its statutory obligation to provide Per Hovem
with a FAPE, as evidenced in part by his better-than-average grades in
mainstream general education classes and his continuous, timely progress
toward high school graduation. KISD underscores that mainstreaming disabled
students into the curriculum with non-disabled students is among the express
objectives of the IDEA. 20 U.S.C. § 1412(a)(5)(A). KISD further contends that
KISD’s mainstream educational program, coupled with Per’s special
accommodations described above, were not required to completely remediate
Per’s disability in order to prepare him for post-graduation employment or
education.
The Hovems insist that KISD failed to provide Per with a FAPE. They
argue that KISD cannot rely on Per’s academic success in areas allegedly not
affected by his disability in order to justify KISD’s claim to have provided a
FAPE. Rather, they assert that his IEPs were not sufficiently individualized,
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the collaborative process was thwarted, and KISD afford no “academic benefit”
tailored to his disability.5
The district court relied upon the second Rowley prong in determining that
KISD failed to provide a FAPE to Per. Considering the four Michael F. factors,
the court determined that only the second factor, that the program be
administered in the least restrictive environment, partially supported KISD’s
position that Per’s IEP was reasonably calculated to provide him with
meaningful educational benefit.
Unfortunately, the court’s reasoning is flawed by its legal error in
interpreting the “educational benefit” afforded Per solely in terms of weaknesses
caused by his learning disability rather than his overall academic record at
Klein. Factual findings made under an erroneous view of controlling legal
principles are reviewed de novo. Flint Hills Resources LP v. Jag Energy, Inc.,
559 F.3d 373, 375 (5th Cir. 2009) (quoting Houston Exploration Co. v.
Halliburton Energy Servs., Inc., 359 F.3d 777,779 (5th Cir. 2004). In Rowley, the
Supreme Court clearly and repeatedly expressed IDEA’s purpose “to confer some
educational benefit upon the handicapped child.” 458 U.S. at 200, 102 S. Ct. at
3048 (emphasis added). The Court quoted the statute as affording “specially
designed instruction” and services “to assist a handicapped child to benefit from
special education. § 1401(17) (emphasis added).” Id. Rowley declined to fix any
single test to determine the adequacy of benefits that must be conferred by
IDEA; this court’s Michael F. test fills in some gaps. But Rowley held that for
a particular child who had received “substantial” specialized instruction and
services to compensate for deafness and “who is performing above average in the
regular classrooms of a public school system,” the IEP was sufficient to afford
5
The Hovems also challenge various aspects of the IDEA procedures followed by KISD,
but these claims were rejected or subsumed in the district court’s findings that he did not
receive a FAPE.
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her a FAPE. The Court held, “the IEP, and therefore the personalized
instruction, should . . . if the child is being educated in the regular
classrooms . . . be reasonably calculated to enable the child to achieve passing
marks and advance from grade to grade.” 458 U.S. at 204, 102 S. Ct. at 3049.
Rowley not only enjoined lower courts to be “careful to avoid imposing their view
of preferable educational methods . . .” 458 U.S. at 207, 102 S. Ct. at 3051, but
on the facts before it rejected a demand that the particular student be furnished
additional auditory services to maximize her potential. 458 U.S. at 198,
102 S. Ct. at 3047.
Nowhere in Rowley is the educational benefit defined exclusively or even
primarily in terms of correcting the child’s disability. Certainly, given the wide
range of disabilities covered by IDEA, remediation may often be part of an IEP.
Behavioral modifications, for instance, immediately come to mind as an example
of an IEP strategy that may remediate a disability while also being necessary to
confer educational benefits. But the whole educational experience, and its
adaptation to confer “benefits” on the child, is the ultimate statutory goal.
From this holistic perspective, we have carefully reviewed Per’s IEPs, his
high school educational record, his assessments and the administrative hearing
record. Our application of each of the Michael F. factors thus necessarily differs
from those of the district court and hearing officer.
First, KISD customized Per’s educational program “on the basis of the
student’s assessment and performance.” Michael F., 118 F.3d at 253. The
district court overlooked the series of accommodations, listed above, that were
accorded Per in all of his classes. While criticizing KISD for not addressing Per’s
failure to use the portable speller, the court also overlooks that Per chose not to
use it and misinformed the therapist about his intentions. The district court
suggests, on one hand, that Per was not held to the same academic standards as
other students in general education classes, while on the other hand, the court
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states that Per was a successful student in spite of, not because of, his IEPs.
Aside from the internal inconsistency of these findings, there is no record
evidence that Per was assigned a lighter workload: he was instead allowed to
prove his mastery of subjects in a different way, using accommodations. The
accommodations were tailored to allowing him to undertake regular education
classes for which he was obviously well suited apart from his disability.
