Spring Branch Indep Sch Dist v. O.W.

Case: 18-20274 Document: 00515451413 Page: 1 Date Filed: 06/12/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20274 June 12, 2020
Lyle W. Cayce
SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Clerk
Plaintiff - Appellant
v.
O.W., by next friend Hannah W.,
Defendant - Appellee
*******************************************************
HANNAH W., as Parent/Guardians/Next Friends of O.W., an Individual with
a Disability; DANIEL W., as Parents/Guardians/Next Friends of O.W., an
Individual with a Disability; O.W.,
Plaintiffs - Appellees
v.
SPRING BRANCH INDEPENDENT SCHOOL DISTRICT,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
ON PETITION FOR REHEARING
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Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District
Judge.*
DEBRA M. BROWN, District Judge:
Upon panel rehearing, we withdraw our prior opinion, Spring Branch
Indep. Sch. Dist. v. O.W., 938 F.3d 695 (5th Cir. 2019), and substitute the
following:
After years of private schooling, O.W., a minor, enrolled in the fifth grade
in the Spring Branch Independent School District for the 2014–2015 academic
year. From his first day of school, O.W. struggled behaviorally and, despite
having a history of mental illness, was not referred for a special education
evaluation until January of 2015. Following transfers to two different
programs, O.W.’s behavioral problems continued. Ultimately, O.W. was
withdrawn from school with three days remaining in the academic year. An
administrative hearing officer found the School District violated the
Individuals with Disabilities Education Act and awarded O.W. two years of
private school tuition. The district court affirmed the award and the School
District appealed. We AFFIRM in part, REVERSE in part, and REMAND.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural record in this case is extensive but largely
undisputed. 1
A. O.W.’s Early Education
During the summer of 2009, Hannah W. and Daniel W. registered O.W.,
* District Judge of the Northern District of Mississippi, sitting by designation.
1 The amicus brief of Disability Rights Texas cites evidence outside the appellate
record to establish that “[s]chool districts throughout Texas have intentionally disregarded
their Child Find duties.” This Court ordinarily does not consider evidence outside the record
on appeal, McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir. 2008), and will not do so here.
2
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their minor son, for kindergarten at Nottingham Elementary in the Spring
Branch Independent School District. Although O.W. possessed a well-above
average intelligence, 2 he experienced various behavioral problems at
Nottingham, including aggression towards other children.
After O.W. completed his kindergarten year, his parents enrolled him at
Rainard, a private school. O.W. attended Rainard as a first grader (the 2010–
2011 academic year) and a second grader (the 2011–2012 academic year).
Following a self-harm attempt during his second grade year, O.W.’s parents
moved him to The New School in the Heights, a private school for children with
social-emotional challenges. O.W. attended The New School for third grade
(the 2012–2013 academic year) and fourth grade (the 2013–2014 academic
year). O.W. exhibited behavioral problems at The New School but finished the
fourth grade with passing scores.
B. Return to Nottingham
In the summer of 2014, O.W.’s parents registered O.W. for the fifth grade
(the 2014–2015 academic year) at Nottingham. Before the start of the term,
Ms. W. provided Nottingham officials with an August 7, 2014, letter from Dr.
Robbi Wright, who had served as O.W.’s psychiatrist since the end of 2012. The
letter stated that O.W. suffered from attention deficit hyperactivity disorder
and would thus benefit from § 504 3 accommodations. Ms. W. also spoke with
O.W.’s teacher “to provide a little background” about O.W.
On the first day of school, teachers discovered violent images of murder
2 O.W.’s IQ was most recently measured in the “superior” range.
3 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), “broadly prohibit[s]
discrimination against disabled persons in federally assisted programs or activities.” D.A. ex
rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010). The provision
differs from the IDEA in that the “IDEA guarantees individually tailored educational services
for children with disabilities, while Title II [of the Americans with Disabilities Act] and § 504
promise non-discriminatory access to public institutions.” Fry v. Napoleon Cmty. Schs., 137
S. Ct. 743, 756 (2017).
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and death drawn by O.W, which also included anti-Semitic language and
imagery, as well as obscenities. That day, Ms. W. conferenced with
Nottingham’s principal regarding the images.
The next day, O.W. held up his middle finger, used obscenities, and
refused to follow directions. When administrators came to the classroom to
assist the teacher, O.W., who was sitting on a bookshelf and refusing to come
down, hurled insults laced with pejorative, vulgar, and racist terms. He then
moved on from hurling words to hurling objects, throwing writing utensils at
the assistant principal.
