William v. v. Copperas Cove Indep Sch Dist ( 2020 )

Case: 19-51046 Document: 00515563569 Page: 1 Date Filed: 09/14/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 14, 2020
No. 19-51046 Lyle W. Cayce
Clerk
William V., as parent / guardian / next friend of W.V., a minor individual
with a disability; Jenny V., as parent / guardian / next friend of W.V., a
minor individual with a disability,
Plaintiffs—Appellants,
versus
Copperas Cove Independent School District,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:17-CV-201
Before Smith, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Appellants contend that Appellee Copperas Cove Independent
School District (the “District”) violated the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1401 et seq., with respect to the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-51046 Document: 00515563569 Page: 2 Date Filed: 09/14/2020
No. 19-51046
educational services it provided their child, W.V. The district court granted
the District’s summary judgment motion. We affirm.
I.
W.V. was a student in the District with dyslexia and speech
difficulties. When he entered the District in first grade, the District
continued to implement a program W.V.’s previous school had developed to
treat his speech impairment. W.V. was not considered to have a “Specific
Learning Disability” (“SLD”), which would have required the District to
provide additional services. See 20 U.S.C. § 1401(3)(A)(i) (providing a child
is eligible for certain IDEA services if he has, inter alia, “specific learning
disabilities”). During first grade, W.V.’s mother asked the District to
evaluate him for an SLD. The District declined to do so, but it did test, and
eventually treat, W.V. for dyslexia. The following school year, the District
began providing W.V. assistance under the “Wilson Reading System.” But
later that fall, after reviewing W.V.’s performance in speech, reading, and
cognitive capability, the District found that W.V. was no longer eligible for
speech therapy and that his reading scores showed improvement consistent
with his dyslexia counseling.
After exhausting appropriate state administrative remedies, see Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 204–05
(1982), W.V.’s parents sued the District, alleging it violated the IDEA by
delaying W.V.’s SLD assessment; concluding W.V. did not have an SLD or
a speech and language impairment; failing to evaluate whether W.V. required
“assistive technology”; and employing the Wilson Reading Program, which,
they alleged, “did not demonstrate positive results” and “was not research-
based.” The parties cross-moved for summary judgment.
The district court granted summary judgment to the District,
adopting in part the magistrate judge’s report and recommendation. The
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court held that the District “violated the IDEA by finding W.V. did not
qualify as a student with an SLD.” But the court concluded the violation was
only “procedural” and did not deprive W.V. of a Free Appropriate Public
Education (“FAPE”) because his SLD status “did not result in the loss of
[his] educational opportunities.” The parents appealed, and we reversed and
remanded, asking the district court to assess under the proper standard
whether W.V. qualified as a “child with a disability.” William V. v. Copperas
Cove Indep. Sch. Dist., 774 F. App’x 253, 254 (5th Cir. 2019). In particular,
we asked the court to consider whether W.V. “need[ed] special education
and related services,” a necessary condition for IDEA coverage. Id. at 253
(quoting 34 C.F.R. § 300.8(a)(1)).
On remand, the district court followed our instructions and held W.V.
needed special education services, thus qualifying as a “child with a
disability.” As it did previously, the court then found the District had
procedurally violated the IDEA by finding W.V. had no SLD, but that this
did not cause W.V. “a legally cognizable injury.” 1 According to the court,
the District’s erroneous SLD determination did not harm W.V. because “the
District continued providing W.V. with the same . . . services” and “kept
W.V.’s [individualized educational program or ‘IEP’] in place months after”
it had determined he no longer had a SLD. Additionally, the court applied
our four Michael F. factors, see Cypress-Fairbanks Indep. Sch. Dist. v. Michael
F., 118 F.3d 245, 253 (5th Cir. 1997), 2 to determine whether the District had
1
The court also reiterated it had “accept[ed] and adopt[ed] the [magistrate’s]
Report and Recommendation in its entirety except as to” the SLD analysis.
2
The factors ask 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.
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provided W.V. with a FAPE, concluding that the District’s treatment of
W.V. (1) was individualized, (2) was administered in “the least restrictive
environment,” (3) was “effectuated in a coordinated and collaborative
manner by key stakeholders,” and (4) “demonstrated positive academic and
non-academic results.” The court therefore again granted summary
judgment to the District. A timely appeal followed.
II.