The fundamental issue as seen by the district court is whether Per’s
program, fully acquiesced in by his parents until his senior high school year, was
not sufficiently individualized because it failed to enable him to write and spell
better. On the facts before us, Rowley is decisive. As has been noted, overall
educational benefit, not solely disability remediation, is IDEA’s statutory goal.
Per’s IEPs were sufficient because they were “reasonably calculated to enable
[Per] to achieve passing marks and advance from grade to grade” in mainstream
classes. Rowley, 458 U.S. at 204, 102 S. Ct. at 3049. Moreover, an IEP is not
required to maximize a child’s potential, but to provide “a basic floor of
opportunity.” See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 346 (5th
Cir. 2000) (paraphrasing Rowley). Finally, Rowley emphasizes that courts
should not lightly disregard educators’ decisions on the appropriate educational
methods to achieve a FAPE. Whether KISD could have remediated Per’s
disability more effectively is debatable, but the school district did far more, and
offered him far more, than robotic IDEA form-checking to assist his performance
in school. And, to say nothing of his generally admirable academic career, the
record shows that he made progress in his written expression over the course of
high school. His IEPs were sufficiently individualized.
The district court and hearing officer also held the IEPs insufficient
because Per’s Transition Plan was “not individualized by any objective,
measurable goals” to meet his needs after high school. IDEA requires
preparation of Transition Plans covering a child’s post-secondary goals and
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services. 20 U.S.C. § 1414(d)(1)(A)(i)(VIII). Under these circumstances, any
insufficiency was a procedural violation of IDEA. See Bd. of Educ. v. Ross,
486 F.3d 267, 276 (7th Cir. 2007). “Procedural deficiencies alone do not
constitute a violation of the right to a FAPE unless they result in the loss of an
educational opportunity” or “infringe [ ] parents’ opportunity to participate in the
IEP process.” Adam J., supra, 328 F.3d at 812. Per’s Transition Plans
consistently called for him to graduate Outcome 1 (Regular Graduation). His
family failed to avail themselves of KISD’s college application assistance
resources when they decided Per was not ready to attend college. The Transition
Plans alone did not cause him to “lose an educational opportunity” for college
education that the school was required to provide.
Second, there is no real dispute that, because he was enrolled in
mainstream classes, Per was furnished specialized educational services in the
least restrictive environment. Michael F. , 118 F.3d at 253; see also 20 U.S.C.
§ 1412(a)(5)(A) (requiring mainstreaming to maximum feasible extent).
Third, Per’s services were provided in a collaborative and coordinated
manner by the key “stakeholders.” Michael F., 118 F.3d at 253. The district
court’s contrary holding, and the Hovems’ argument on appeal, centers on the
parents’ having been “misled” about the extent of Per’s expressive difficulties
until he was re-tested in his senior year of high school. Because, they contend,
the Hovems were misled about his poor performance in writing and spelling and
were lulled into complacency by reports of Per’s intelligence and equable nature,
they could not effectively participate in the collaborative process. There is no
suggestion that appropriate KISD participants failed to attend ARD meetings,
falsified information, or failed to “coordinate” Per’s services or accommodations
while he attended school there. Thus, there was no failure of collaboration
absent the factual premise that the Hovems were misled. But we must reject
that premise. The positive facts that Per was well-liked by his teachers and was
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regarded as a talented student were in no way misleading, though they may
have afforded false comfort regarding his deficiencies. Nevertheless, testing
performed in 2005 revealed his deep disorder of written expression co-existing
with otherwise superior abilities.6 Per apparently relied on family members to
type papers at home, and his mother knew he would not write phone messages.
At some level there may been failures to communicate or of mutual
understanding, but the record affords no basis for concluding that KISD misled
the Hovems so as to undermine the goal of collaboration for Per’s benefit.
Fourth, and most significant, Michael F. inquires whether positive
academic and non-academic benefits accrued to the student. 118 F.3d at 253.
This court has stated, “clearly,” evidence of an academic benefit militates in
favor of a finding that an IEP is appropriate. Adam J. ex rel. Robert J. v. Keller
Indep. Sch. Dist., 328 F.3d 804, 810 (5th Cir. 2003). See also Juan P. 582 F.3d
576, 588 (5th Cir. 2009) (“educational benefit” one of the most critical factors in
assessing an IEP). Viewed from the holistic Rowley perspective, rather than the
district court’s narrow perspective of disability remediation, Per obtained a high
school level education that would have been sufficient for graduation. (Indeed,
Per is in college now.) As Rowley notes, when a learning disabled student “is
being educated in the regular classrooms of the public education system, [an
IEP] should be reasonably calculated to enable the child to achieve passing
marks and advance from grade to grade.” 458 U.S. at 204, 102 S. Ct. at 3049.