Over the next few days, Ms. W. spoke often with Nottingham’s principal
and assistant principal, during which she informed them that O.W. transferred
from a therapeutic school, that he had difficulty with transitions, and that he
suffered from Oppositional Defiant Disorder, Mood Disorder, Anxiety, and
Depression.
Ms. W. also provided the school with contact information for Dr. Powell-
Williams, a counselor from The New School who had provided daily counseling
to O.W. Dr. Powell-Williams spoke with school staff and offered strategies to
manage O.W. Also, district officials collaborated with O.W.’s parents and
worked with O.W. “to find out what could be used as incentives to get him to
complete his work.” Despite these efforts, O.W. continued to act out by
regularly engaging in acts of verbal and physical aggression, including using
extreme profanity and throwing objects at the teacher; refusing to follow
directions; leaving assigned areas, including the classroom, without
permission; disrupting lessons by pushing keys on the teacher’s laptop, playing
with the ActivBoard, and yelling profanities from the back of the classroom;
sleeping excessively in class; insulting fellow students; and touching or taking
others’ property. By early October of 2014, O.W. was interrupting classes daily.
On September 16, 2014, Nottingham provided Ms. W. a § 504 “Notice of
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Rights” and notice of a § 504 eligibility meeting to be held October 1, 2014. At
approximately the same time, Ms. W. signed a “Notice and Consent for Initial
Section 504 Evaluation,” consenting to an evaluation of O.W. to determine
whether he qualified for § 504 accommodations.
On September 23, 2014, Ms. W. provided a Family History Form to the
School District which included a history of O.W.’s behavioral problems and a
list of his medications. Ms. W. also provided the School District with a May
2012 evaluation of O.W. performed by Dr. Susan Rosin. Dr. Powell-Williams
called the principal and discussed the possibility of a special education
evaluation of O.W. Ultimately, the School District postponed the October 1
meeting until October 8, 2014, apparently to allow the School District’s
Licensed Specialist in School Psychology (LSSP) to review Dr. Rosin’s
evaluation.
At the October 8 meeting, the School District determined that O.W., who
was removed from class on a daily basis due to his disruptive behavior,
qualified for § 504 accommodations. To this end, O.W.’s parents and
administration officials agreed to a behavior intervention plan (BIP), which
appears to have been put in place. 4 The plan utilized “Success Charts” which
tracked O.W.’s problematic behaviors at thirty-minute intervals and provided
rewards for good behavior. Notes from the meeting reflect O.W. was “at Level
2 intervention [methods but] may need to go to Tier 3.”
The BIP’s implementation had a minimal impact on O.W.’s behavior. The
frequency of his misconduct “diminish[ed]” for a short time—O.W. was only
disciplined once from October 8 until November 4 after being disciplined eight
4 Ms. W. testified at the administrative hearing that during the meeting, she
requested a special education evaluation for O.W. but the LSSP in attendance stated the
evaluation was unnecessary. An administration official at the meeting testified she did not
recall the request. Notes from the meeting do not include the request. However, both the
hearing officer and the district court determined the request was made.
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times from August 26 through October 6. However, O.W. was disciplined three
times in November, including for a “major disru[ption]” related to him climbing
the walls of the gym. In addition to these documented incidents of discipline,
O.W. twice fell asleep in class during the month of November. Furthermore, by
the end of the semester, his grades had dropped.
On January 9, 2015, O.W. hit a staff member in the back with a jacket.
Shortly after, O.W. assaulted his fifth-grade teacher, “kicking her and hitting
her with a closed fist.” The second of these incidents resulted in the teacher
bringing charges against O.W.
On January 15, 2015, the School District convened a second § 504
meeting. At the meeting, the School District informed O.W.’s parents that O.W.
would be referred for a special education evaluation and that during the
evaluation O.W. could either remain a student at Nottingham with a new
teacher and a personal aide, or enroll at the School District’s Turnaround
Opportunities through Active Learning (TOTAL) program. O.W.’s parents
agreed to enroll O.W. in TOTAL.