We review the district court’s fact findings for clear error and defer to
those findings unless we have “a definite and firm conviction that a mistake
has been committed.” Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 395 (5th
Cir. 2012) (quoting Hous. Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d
576, 583 (5th Cir. 2009)). We review legal conclusions, including the ultimate
liability conclusion, de novo. Id. (citing Teague Indep. Sch. Dist. v. Todd L., 999
F.2d 127, 131 (5th Cir. 1993)). But factual conclusions, such as “[w]hether
the student obtained educational benefits from the school’s special education
services,” are reviewed for clear error. Id. (citing Teague, 999 F.2d at 131);
accord A.A. v. Northside Indep. Sch. Dist., 951 F.3d 678, 684 (5th Cir. 2020)
(citation omitted)). The party attacking a school district’s decisionmaking
“bears the burden of demonstrating its non-compliance with IDEA.” Hovem,
690 F.3d at 395 (citing Teague, 999 F.2d at 131).
III.
Federally funded school districts must follow the IDEA’s
“substantive and procedural requirements,” including the basic obligation of
providing a FAPE for all disabled children. William V., 774 F. App’x at 253
(citing Honig v. Doe, 484 U.S. 305, 310 (1988)); see generally Endrew F. v.
Douglas Cty. Sch. Dist., 137 S. Ct. 988, 993–94 (2017). The IDEA’s core
substantive requirement is that schools design and adhere to an IEP for each
disabled student. Honig, 484 U.S. at 311. “The IEP is the means by which
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special education and related services are ‘tailored to the unique needs’ of a
particular child.” Endrew F., 137 S. Ct. at 994 (quoting Rowley, 458 U.S. at
181). In addition, the IDEA “establishes various procedural safeguards that
guarantee parents both an opportunity for meaningful input into all decisions
affecting their child’s education and the right to seek review of any decisions
they think inappropriate.” Honig, 484 U.S. at 311–12. But procedural
violations of the IDEA “alone do not constitute a violation of the right to a
FAPE unless they result in the loss of an educational opportunity.” Hovem,
690 F.3d at 396 (citation omitted).
To satisfy the IDEA, a school need not provide the best possible
education or even “one that will maximize the child’s educational potential.”
Michael F., 118 F.3d at 247 (citation omitted). It must provide only “an
education that is specifically designed to meet the child’s unique needs,
supported by services that will permit him ‘to benefit’ from the instruction.”
Id. at 247–48 (quoting Rowley, 458 U.S. at 188–89). “In other words, the
IDEA guarantees only a ‘basic floor of opportunity’ for every disabled child,
consisting of ‘specialized instruction and related services which are
individually designed to provide educational benefit.’” Id. at 248 (quoting
Rowley, 458 U.S. at 201). But an IEP must be designed to achieve
“meaningful,” not “de minimis,” progress. Id. (citations omitted); see also
Endrew F., 137 S. Ct. at 1001 (the IDEA “requires an educational program
reasonably calculated to enable a child to make progress appropriate in light
of the child’s circumstances”).
A.
Appellants argue the district court erred when it found the District’s
failure to classify W.V. as having an SLD did not deny him educational
opportunities. Specifically, they contend the district court (1) failed to give
adequate weight to W.V.’s lack of progress under his IEP, (2) failed to find
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the District did not use research-based methods, and (3) misapplied the four
Michael F. factors. We address each argument in turn.
1.
Appellants contend the district court failed to “conduct[] its own
analysis to consider W.V.[’]s regression and lack of progress.” They claim
the court relied too heavily on W.V.’s grades and reading level assessments.
They also argue W.V.’s scores on standardized tests were “stagnant and far
below grade level.”
Appellants fail to show reversible error. The district court and the
magistrate judge, whose report and recommendation the court adopted in
relevant part, addressed W.V.’s grades and standardized tests at great length,
rejecting the same arguments Appellants now raise on appeal. For example,
the magistrate rejected the argument concerning W.V.’s failure to meet
grade-level standards on standardized tests, finding that these measures
“compare[d] W.V. to his peers and [did] not address standards particular to
W.V.’s personal improvements or regression.” The magistrate instead
identified meaningful development in W.V.’s progress reports, relying on
these to conclude he had made more than de minimis progress under his IEP.
The district court adopted these findings and, based on extensive evidence of
progress in speech and reading skills, found the District had complied with
the IDEA. Appellants’ briefing in our court largely repeats their arguments
in the district court and scarcely acknowledges the district court’s (and the
magistrate’s) reasoning. For example, the magistrate and district court both
relied heavily on Houston Independent School District v. Bobby R., in which we
emphasized that under the IDEA, a student’s development must be
measured with respect to him, not other students. 200 F.3d 341 (5th Cir.
2000). On appeal, Appellants do not address Bobby R. or provide any
argument that the district court erred in its application of our precedent. Nor
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do they show clear error in the district court’s findings that “W.V. was
continuously progressing in the general education setting” in areas such as
reading, writing, and math.