This is because grading and advancement in regular classrooms monitor a child’s
6
Further testing in 2008 dramatized Per’s problems by affixing grade level competence
estimates in certain areas like “word attack.” KISD challenges grade-level assessments as
educationally dubious, and certain of Per’s results seem at odds with his demonstrated talents.
Rather than attempt to resolve a debate better suited for specialists, we simply note the
similarity between the general areas of weakness found in both 2005 and 2008, in testing
administered, respectively, by Klein and the parents’ experts. Per’s disorder of written
expression included his omitting words when writing and difficulties in spelling, legibility, and
transferring thoughts to paper.
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progress, and the “system itself” confirms the extent of educational benefit to the
child. 458 U.S. at 203, 102 S. Ct. at 3049. This is not a case where Per regressed
educationally or could not measure up to ordinary grade-level standards.
Compare Juan P., supra, 586 F.3d at 588-90 (IEP insufficient because student
would not have advanced without lowered standards), with Bobby R., supra,
200 F.3d at 350 (advancement is not required in every area to obtain an
educational benefit from an IEP).
In sum, each of the Michael F. factors, analyzed under the correct legal
standard, supports the conclusion that Per’s IEPs were adequate to confer a
FAPE. It is regrettable that the sources of Per’s disability of written expression,
having been early exposed, were not attacked earlier in his educational career.
The school district, however, did not fail to comply with IDEA when the means
it used facilitated Per’s substantial achievements in secondary school. Rowley
requires no more.
Conclusion
For these reasons, the judgment of the district court is REVERSED and
RENDERED.
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No. 10-20694
CARL E. STEWART, Circuit Judge, dissenting.
As the majority notes, Defendant-Appellee Per Hovem is an intelligent
former student of Plaintiff-Appellant Klein Independent School District (KISD).
Though Per was a gifted student in other areas, he suffered from a special
learning disability in the area of written expression, which is covered by the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.
When Per’s parents, Defendants-Appellees Knut and Signe Hovem, realized that
he was not improving in his area of disability, they removed him from KISD and
enrolled him in the Landmark School, which specializes in language-based
learning disabilities. Per’s parents subsequently filed an administrative
complaint, seeking reimbursement for Per’s educational expenses at the
Landmark School. Both the Texas Education Agency special education hearing
officer assigned to the case and the district court, upon review of the extensive
administrative record, concluded that KISD had failed to provide Per a free
appropriate public education (FAPE) as required by the IDEA. Contrarily, the
majority concludes that KISD satisfied its obligations under the IDEA by
mainstreaming Per into the regular education classroom setting, where he
achieved passing marks. As the majority improperly displaces our deferential
review of a district court’s factual determinations rendered in the IDEA context,
and as the majority’s holding can be interpreted to permit federally-funded
school districts to circumvent the purposes of the IDEA by socially-promoting
disabled students in mainstream curricula without addressing the individualized
special needs of their respective disabilities, I respectfully dissent.
I.
We review de novo, as a mixed question of law and fact, the district court’s
decision that a school district failed to provide a FAPE under the IDEA;
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however, the district court’s findings of “underlying fact” are reviewed for clear
error. Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993).
Whether the student obtained educational benefits from special education
services is a finding of underlying fact. Id. at 131. “The clear error standard of
review ‘precludes reversal of a district court’s [factual] findings unless [the court
is] left with a definite and firm conviction that a mistake has been committed.’”
Hous. Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 583 (5th Cir. 2009)
(quoting Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006)
(internal quotation marks and citations omitted)).
The IDEA guarantees a “basic floor” of opportunity, “specifically designed
to meet the child’s unique needs, supported by services that will permit him to
benefit from the instruction.” Richardson Indep. Sch. Dist. v. Michael Z., 580
F.3d 286, 292 (5th Cir. 2009) (citations omitted) (emphasis added). “IDEA does
not entitle a disabled child to a program that maximizes the child’s potential.”
Id. “‘Nevertheless, the educational benefit to which the Act refers and to which
an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP
must be likely to produce progress, not regression or trivial educational
advancement.’” Juan P., 582 F.3d at 583 (citing Cypress-Fairbanks Indep. Sch.
Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir. 1997)) (emphasis added). A
school district must provide the student with “meaningful” educational benefit.
Id.The IDEA requires that school districts develop an IEP for each child with
a disability, and parents play a significant role in the process. Winkelman ex rel.
Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007). The IEP is
required to include a statement of the child’s present levels of academic
achievement, to include “how the child’s disability affects the child’s involvement
and progress in the general education curriculum[,]” as well as a statement of
measurable annual goals designed to “meet the child’s needs that result from the
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child’s disability to enable the child to be involved in and make progress in the
general education curriculum[.]” 20 U.S.C. § 1414(d)(1)(A)(i)(I)(aa)-(II)(aa).
II.
We have set out four factors to guide our analysis of whether an IEP is
reasonably calculated to provide meaningful educational benefit to a disabled
student: “(1) the program is individualized on the basis of the student’s
assessment and performance; (2) the program is administered in the least
restrictive environment; (3) the services are provided in a coordinated and
collaborative manner by the key ‘stakeholders’; and (4) positive academic and
non-academic benefits are demonstrated.” Michael F., 118 F.3d at 253. “[W]e
have not held that district courts are required to consider them or to weigh them
in any particular way.” Michael Z., 580 F.3d at 293.
Applying these factors, the district court concluded that the first, third,
and fourth factors favored the Hovems, and only the second factor partially
supported KISD’s position. Specifically, the district court found that, after years
of being assured that Per was making progress in the area of his disability
because he was passing his regular education classes, the Hovems independently
sought extensive testing and discovered that Per was functioning significantly
below grade level in his area of disability, which prompted them to remove him
from KISD and enroll him in the Landmark School.
The district court further found that Per’s IEPs were unchanged for three
years of high school, and were not reasonably calculated to enable him to receive
educational benefit. The shortcomings of Per’s IEP are evident. Per’s meager
annual goals- to achieve passing marks and advance to the next grade level-
were not individualized because these are the goals for all students.
Additionally, for special services, Per was assigned a computer and portable
speller, which KISD employees, though aware the tools were not being used,
made no effort to ensure that he use. KISD likewise failed to research or
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identify alternative devices to assist Per. Under this program of instruction, Per
scored 650 in reading and 640 in math on his SAT, yet only 320 on the writing
portion of the test. He failed the written portion of the Texas Assessment of
Knowledge and Skills (TAKS) in three attempts during his final two years in
public high school.
Moreover, although Per was mainstreamed into the regular education
setting, the district court found that he was not held to the same standards as
his non-disabled classmates. Rather, he was routinely excused from turning in
homework and permitted to answer questions orally when teachers could not
decipher his written work. It is undisputed that, in order to enable Per to
graduate from public high school, KISD waived passage of the written TAKS as
a requirement for graduation.
The underlying facts, as set forth by the district court in a painstakingly-
detailed 124-page written decision, clearly demonstrate to me that KISD failed
to address Per’s learning disability in an individualized fashion, as is required
by the IDEA. Instead, KISD swept Per’s deficits under the proverbial rug,
placing him in the regular education curriculum and setting only generalized
educational goals in his repetitive IEPs, making exceptions to enable him to pass
his mainstream classes while ignoring that the tools meant to assist him went
effectively unused for years, all the while applauding Per’s good grades to his
parents as evidence of his progress.
Confronted with these facts, the majority curiously reasons that the
district court’s factual determinations are not entitled to clear error review, and
instead are subject to de novo review, because the district court had “an
erroneous view of controlling legal principles.” This, in spite of the district
court’s accurate references to the appropriate legal standards governing this
case, including Board of Education v. Rowley, 458 U.S. 176 (1982). Given the
district court’s exhaustive recitation of the law at issue here, as well as the
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district court’s lengthy explanation of the reasons for its decision, I am convinced
that the district court was well aware of the substantive legal standards
implicated by the IDEA and engaged in an appropriately rigorous review of the
hearing officer’s determination. Moreover, my reading of the record satisfies me
that the district court not only recited the correct legal standards, it faithfully
adhered to them as well.
Furthermore, the majority has failed to satisfactorily explain how the
district court’s purported “erroneous view” of the law misled it in determining
the numerous underlying facts, such as the fact the Per’s IEP was unchanged for
three years, the fact that Per’s teachers excepted him from written work, the fact
that KISD waived passage of the written TAKS as a graduation requirement,
and the fact that KISD officials were aware that he did not use his assistive
devices yet did nothing. In my view, the majority’s analysis is fueled by an
unwarranted usurpation of the role of fact-finder, appropriately reserved to the
hearing officer and district court.
III.
Applying our appropriately deferential standard of review to the district
court’s factual conclusions, including the district court’s factual finding that Per
did not obtain educational benefits from the meager special education services
afforded him by KISD, the judgment of the district court and hearing officer
should be affirmed. However, even assuming arguendo the correctness of the
majority’s contention that de novo review should apply to the district court’s
factual findings, there is abundant persuasive evidence in the record
establishing that Per’s academic program was not tailored in order to produce
meaningful educational benefit, that Per’s academic program was not
individualized according to his distinct needs, and that KISD failed to devote
significant and serious effort to collaborate with Per and his parents in the
development of his academic plan.