C. Development of IEP
While enrolled in TOTAL, O.W. was assigned a multidisciplinary team
which included an LSSP, an educational diagnostician, and a speech-language
pathologist. Following a brief delay to consider a February 2015 private report
provided by O.W.’s parents, the team completed a Full Individual Evaluation
(FIE) on February 24, 2015. Although a private report provided by O.W.’s
parents diagnosed O.W. with autism, 5 the evaluation team rejected the
diagnosis. The team determined O.W. was a “student with poor emotional and
5 Following the October 8, 2014, meeting, O.W.’s parents paid for a private
Independent Educational Evaluation which was performed in December 2014. The resulting
report, which was produced in February 2015, diagnosed O.W. with Autism Spectrum
Disorder.
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behavioral regulation” who suffers from an Emotional Disturbance.
On March 11, 2015, an Admission, Review and Dismissal Committee
(ARDC) 6 convened to consider the FIE and develop an IEP for O.W. Based on
a Functional Behavior Assessment and consultation with O.W.’s parents, the
ARDC developed a BIP. As explained by the district court, the BIP:
focused on using positive behavioral approaches. For physical
aggression (e.g., throwing objects, hitting, kicking, destroying
school property), staff were to help O.W. learn replacement
behaviors (e.g., removing himself to a cooling-off area,
implementing deep breathing, calming sequences, stop and think).
Additionally, staff were to avoid power struggles and arguments,
and instead offer choices, frequent/movement breaks, and access
to preferred activities. For verbal aggression (e.g., threats,
profanity, obscene gestures, name calling), staff were to teach O.W.
alterative phrases, avoid power struggles, allow
frequent/movement breaks, provide access to preferred activities
and a cooling-off area, and provide direct instruction on ways to
verbalize discontent. Again, staff were to use calm interaction
styles and minimize verbal interactions. For the behavioral
problem of leaving the classroom, staff were to offer a visual
schedule, clear rules, offer choices, frequent/movement breaks,
provide access to preferred activities or a cooling-off area, and
reinforce desired behaviors. Again, staff were to use a calm
interaction style and redirect O.W. back to assigned areas, and
remind him of his ability to access the cooling-off area. The IEP
does not state that time-outs or restraints would be used as a tactic
to address any of the above conduct.
The ARDC and O.W.’s parents also agreed to enroll O.W. in an “adaptive
behavior program” located at Ridgecrest Elementary School. O.W. enrolled at
Ridgecrest on March 23, 2015. While at Ridgecrest, O.W. maintained passing
grades in all his classes and passed all portions of the State of Texas
6 Under Texas law, each district must establish an ARDC “for each eligible student
with a disability and for each student for whom a full individual and initial evaluation is
conducted . . . .” 19 Tex. Admin. Code § 89.1050. “The ARD committee is the individualized
education program (IEP) team defined in federal law and regulations . . . .” Id.
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Assessments of Academic Readiness.
D. Implementation of IEP
At Ridgecrest, when O.W. engaged in inappropriate conduct (known as
“target behavior”), he was provided a “redirection,” then a warning, then two
warnings, and then directed to a desk (take-desk) in the classroom for a five
minute period (Take 5) or a ten minute period (Take 10). During these periods,
O.W. was given the opportunity to pursue replacement behavior, such as
drawing. Disciplinary records show O.W. was placed in a Take 5 or Take 10 on
sixteen of his forty days at Ridgecrest.
In addition to the take-discipline, O.W. was physically restrained on
eight occasions. Each instance of restraint was preceded by physical aggression
by O.W. and attempts at de-escalation by Ridgecrest staff. On at least four
occasions, Ridgecrest summoned police as a result of O.W.’s behavior.
However, because O.W. often calmed down before the police arrived, it appears
the police spoke with O.W. only once.
On May 5, 2015, police were summoned to O.W.’s classroom after
teachers attempted de-escalation (providing choices of alternative activities,
verbal redirection, calming techniques, and reduced verbal interaction); O.W.
repeatedly struck his teacher with a closed fist and then charged at her; and
the teachers restrained O.W. Upon entering the classroom, the officer “stated
to [O.W.] who was in charge, and [then] asked if he wanted to go to jail.” The
officer also asked if O.W. “remembered why he was in a cop car last time.”
After the interaction with police, O.W. “picked his ears until they were bloody
and oozing,” “chewed his shirt,” and was unable to sleep or shower by himself.
The day after the police intervention occurred, Ridgecrest faculty and
Ms. W., without consultation with O.W.’s ARDC, agreed in writing that O.W.’s
school day should begin at 9 a.m. instead of the normal 7:30 a.m. On May 18,
2015, school officials and Ms. W. agreed that O.W.’s school day should be
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shortened to three hours, from 9 a.m. until noon. The e-mail memorializing
this agreement states, “this means a brief ARD [but] that he will begin the
schedule tomorrow.” Ultimately, at the suggestion of Dr. Powell-Williams,
O.W. left Ridgecrest with three days left in the school year.
