Washington v. Katy ISD

Case: 22-20050 Document: 00516678809 Page: 1 Date Filed: 03/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 16, 2023
No. 22-20050 Lyle W. Cayce
Clerk
Lori Washington, ex rel. J.W.; J.W.,
Plaintiffs—Appellants,
versus
Katy Independent School District,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-204
Before Jones, Smith, and Graves, Circuit Judges.
Per Curiam:*
Lori Washington is the mother of J.W., a former student of Katy In-
dependent School District (“the District”) who suffers from intellectual dis-
ability and emotional disturbance. Washington brought claims on behalf of
J.W. against the District under the Individuals with Disabilities Education
*
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opinion should not be published and is not precedent except under the limited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: 22-20050 Document: 00516678809 Page: 2 Date Filed: 03/16/2023
No. 22-20050
Act (“IDEA”), 20 U.S.C. § 1400 et seq. She appeals an adverse determina-
tion by both a state hearing officer and the district court. We AFFIRM.
I. BACKGROUND
The district court opinion below thoroughly details the facts
underlying this case. See Washington v. Katy Indep. Sch. Dist., 2022 WL
61160, *1–4 (S.D. Tex. Jan. 6, 2022). In short, J.W. transferred to the District
in August 2016, at which time the District convened an admission, review,
and dismissal (“ARD”) committee to facilitate the creation and
implementation of an individualized educational plan (“IEP”) and
behavioral improvement plan (“BIP”) for J.W.’s junior year. Washington
concedes the plan “worked well” and J.W.’s “grades were excellent.”
In November 2016, J.W. was repeatedly tased by a school resource
officer during a confrontation with District staff. Washington subsequently
withheld J.W. from school for almost the entire spring 2017 term despite the
District’s repeated attempts to provide support and accommodations. An
ARD committee was convened in May 2017 to address J.W.’s absenteeism
and adjust his individualized educational plan. J.W. attended the first session
of extended school year (“ESY”) services in summer 2017. But he again
struggled with absenteeism early in the fall 2017 term, this time caused by
displacement from Hurricane Harvey. J.W.’s attendance improved in
November and December, and he received mostly As and Bs during the
2017–18 school year. He ultimately graduated in May 2018.
In December 2017, Washington requested a special education due
process hearing with the Texas Education Agency pursuant to the IDEA. A
hearing officer determined the District did not violate J.W.’s procedural
rights and provided him a free appropriate public education (“FAPE”) as
required by the IDEA. The district court affirmed that determination,
granted summary judgment for the District, denied summary judgment for
2
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Washington, and dismissed the case with prejudice. Washington appeals that
judgment.
II. STANDARD OF REVIEW
This court reviews de novo, as a mixed question of law and fact, a dis-
trict court’s determination that a school district furnished a FAPE under the
IDEA. Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 395 (5th Cir. 2012)
(quotation marks omitted). “The district court’s findings of ‘underlying
fact’ are reviewed for clear error.” Id. (citation omitted).
III. DISCUSSION
“To meet its substantive obligation under the IDEA, a school must
offer an IEP reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cnty.
Sch. Dist., 580 U.S. 386, 399, 137 S. Ct. 988, 999 (2017). “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.” Klein Indep. Sch. Dist. v. Hovem, 690 F.3d
390, 396 (5th Cir. 2012). “Nevertheless, a school district must provide the
student with a meaningful educational benefit.” Id.To that end, the court assesses whether a student’s IEP was
“reasonably calculated to enable the student to receive educational
benefits.” Id. Four factors articulated in Cypress-Fairbanks Independent
School District v. Michael F. guide this analysis: 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.” 118 F.3d 245, 253 (5th Cir. 1997).
3
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Washington challenges the district court’s holding that the first, third,
and fourth Michael F. factors favor the District. Washington also contests
multiple factual determinations made by the district court. Those challenges
are resolved below under the relevant Michael F. factors. 1
As to the first Michael F. factor, Washington argues J.W.’s May 2017
IEP was not sufficiently individualized because it failed to address his
absenteeism. 2 The record demonstrates otherwise. The May 2017 ARD
committee discussed attendance expectations and J.W.’s expected return
date. It adjusted J.W.’s BIP in an explicit effort to address the underlying
causes of J.W.’s attendance problems, offered ESY services so that J.W.
could recoup credits he lost during the spring 2017 term, and recommended
a functional behavioral assessment or counseling evaluation to determine
what further support should be provided. Washington agreed that the
1
As a preliminary matter, Washington generally argues that the district court erred
in accepting the testimony of District staff without “objectively verifiable evidence” in
support. Testimony is not disfavored evidence, even when uncorroborated. It instead is
“the province of the district court to weigh” such evidence. R.S. v. Highland Park Indep.
Sch. Dist., 951 F.3d 319, 337 (5th Cir. 2020) (per curiam). For this reason, we afford great
deference to credibility findings made by the hearing officer and district court in IDEA
proceedings. Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d 205, 218 (5th Cir. 2019). Here,
both the hearing officer and the district court found credible the testimony of District
officials. Washington offers no evidence apart from her own uncorroborated testimony to
rebut these determinations. We thus decline Washington’s invitation to substitute our
credibility assessments for those of the hearing officer and district court.
2
Washington also claims the District violated federal, state, and district policies to
counteract J.W.’s absenteeism following the tasing incident. To the contrary, the district
court records show numerous district officials were in contact with Washington often to
explain, diagnose, and ameliorate the problem until Washington finally cooperated in
attending the May 2017 ARD meeting. Nor did the District fail to alleviate J.W.’s “school
phobia.” There is no evidence in the record that J.W. was ever diagnosed with such a
mental or psychological disability.