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The administrative record consists of hundreds of pages, and includes
Per’s IEPs and the transcript of the administrative due process hearing. Over
the course of three days in December 2008, Per and his family put on eleven
witnesses, including two expert witnesses, and KISD put on five witnesses. The
following month, the Texas Education Agency special education hearing officer,
after considering all of the evidence presented, rendered a twenty-four page
decision in Per’s favor. Specifically, the hearing officer determined that KISD
denied Per a FAPE because his program of instruction was not developed to
address his individualized educational needs.
The record itself is replete with acknowledgments, many from KISD’s own
employees, of KISD’s failure to adequately and appropriately respond to the
particularized nature of Per’s writing deficit. Instead, Per was thrust into the
general curriculum and consistently promoted, all the while his weaknesses
were effectively ignored.
For instance, Dr. Mary Rosenberg, KISD’s executive director of student
support services, testified at Per’s due process hearing that although school
officials were aware that Per had deficits in written expression, reading,
spelling, and homework completion, there were no goals and objectives set forth
in his IEPs to address these problems. Dr. Rosenberg admitted that KISD’s sole
criterion for determining whether to formulate annual goals, objectives, and
services to address a student’s deficit is whether the problem impaired the
student’s ability to progress in the regular curriculum. Accordingly, so long as
Per continued to receive passing marks, KISD, pursuant to its narrow
interpretation of its responsibilities under the IDEA, would not implement goals,
objectives, or services to respond to his significant educational deficits, of which
KISD had long been aware. Dr. Rosenberg further admitted that Per’s IEP’s did
not include goals and objectives related to transition planning, and that his
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stated goals, to achieve passing grades and progress through the general
curriculum, went unchanged from 2006 through 2008.
Mr. Greer, an English teacher at Per’s former high school, testified that
95 percent of students at the school pass the written portion of the TAKS. When
Per’s mother became concerned about Per’s lack of progress in his area of
disability during tenth grade, she reached out to Per’s counselors, who in turn
referred her to Mr. Greer, who admittedly was not specially trained to respond
to Per’s unusual deficits. Mr. Greer further testified that school officials did not
give him specific details regarding Per’s learning problems.
Mr. Greer soon realized that Per would require significant help to prepare
him for the TAKS. While it took an average tenth grader less than a minute to
write a sentence, it took Per ten to fifteen minutes. It could also take Per three
or four days to write a paragraph. Yet, no one associated with KISD suggested
that Per have regularly scheduled sessions with Mr. Greer, who would have been
willing to participate as his schedule permitted. Mr. Greer testified that he
ultimately had three or four tutoring sessions with Per, which did not even
attempt to address Per’s spelling difficulties.
After failing the written TAKS in eleventh grade, Per was assigned to Mr.
Greer’s writing skills class, which was assigned to all students who failed the
written TAKS, in twelfth grade. Mr. Greer testified that Per would “labor” over
his work, a contrast to the majority’s description of him, which suggests that Per
was simply unwilling to improve his performance. Mr. Greer was aware of only
one academic goal for Per: that he pass the TAKS test. Mr. Greer testified that
he believed Per was a regular education student with accommodations, rather
than a special needs student. Mr. Greer testified that Per rarely used his
portable speller and preferred to look words up in the dictionary himself. As
expressed above, in spite of being a student in Mr. Greer’s writing skills class,
Per failed the written TAKS twice more during his senior year.
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Ms. Marek, Per’s senior year English teacher, also testified at his due
process hearing. She admitted that she was not a special education teacher, and
had received no training to address Per’s learning disabilities in the two years
prior to the hearing. She recalled an occasion during the spring of Per’s senior
year when he demonstrated significant difficulty in completing an in-class essay
assignment, putting his hand on his forehead. Following this incident, Ms.
Marek took it upon herself to notify Per’s parents and suggest assistive
technology. As a result of her efforts, Per was given the Kurzweil computer
program for use in his writing assignments. The program allowed Per to
complete work more swiftly; however, even with the assistance of the program,
it took Per forty minutes to complete a short essay while it took an average
student only ten minutes.
Dawn McDonald, an occupational therapist for KISD, also testified at the
due process hearing. Ms. McDonald admitted that she became aware in tenth
or eleventh grade that Per did not use his portable speller, but believed that
there was nothing that she could do about it. Even after she received reports
from teachers that Per did not use his speller, she did not address those reports
with him. When asked whether she would describe Per’s failure to use the
portable speller in class as a refusal of help, Ms. McDonald answered that Per
is “the most respectful young man I have ever met in my life” and that she
“would never say he would refuse me.” She conceded that when a student’s
behavior interferes with his learning, the school is obligated to assess the
student’s behavior. However, she admitted, Per’s failure to use his speller was
never assessed.