E. Fusion Academy and Administrative Proceedings
The following summer, O.W.’s parents enrolled him for tutoring at
Fusion Academy, a private institution. Because O.W.’s parents and teachers
noticed an improvement in O.W.’s behavior and performance, O.W.’s parents
elected to enroll O.W. at Fusion for the 2015–2016 academic year. On August
14, 2015, less than ten days before the beginning of the School District’s school
year, O.W.’s parents informed the School District that O.W. would not be re-
enrolling.
O.W. attended Fusion for the 2015–2016 academic year. However, on
February 16, 2017, O.W. set fire to a school trash can. Due to this incident O.W.
was removed from school and O.W.’s parents were informed he would not be
allowed to return until he received “intervention.” Following his removal, the
W.’s enrolled O.W. at Little Keswick, a residential school in Virginia.
O.W.’s parents filed an administrative complaint against the School
District on October 28, 2015. The complaint sought reimbursement for private
school tuition, private placement, and other equitable relief. On February 23,
2016, O.W.’s parents filed an amended administrative complaint. 7 The parties
appeared for an administrative hearing on May 24, 2016.
On August 5, 2016, the hearing officer issued a decision in O.W.’s favor
on four issues, finding that (1) the School District violated its child find
obligation because it did not timely refer O.W. for a special education
7 The amendment added three allegations not contained in the original complaint
related to alleged failures to convene ARDC meetings, and a failure to provide a FAPE for
the 2014–2015 academic year and beyond.
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evaluation; (2) the School District failed to provide O.W. a free appropriate
public education (FAPE) for the 2014–2015 academic year because it did not
timely fulfill its child find duties, because it violated his IEP by placing him in
school for only three hours a day, and because O.W., who was gifted and
talented, was failing math; (3) the reduction of hours in May 2015 deprived
O.W. of a commensurate school day; and (4) the School District failed to
implement O.W.’s IEP because it used restraints, time-outs, and police
intervention, and reduced O.W.’s school hours.
Based on these findings, the hearing officer determined that O.W. was
entitled to reimbursement from the School District for $50,250 in tuition and
tutoring for O.W.’s enrollment at Fusion for the 2015–2016 academic year, and
that O.W. was entitled to a compensatory education award of tuition for Fusion
for the 2016–2017 school year.
F. District Court Proceedings
On August 30, 2016, the School District appealed the administrative
decision to the United States District Court for the Southern District of Texas.
The administrative appeal was consolidated with a separate fee petition filed
by O.W.’s parents which seeks attorney’s fees for the underlying
administrative action.
The parties filed cross motions for summary judgment on the hearing
officer’s decision. Additionally, the W.’s sought an order that the School District
pay $125,000 for O.W.’s tuition at Little Keswick as a “stay put” 8 remedy. The
district court denied the request for “stay put” relief, finding that a “newly
articulated program proposed by” the School District which would provide
8 The IDEA’s “stay put” provision provides that “during the pendency of any
proceedings conducted pursuant to this section, unless the State or local educational agency
and the parents otherwise agree, the child shall remain in the then-current educational
placement of the child . . . .” 20 U.S.C. § 1415(j).
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O.W. one-on-one instruction “is the appropriate stay-put placement during the
pendency of this appeal given O.W.[’s] inability to continue attending Fusion
Academy.”
On March 29, 2018, the district court granted the W.’s summary
judgment motion, affirmed the hearing officer’s decision, and denied the School
District’s motion for summary judgment. This appeal followed. During the
pendency of the appeal, two amicus briefs were filed—one by the Council of
Parent Attorneys and one by Disability Rights Texas. Both briefs support the
district court’s decision.
II. STANDARD OF REVIEW
“[F]or appeals in IDEA actions, [the] standard of review for . . . summary
judgments is obviously more expansive than the usual de novo review for
summary judgments . . . prescribed by Federal Rule of Civil Procedure 56(a).”
E.R. ex rel. E.R. v. Spring Branch Indep. Sch. Dist., 909 F.3d 754, 762 (5th Cir.
2018). We “review[] legal questions de novo and factual questions for clear
error.” Dallas Indep. Sch. Dist. v. Woody, 865 F.3d 303, 309 (5th Cir. 2017).