4
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services offered by the revised IEP were adequate. These findings reveal
J.W.’s May 2017 IEP was appropriately individualized.
As to the third Michael F. factor, Washington contends the District
failed to collaborate with her in that it refused to discuss what events
occurred prior to the tasing incident and predetermined the outcome of the
May 2017 ARD meeting. To the contrary, the District did not refuse to
discuss with Washington what led up to the tasing incident. For instance,
Assistant Principal Majewski spoke with Washington about the incident on
the day it occurred. Majewski attempted to discuss the incident with
Washington again in January 2017, but Washington ended the phone call
before Majewski could provide a full explanation. Washington met with
Principal Edwards, but she did not ask about what led up to the incident. In
fact, only during the May 2017 ARD meeting did staff decline to discuss the
incident, as they insisted that the ARD committee instead focus on
remedying the effects of the incident. They also proposed that Washington
schedule a different time to speak with staff about the incident. Moreover,
no evidence suggests the outcome of the May 2017 ARD meeting was
predetermined. Washington attended the meeting with counsel. Some of
her suggestions were incorporated into J.W.’s BIP. And she agreed with the
IEP proposed at that meeting.
Washington also argues the District failed to implement J.W.’s IEPs.
She contends the September 2016 IEP was not implemented because the
District failed to address J.W.’s absenteeism in a timely manner. “[T]he
reasonableness of a delay is not defined by its length but by the steps taken by
the district during the relevant period.” Spring Branch Indep. Sch. Dist. v.
O.W., 961 F.3d 781, 793 (5th Cir. 2020). Here, the District made multiple
attempts, both formal and informal, to transition J.W. back to school and
provide him necessary services. The District cannot be faulted for delays
caused by Washington’s lack of responsiveness and her refusal to return
5
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necessary paperwork. 3 See Renee J. v. Houston Indep. Sch. Dist., 913 F.3d 523,
532 (5th Cir. 2019).
Washington asserts the May 2017 IEP was not implemented because
J.W. missed a substantial portion of the term due to Hurricane Harvey. “[A]
party challenging the implementation of an IEP must show more than a de
minimis failure to implement all elements of that IEP, and, instead, must
demonstrate that the school board or other authorities failed to implement
substantial or significant provisions of the IEP.” Houston Indep. Sch. Dist. v.
Bobby R., 200 F.3d 341, 349 (5th Cir. 2000). Washington has not pointed to
a single provision from the May 2017 IEP that the District was unwilling to
implement had J.W. attended school. Simply put, a parent cannot agree that
the services her child is receiving are sufficient, prevent the school from
administering those services by withholding the child, hinder the school’s
ability to provide additional services by failing to file necessary paperwork,
then later sue on the basis that the school did not do enough. See Renee J.,
913 F.3d at 531–32.
As to the fourth Michael F. factor, Washington first contests the district
court’s finding that J.W. received academic and non-academic benefits.
“Whether the student obtained educational benefits from the school’s
special education services is a finding of underlying fact.” Hovem, 690 F.3d
3The district court found Washington declined to sign consent forms that would
have allowed the District to speak with J.W.’s outside health care providers. Washington
proffers circumstantial evidence as to why this finding was in error. This evidence,
however, does not demonstrate the district court clearly erred. Indeed, ample evidence
supports the district court’s finding.
The district court also found Washington declined ESY transportation and did not
return homebound services paperwork. Washington does not contest the first finding. She
instead merely quibbles with the “manner in which the [district court] characterized” the
fact. As to the second determination, Washington provides no evidence as to why this
finding was in error.
6
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at 395. J.W. attended some school days in January 2017. On the days he
attended, he was able to utilize the Positive Approach to Student Success
Program (“PASS”) room and meet with the licensed specialist in school
psychology (“LSSP”). He participated in the first term of ESY, where he
was able to make up an English credit and learn to better interact with others.
He attended class and participated in a work-based learning program,
sporadically in August, September, and October, but more consistently in
November and December. He also met with the LSSP to learn how to
manage his anger and misperception of others. J.W. received passing grades
during the 2017/2018 school year 4 and readjusted to the school setting
without significant behavioral concerns. His teachers testified that J.W.
demonstrated an ability to learn, follow directions, and engage with others;
they additionally believed he would be able to hold a job upon graduation.
And J.W. ultimately accrued enough credits to graduate. 5 In sum, the district
court did not clearly err in finding J.W. received academic and nonacademic
benefits.
Washington also contends the district court failed to apply Hovem’s
“holistic approach” when evaluating the academic and non-academic
benefits conferred by the IEPs. To the contrary, the district court reviewed
J.W.’s overall academic record as opposed to focusing “on disability
remediation.” Hovem, 690 F.3d at 398. It thus avoided the precise error
Hovem cautioned against.
4
Washington also contends J.W. could not have actually received the grades he
putatively earned because he “barely went to school in the Fall of 2017.” To the contrary,
ample evidence supports the finding that J.W. earned the grades he received.
5
Washington’s argument that the District forced J.W. into a sham graduation rings
hollow considering she agreed to reduce the credits necessary for J.W. to graduate. The
District also convened an ARD committee after J.W.’s graduation to implement a program
through which he could continue receiving services.
7
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In sum, the Michael F. factors weigh in favor of the District, thus
supporting the conclusion that J.W.’s IEPs were adequate to confer a FAPE. 6
The district court’s judgment is AFFIRMED.
6
To the extent Washington raises procedural violations, those contentions fall flat.
Washington does not show how any alleged violation “(i) impeded [J.W.’s] right to a
FAPE; (ii) significantly impeded [Washington’s] opportunity to participate in the decision-
making process regarding the provision of a FAPE to [J.W.]; or (iii) caused a deprivation of
educational benefit.” 34 C.F.R. § 300.513(a).
8