Ms. McDonald testified that she did not recommend any software
programs as alternative assistive technology until the spring of his senior year,
after Ms. Marek’s urging. More troubling is Ms. McDonald’s admission that she
never believed that Per’s portable speller was the best device to assist him, as
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she “felt . . . the best device for Per had auditory feedback.” Yet, because Per
preferred to use the speller without auditory feedback, that is the one she
assigned to him. Ms. McDonald admitted that from the fall of 2003 through the
fall of 2008, she never brought up the subject of using an auditory feedback
speller to Per or his parents.
In January of 2005, Per’s mother requested that he be evaluated for
dysgraphia, a writing disorder. Ms. McDonald admitted that it would have been
her job to perform such an evaluation. However, as the matter was not properly
referred to her, a dysgraphia evaluation was never performed.
Ms. McDonald acknowledged that she dismissed Per from her occupational
therapy services in September of his senior year, even though she was aware by
his junior year that Per’s speller was not being used and even though Per had
already once failed the written TAKS. Ms. McDonald admitted during her
examination that Per’s annual goals, as set forth in his IEPs, failed to provide
measurable objectives to enable Per to achieve academically. She also admitted
that the “measurable educational outcomes” section of one of Per’s occupational
therapy evaluations improperly included goals, such as copying assignments
from the board and producing legible work, that were not in fact measurable.
Hilda Castagnos, an educational diagnostician for KISD, testified that
even though her evaluation report indicated that Per had “severe discrepancies
between achievement and intellectual ability in the areas of reading
comprehension, basic reading skills, and written expression” which were
“consistent with a diagnosis of dysgraphia,” she did not find it necessary to
assess Per to determine whether dysgraphia was an appropriate diagnosis.
Per testified at the hearing on his own behalf regarding his educational
struggles while a student at KISD. Per explained that he has weaknesses in
spelling, the ability to read with understanding, and organizing written
material. He claimed that KISD officials responded to his unusual disability in
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a “generic” and “catch all” fashion, pushing him into the regular curriculum
without “concern” for his special disability.
Per stated that he tried to use the portable speller, but realized that it was
an inadequate tool to help him overcome his very limited understanding of
language. Per described in detail why the functioning of the portable speller was
so unhelpful to him. Per would first enter into the speller what he believed was
the accurate spelling of an entire word; based on this input, the speller produces
a list of possible words. If any part of the inputted spelling were incorrect, the
list of responses from the speller would “take [him] dramatically off course.”
When using the speller, Per essentially resorted to “guess[ing]” how to spell
words, re-spelling “over and over again until [he found] what [he thought was]
the word.” Per testified that he did not use a speller at Landmark School, where
he had made significant progress, as he considered it a crutch which impeded his
learning how to spell.
Additionally, Per testified regarding a number of educational approaches
employed by KISD which enabled him to pass his courses while bypassing his
area of weakness. For instance, Per suggested that, because he was quiet,
teachers did not always notice when he did not turn in essays or homework
assignments. The use of multiple choice and fill-in-the-blanks worksheets for
class assignments obscured his difficulties with spelling, organization, and
writing. Per also “rel[ied] heavily on other people[,]” notably his parents and
brother, to assist him with take-home writing assignments. Without their help,
he surmised, he “would have failed a long time ago in English classes.”
Per further testified that he did not realize how ill-prepared he was to
enter the real world until his senior year of high school at KISD, when he began
to consider his college options. Only then did he realize that he was unable to
complete his college admissions applications without the assistance of his
parents. Until this point, he “was held under the delusion [that] all you have to
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do to get ready for college is finish high school.” He informed his ARD committee
that he felt unprepared for college because of his deficits in writing and spelling.
He was met with surprise from KISD officials. Per testified that he was never
counseled regarding post-high school transition planning.
Per’s mother, Signe Hovem, testified that she witnessed her son experience
a breakdown as he attempted to complete his college applications, “inconsolable”
because of his inability to do so. Mrs. Hovem explained her belief that KISD
officials were not motivated to address Per’s area of weakness because of his
strengths in other areas. She noted, however, that “[b]ecause he is intelligent
did not diminish the fact that he had needs.” Mrs. Hovem further testified that
she and her husband were misled as to the extent of Per’s difficulties by the good
grades he received and school administrators’ praise for his progress. Her
testimony, which was quoted by the district court in its written decision, dispel’s
KISD’s suggestion that Per and his family are aggrieved by their own unrealistic
expectations that school officials might cure his disability and maximize his
performance:
We are not asking for the most optimal maximized potential that
you keep trying to drag out of witnesses. We are asking that he can
function at a sixth grade level. We want to--We don’t even know if
he can do that, but we want to have the chance to try, just the
chance to see, to prove to ourselves.