“Mixed questions should be reviewed under the clearly erroneous standard if
factual questions predominate, and de novo if the legal questions
predominate.” Seth B. ex rel. Donald B. v. Orleans Par. Sch. Bd., 810 F.3d 961,
967 (5th Cir. 2016) (quoting Beech v. Hercules Drilling Co., 691 F.3d 566, 569
(5th Cir. 2012)).
Of relevance here, determinations of whether a school district failed to
provide a FAPE or failed to comply with its child find duty in a timely manner
are mixed questions which we review de novo. Krawietz ex rel. Parker v.
Galveston Indep. Sch. Dist., 900 F.3d 673, 676 (5th Cir. 2018) (child find
decision reviewed de novo); Woody, 865 F.3d at 309 (FAPE decision reviewed
de novo). The underlying factual determinations are reviewed for clear error.
Krawietz, 900 F.3d at 676; Woody, 865 F.3d at 309.
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III. DISCUSSION
On appeal, the School District challenges the district court’s conclusions
that (1) the School District breached its child find duty with regard to O.W.; (2)
the School District failed to fully implement O.W.’s IEP; and (3) two years of
private placement tuition was an appropriate remedy for O.W.
A. Child Find
Pursuant to the IDEA’s child find requirement, a state receiving federal
funds must maintain policies and procedures to ensure, among other things,
that “[a]ll children with disabilities . . . who are in need of special education
and related services, are identified, located, and evaluated . . . .” 20 U.S.C. §
1412(a)(3). While the statute’s implementing regulations define “how quickly
a school district must act after consent for an evaluation is received, . . . neither
the statute nor regulations seek to set a time between notice of a qualifying
disability and referring the student for an evaluation . . . .” Woody, 865 F.3d at
319. This Court, however, has inferred a “reasonable-time standard” into the
provision. Id. at 320. Thus, a school district must “identify, locate, and evaluate
students with suspected disabilities within a reasonable time after the school
district is on notice of facts or behavior likely to indicate a disability.” Krawietz,
900 F.3d at 676 (internal quotation marks and citation omitted).
Here, the hearing officer found the School District violated its child find
duty when it “waited until January 2015 to refer [O.W.] to special education”
despite the fact that it should have suspected O.W. suffered from a disability
“[b]y the October 28, 2014 accrual date for this proceeding . . . .” The district
court upheld the hearing officer’s decision based on a finding that the School
District’s time to evaluate began to run on October 8, 2014. Citing 34 C.F.R. §
300.534, the district court further held that “given O.W.’s constant violation of
the student code of conduct due to his special needs, SBISD was charged with
expediting the evaluation process.” Ultimately, the district court determined
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the delay between October 8, 2014 (the date of the alleged notice) and January
15, 2015 (the date of the referral for evaluation) was unreasonable.
The School District argues the district court improperly relied on §
300.534 to find the need for an expedited review process and, in the absence of
such a need, there was no child find violation.
1. Was an expedited evaluation required?
20 U.S.C. § 1415(k)(5) provides protections for “[a] child who has not been
determined to be eligible for special education and related services . . . and who
has engaged in behavior that violate[s] a code of student conduct . . . .”
Generally, these protections apply if the educational institution “had
knowledge . . . that the child was a child with a disability before the behavior
that precipitated the disciplinary action occurred.” Id. However, in the absence
of knowledge, the statute provides:
If a request is made for an evaluation of a child during the time
period in which the child is subjected to disciplinary measures
under this subsection, the evaluation shall be conducted in an
expedited manner. If the child is determined to be a child with a
disability, taking into consideration information from the
evaluation conducted by the agency and information provided by
the parents, the agency shall provide special education and related
services in accordance with this subchapter, except that, pending
the results of the evaluation, the child shall remain in the
educational placement determined by school authorities.
20 U.S.C. § 1415(k)(5)(D)(ii).
34 C.F.R. § 300.534, the implementing regulation for § 1415(k)(5),
contains virtually identical language but clarifies that an expedited evaluation
is required when “a request is made for an evaluation of a child during the time
period in which the child is subjected to disciplinary measures under § 300.530
. . . .” 34 C.F.R. § 300.534(d)(2)(i). Section 300.530, in turn, governs removal of
a student from his or her current placement for more than ten days in a school
year.
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Neither the child find provisions nor the expedited evaluation provisions
refer to the other. Thus, in the absence of plain language connecting the
provisions, we “employ can[]ons of statutory construction to discern the
legislature’s intent.” Vielma v. Eureka Co., 218 F.3d 458, 464 (5th Cir. 2000).