Moreover, while the district court’s ultimate conclusion that the
District complied with the IDEA is reviewed de novo, we review underlying
factual conclusions only for clear error. Hovem, 690 F.3d at 395 (citation
omitted). The magistrate and the district court thoroughly addressed each of
the arguments Appellants now raise and weighed evidence of W.V.’s
progress accordingly. We cannot upend the district court’s conclusions
merely because Appellants believe it should have weighed the evidence
differently. Based on Appellants’ arguments and our own review of the
record, we lack “a definite and firm conviction that a mistake has been
committed.” Id. (citation omitted).
2.
The same is true of Appellants’ second argument, that the district
court ignored their contention that the District failed to employ “research-
based” programs. Appellants contended that the Wilson Reading System
was not research-based and that, in any case, “research does not support its
use for children, such as W.V., with severe dyslexia.” The district court
rejected both arguments. For instance, the court found that the Wilson
program, to which W.V.’s parents had consented, was “a structured,
research-based program that comports with the Texas Dyslexia Handbook.”
The court also cited ample evidence of W.V.’s improvement under the
Wilson program in terms of, for example, conversational speech accuracy and
reading comprehension. Appellants fail to address this analysis. Moreover,
the district court expressly rejected expert testimony that the Wilson
program was inadequate for W.V.’s needs because the testimony
contradicted the evidence of W.V.’s improvement. Appellants rely on that
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same testimony on appeal without explaining why the district court clearly
erred in rejecting it. Accordingly, Appellants have again failed to show clear
error.
3.
Finally, Appellants contend the district court misapplied three of the
four Michael F. factors. See supra n.1. They admit they failed to “directly
address” the first factor before the district court—namely, whether W.V.’s
program was individualized. Their argument as to that factor is forfeited.
Rittinger v. Healthy All. Life Ins. Co., 914 F.3d 952, 955 (5th Cir. 2019)
(citation omitted). They also fail to develop an independent argument as to
the fourth factor—whether W.V. benefited from his IEP—referring only to
their previous argument regarding W.V.’s academic progress, which the
District, the Special Education Hearing Officer (“SEHO”), the magistrate,
the district court, and now this panel have all rejected. As to the third
factor—whether the IEP was effectuated in a “collaborative manner”—
Appellants show no clear error in the district court’s conclusion that they
were involved extensively in forming and executing W.V.’s IEP. The record
reflects, for example, that Appellants were invited to and participated in
several meetings to discuss W.V.’s IEP and that the District regularly kept
them apprised of his progress. We therefore find no reversible error in the
district court’s application of the Michael F. factors.
B.
We next address Appellants’ contention that the district court erred
by failing to treat three other District actions as procedural IDEA violations.
Namely, they argue that the court failed to address (1) whether the District
unduly delayed W.V.’s Full and Individual Evaluation (or “FIE”), see 20
U.S.C. § 1414(a)(1)(A); (2) whether W.V. had a speech impairment, and (3)
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whether the District improperly failed to evaluate whether W.V. needed
assistive technology.
Yet again, Appellants’ briefing merely reiterates the same arguments
made before the district court and attacks the court’s fact findings without
demonstrating clear error. For example, they claim the district court
“without discussion” rejected their argument that the District unduly
delayed W.V.’s FIE. This is incorrect. The magistrate devoted several pages
to the issue, concluding that “the record demonstrates a logical chain of
progression from W.V.’s first day in the District to his FIE testing a year
later.” The magistrate concluded that the District adopted a previous
school’s IEP and that the District had ample evidence that “W.V. appeared
to be progressing.” And the magistrate similarly rejected Appellants’
argument that the District should have suspected a need for special education
“in September 2015, the month W.V. entered the District.” Appellants fail
to identify clear error in these fact-bound conclusions.
Appellants’ second argument, that the district court failed to address
whether W.V. had a speech and language impairment, similarly ignores
detailed fact findings. For example, Appellants repeat the argument that the
District revoked W.V.’s impairment status based solely on a five-minute
assessment. The magistrate addressed this contention at length, finding the
District’s speech pathologist worked with W.V. five times per week, for
thirty minutes per meeting, per six-week grading period. Furthermore, the
magistrate made extensive findings regarding the speech pathologist’s
qualifications and interactions with W.V., none of which Appellants address
on appeal.
The same is true for Appellants’ final argument, that the district court
“fail[ed] to address the argument that” the District should have evaluated
W.V. for assistive technology. That is incorrect. The magistrate’s report and
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recommendation analyzed this argument extensively, concluding that
Appellants “fail[ed]” the first prong of the relevant analysis “by disregarding
. . . entirely” their burden to prove that W.V. needed assistive technology for
his FAPE. See 34 C.F.R. § 300.105. Appellants fail to show reversible error
as to this conclusion. 3
AFFIRMED.
3
Because we conclude the district court did not reversibly err in holding that the
District evaluated W.V. properly, we need not address Appellants’ argument that the
District should have reimbursed them for private evaluations.
10