Considering the totality of the facts before the district court and hearing
officer, it is obvious that Per’s educational plan was not individualized and not
tailored to enable him to obtain meaningful educational benefit. Alarmingly,
KISD offers no reason why the IEP of an 18-year-old student, with a 142 IQ, who
was unable to even complete a sentence within a reasonable time, was totally
unresponsive to his problem. In lieu of explanations, KISD casually asserts on
appeal, as it did without success before the district court and hearing officer,
that it did all that it was required to do for Per under the IDEA by promoting
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him toward graduation in the regular curriculum, a contention that the majority
wholly accepts. In the face of the stark gulf between Per’s academic potential,
as reflected in his high IQ score, and his inability to complete simple sentences
on an admissions form, the majority readily embraces KISD’s argument, in
support of doing effectively nothing in the face of Per’s enormous challenge, as
its own. As the facts delineated above so clearly demonstrate, KISD cannot and
did not discharge its statutory responsibility merely by offering Per a diploma
at the end of his high school career. More was required, as the district court and
hearing officer correctly held.
KISD attempts to frame the dispositive issue in this case as whether it
was obligated to “cure” Per of his disability. Were that the question before us,
the answer would clearly be no. Instead, the question we must decide is whether
KISD’s educational program was individualized to address Per’s specific needs,
tailored to provide meaningful educational benefit rather than merely trivial
advancement. Given the undisputed facts set forth above, I conclude that the
answer is no.
IV.
The policy implications of the majority’s opinion are even more troubling.
Citing Rowley, the majority reasons that educational benefit in the area of
disability is not a primary concern under the IDEA. Rather, the majority
asserts, the IDEA’s ultimate goal is the conferral of benefits by the “holistic”
educational experience. Accordingly, a school district satisfies its statutory
obligation to a disabled child by educating him in the regular classroom and
advancing him toward graduation, even if the school did not address his
disability and made no effort to do so. Thus, in the majority’s view, regular
education is necessarily a sufficient educational benefit under the IDEA,
regardless of the response, or the lack thereof, to the student’s special needs.
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There are numerous flaws with the majority’s reasoning. First is its over-
reliance on and misunderstanding of aspects of Rowley. In Rowley, the Supreme
Court ruled that, in light of the district court’s factual findings that a deaf
student was receiving an adequate education and easily advancing in grade
level, and “that [the student] was receiving personalized instruction and related
services calculated by . . . school administrators to meet her educational needs,
the lower courts should not have concluded that the Act requires the provision
of a sign-language interpreter.” 458 U.S. at 210. Accordingly, Rowley stands for
the proposition that, where courts determine that the individualized education
plans afforded to disabled children are adequate, “courts must be careful to avoid
imposing their view of preferable educational methods upon the States.” Id. at
207.
The majority disregards the nuance of the Rowley opinion, and instead
treats Rowley as a blanket permission slip for federally-funded school districts
to ignore the special needs of disabled students by affording them passing grades
and advancement in the regular classroom. Although in Rowley the Supreme
Court “considered Amy Rowley’s promotions in determining that she had been
afforded a FAPE, the Court limited its analysis to that one case and recognized
that promotions were a fallible measure of educational benefit.” Hall by Hall v.
Vance Cnty. Bd. of Educ., 774 F.2d 629, 635-36 (4th Cir. 1985) (citing Rowley,
458 U.S. at 203 n.25).
Promotion from grade to grade is less indicative of a disabled student’s
receipt of a FAPE where it appears that the student was promoted pursuant to
a school policy rather than his achievement, where good grades are traceable to
exemptions from standard expectations intended to circumvent rather than
address his area of disability, and when independent evaluations contradict the
amount of progress otherwise to be inferred from class promotion. See id. at 636
(holding that “[t]he district court did not err in discounting [the student’s]
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promotions in light of the school’s policy of social promotion and [his] test scores
and independent evaluations”); D.B. v. Bedford Cnty. Sch. Bd., 708 F. Supp. 2d
564, 584 (W.D. Va. 2010) (“Although the [hearing officer] observed that D.B. was
promoted a grade every year, [he] failed to comprehend that this token
advancement documents, at best, a sad case of social promotion.”); Nein v.
Greater Clark Cnty. Sch. Corp., 95 F. Supp. 2d 961, 977-78 (concluding that,
because dyslexic student “was graded on a modified scale and his tests and
quizzes were modified, often being read to him aloud because he was unable to
read them[,] . . . [his] promotions to the next grade level are not evidence of
educational benefit . . . .”); Smith v. Parham, 72 F. Supp. 2d 570, 576 (D. Md.
