Grant v. St James Parish Sch ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31428
Summary Calendar
ELAINE F. GRANT, on behalf of herself
and her minor daughter Ashton K. Grant,
Plaintiff-Appellant,
versus
ST. JAMES PARISH SCHOOL BOARD;
LOUISIANA DEPARTMENT OF EDUCATION;
LOUISIANA STATE BOARD OF ELEMENTARY
AND SECONDARY EDUCATION,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-3757-N
--------------------
August 23, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Elaine F. Grant (Mrs. Grant), on behalf of herself and her
minor daughter Ashton K. Grant (Ashton), appeals the district
court’s grant of summary judgment for the defendants in this
action under the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §1400, et seq.; Section 504 of the
Rehabilitation Act of 1973 (§ 504), 29 U.S.C. §794; and the
Louisiana Dyslexia Law, La. R.S. 17:7(11).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-31428
-2-
When a district court reviews a state hearing officer’s
decision in a due process hearing under the IDEA, it must accord
due weight to the hearing officer’s findings, but must reach an
independent decision based on a preponderance of the evidence.
The district court’s review is essentially de novo. Houston
Indep. School Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir.),
cert. denied, 121 S. Ct. 55 (2000). This court’s review of the
district court is a mixed question of fact and law that is
reviewed de novo. The underlying fact-findings, such as a
finding that a disabled student obtained educational benefits,
are reviewed for clear error. Id.Appellant argues that the evidence is insufficient to create
an inference that St. James Parish schools provided a free,
appropriate public education (FAPE) to Ashton. She argues that
the administrative record is devoid of any documentation or
testimony showing that Ashton received Project Read, a structured
multi-sensory language program.
The evidence in the administrative record shows that Ashton
successfully progressed in the school system from grade seven to
grade 12 with mostly A’s and B’s, and passed the LEAP and GEE
tests. Her Project Read teacher testified that Ashton showed
improvement, and that she was efficient and capable to the point
where the teacher wondered why she needed the remediation. The
evidence shows that Ashton received an educational benefit and
that she received a free and appropriate education. See Bobby
R., 200 F.3d at 345-50. There is no evidence that Ashton was
denied access to an educational program or that the school
No. 00-31428
-3-
district refused to provide reasonable accommodations for Ashton
to receive the full benefits of the school program under § 504.
Marvin H. v. Austin Indep. School Dist., 714 F.2d 1348, 1356 (5th
Cir. 1983).
Appellant argues that the district court failed to fully
appreciate the manner in which Louisiana's Dyslexia Law
incorporates both the IDEA and Section 504. She argues that
Louisiana's Dyslexia Law synthesizes the IDEA and § 504 and that
the IDEA's definition of special education and the requirements
of Bulletin 1903, and the regulations implementing the Louisiana
Dyslexia Law, result in a dyslexic student falling under the
protections of the IDEA. Appellant cites no law to support this
argument.
Pamela Zeringue, the director of special education services,
explained that special education is a step further than § 504 and
that no one, not Mrs. Grant, nor the 1903 Committee, nor any of
Ashton’s teachers had ever made a request to evaluate Ashton
under the IDEA for special education services. She further
testified that Ashton’s school records did not indicate that such
a request should have been made for her. Dr. Greene’s report did
not recommend special education services but mentioned only § 504
and Bulletin 1903 and interventions within the regular education
setting.
Louisiana law does not require evaluation for special
education services under the IDEA unless specifically requested.
Salley v. St. Tammany Parish School Bd., 57 F.3d 458, 464 (5th
Cir. 1995). The fact that Ashton was diagnosed with dyslexia is
No. 00-31428
-4-
not sufficient in itself to qualify her under the IDEA. Her
impairment must have been deemed sufficiently serious to
necessitate special education services. 20 U.S.C.
§ 1401(3)(A)(ii). Appellant has not shown that a request for
evaluation under the IDEA was ever made or should have been made.
She has cited no authority for her argument that she was
automatically qualified by reason of her diagnosis with dyslexia.
Appellant argues that the district court failed to recognize
the legal gravity of the state’s failure to meet the procedural
requirements of the IDEA, Louisiana's Educational
Opportunities for Children with Exceptionalities Act, and
Section 504 of the Rehabilitation Act of 1973. She contends that
the State Level Review Panel’s failure to render a decision in
this matter for "lack of jurisdiction" was a flagrant violation
of the procedural safeguards guaranteed therein.
Appellant does not deny that she was afforded a due process
hearing and review by the state level review panel as required
under Bulletin 1706. Ashton was afforded the processes required
by the state pursuant to § 1415 of the IDEA and the Regulations
for Implementation of the Exceptional Children’s Act, Bulletin
1706, of the Louisiana Department of Education, which implements
administrative review procedures in Louisiana. Ashton received a
due process hearing and a state level review panel decision and
was able to bring her suit in federal court seeking review of the
state agency’s decision. No further process is due.
Appellant argues that the district court failed to
appreciate the gravity of a student suffering from a mild to
No. 00-31428
-5-
moderate degree of dyslexia. She contends that she was five
grades behind in her reading ability due to her dyslexia, and
that St. James Parish Schools has never offered any evidence to
refute her sixth grade reading level. She contends that her
degree of dyslexia is an impairment that substantially limits a
major life activity, and that therefore, the district court erred
in assessing her degree of impairment.
Appellant does not explain exactly how this alleged failure
affects the district court’s ultimate determination. The
defendants were not required to maximize her educational
potential. Bobby R., 200 F.3d at 350. The inquiry is whether
she has received an educational benefit. Id. at 346-47.
Although Dr. Hoppe’s testing showed that Ashton read at a sixth
grade level, he could not and did not deny that she progressed to
a high school level in spelling and post high school in math;
that she had above average grades and had passed all the
objective measures of performance required to advance and
graduate in Louisiana; that she had improved in most areas since
1994; and that she had the potential to go to college. The
district court’s decision was based on Ashton’s educational
achievements and not on any characterization of the degree of her
disability.
AFFIRMED.