1999) (“[A]dvancement from grade to grade should not be the only factor
considered when determining whether a child is receiving an educational
benefit.”); Carl D. v. Special Sch. Dist., 21 F. Supp. 2d 1042, 1053 (E.D. Mo.
1998) (“Achievement of passing marks and advancement from grade to grade are
important- but not dispositive- factors in assessing educational benefit.”).
In this case, there is plentiful evidence that Per’s promotion in classes in
which his disability affected his performance was due in large part to the school’s
policy of excepting his full participation rather than tailoring his instruction to
address his disability. As expressed above, Per was in a posture to graduate only
upon the school’s waiver, on the basis of his disability, of the requirement that
he pass the written component of the TAKS. Moreover, the battery of tests Per
undertook as part of his application to the Landmark School provided
measurable data that he was performing significantly below grade level in areas
affected by his disability. Accordingly, Per’s passing grades and presumptive
graduation are insufficient to establish that KISD had provided him a FAPE.
Acquiescence to a disabled student’s weaknesses, even if well-meaning,
cannot obviate the requirements of the IDEA. Put otherwise, the fulfillment of
a school district’s obligations under the IDEA is not a matter of intention. It is
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entirely reasonable to assume, as the majority apparently does, that KISD’s
employees believed that they were doing Per a favor by excusing his failure to
complete written assignments legibly, timely, or even at all; by emphasizing his
many strengths when grading his performance, yet ignoring his core
weaknesses; by matriculating and promoting him through the general education
curriculum toward graduation, in spite of the fact that, though he possesses an
impressive intellect, he plainly displayed severe difficulty in producing even the
most basic forms of written communication, such as words, sentences, and
paragraphs, which average students produce with ease.
However, the IDEA requires that a disabled student’s educational plan be
“specifically designed to meet the child’s unique needs . . . .” Michael Z., 580 F.3d
at 292 (emphasis added). The program of instruction “must be likely to produce
progress, not regression or trivial educational advancement.’” Juan P., 582 F.3d
at 583 (emphasis added). Clearly, social promotion of disabled students in the
general curriculum, even if well-meaning, is inadequate to meet this mandate,
both according to our established precedents and the plain language of the
IDEA.
Moreover, the majority’s approach ignores that graduation from high
school in the regular education curriculum is not the singular purpose of the
IDEA. Rather, the IDEA plainly requires that school districts prepare disabled
students for life after high school as part of the IDEA’s remedial scheme.
Beginning not later than the first IEP to be in effect when a disabled student is
16, an IEP should include “appropriate measuarble postsecondary goals based
upon age appropriate transition assessments related to training, education,
[and] employment[,]” and “the transition services (including courses of study)
needed to assist the child in reaching those goals[.]” 20 U.S.C. §
1414(d)(1)(A)(i)(VIII)(aa)-(bb). Transition services are defined as coordinated
sets of activities “designed to be within a results-oriented process, that is focused
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No. 10-20694
on improving the academic and functional achievement of the child with a
disability to facilitate the child’s movement from school to post-school activities,
including post-secondary education . . . .” 20 U.S.C. § 1401(34)(A).
Accordingly, as a disabled student nears the end of his public school
education, transition planning becomes an integral part of the development of
his IEP. The majority’s contention that a school district does all that is required
under the IDEA merely by graduating a disabled child, without even addressing
his special needs, is belied by the statute’s emphasis on transition planning and
individualized transition services. A school district does not provide a FAPE to
a disabled child who aspires to attend college merely by placing him in regular
education classes without adequately individualizing his educational program
to address his disability and prepare him for life post-graduation.
V.
Because I would affirm the district court’s conclusion that KISD failed to
provide Per a FAPE, I would reach the issue of reimbursement for expenses
associated with Per’s education at Landmark School. The district court ordered
reimbursement for Per’s private educational expenses, with the exception of
residential expenses. For essentially the same reasons cited by the district
court, I would affirm this determination.
VI.
The approach taken by the majority undermines the rehabilitative purpose
of the IDEA by treating individualized education as an afterthought. The
majority invites school districts to forgo measured, individualized
mainstreaming of special needs students- a laudable goal under the IDEA- in
favor of social promotion of disabled students unprepared for the difficult and
sometimes harsh world that awaits them after high school graduation. In so
doing, the majority rejects our precedents requiring deferential review of the
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No. 10-20694
factual determinations of the district courts, and substitutes its own judgment
for those of both the district court and the Texas Education Agency hearing
officer. For these reasons, I respectfully dissent.
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