At least four aspects of the statutes suggest Congress intended that the
requirements exist independently.
First, the absence of any cross reference between the two provisions
suggests independence. Chamber of Commerce of U.S.A. v. U.S. Dep’t of Labor,
885 F.3d 360, 381 (5th Cir 2018) (“Congress’s use and withholding of terms
within a statute is taken to be intentional.”).
Second, beyond sharing general references to evaluations, the statutes
and regulations are drastically different—the child find requirement details
procedures for identifying disabled students while the expedited evaluation
requirement is in a provision addressing procedures for discipline. Charvat v.
NMP, LLC, 656 F.3d 440, 449 (6th Cir. 2011) (“[T]he two private-right-of-action
provisions contain significant textual differences, indicating that they are
distinct provisions to be treated independently.”).
Third, the expedited evaluation requirement is in a subparagraph titled
“Limitations,” which is located in a subsection titled “Conditions that apply if
no basis of knowledge [of disability].” 20 U.S.C. § 1415(k)(5)(D)(ii). Thus, in
context, the expedited evaluation requirement stands as a “Limitation” on a
school district’s ability to discipline a student in the absence of knowledge of a
disability, not as an element of the separate child find requirement. See House
v. C.I.R., 453 F.2d 982, 987 (5th Cir. 1972) (“[I]t is proper to consult both the
section heading and the section’s content to come up with the statute’s clear
and total meaning.”).
Fourth, the expedited evaluation requirement only triggers when the
child is subjected to disciplinary proceedings, a request for an evaluation has
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been made, and the institution lacked knowledge that the child was a child
with a disability before the behavior that precipitated the discipline. 9 34 C.F.R.
§ 300.534(d). To hold that the expedited evaluation requirement is
incorporated into the child find reasonableness requirement would be to hold
that a school district with previous knowledge of a suspended student’s
disability does not violate the child find requirement by failing to conduct an
expedited evaluation, while a school district without previous knowledge of the
disability would violate the child find requirement by failing to conduct an
expedited evaluation. This absurd result suggests a finding that the provisions
are separate. Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 630
F.3d 431, 439 (5th Cir. 2011) (“[W]e should avoid any interpretation that would
lead to absurd or unreasonable outcome[s] . . . .”) (quotation marks omitted).
In sum, the IDEA’s text and structure, including its implementing
regulations, compel a conclusion that the child find and expedited evaluation
requirements are separate and independent such that a violation of the latter
does not mean a violation of the former. To the extent the district court held
otherwise, this was error. 10
2. Did a child find violation occur?
A finding of a child find violation turns on three inquiries: (1) the date
the child find requirement triggered due to notice of a likely disability; (2) the
date the child find duty was ultimately satisfied; and (3) the reasonableness of
the delay between these two dates. See Krawietz, 900 F.3d at 676.
9 See also Letter to Nathan, OSEP (available at https://sites.ed.gov/idea/files/osep-
letter-to-nathan-01-29-2019.pdf) (“While an LEA may choose or find it necessary to expedite
evaluations in these circumstances, under IDEA expedited evaluations are only required in
situations where the LEA is not deemed to have knowledge that the child may have a
disability . . . .”).
10 Because O.W. did not assert an independent claim arising from a failure to perform
an expedited evaluation, we need not reach the School District’s alternate argument that an
expedited evaluation was not required under the IDEA.
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The School District does not challenge the district court’s finding that
October 8, 2014, represents the appropriate notice date and we see no error in
that conclusion. See Krawietz, 900 F.3d at 677 (finding sufficient notice based
on “academic decline, hospitalization, and incidents of theft”). We also agree
with the parties that the January 15, 2015, referral for evaluation represents
the appropriate end date for the reasonableness inquiry. See Woody, 865 F.3d
at 320 (considering time period between notice and referral for evaluation).
The only dispute then is whether the delay between October 8, 2014, and
January 15, 2015 (99 days, or three months and seven days), was reasonable. 11
This Court has twice considered the reasonableness of delay in the child
find context. In Woody, this Court considered an 89-day delay between notice
and referral to be reasonable where the local education agency spent the period
“requesting and gathering information on [the student] in an effort to classify
her and determine its obligations,” and where more than a month of the period
was spent waiting for the parents of the student to provide specific information.
865 F.3d at 320. In the end, this Court concluded that the “facts suggest[ed]
reasonableness, with neither the District nor the parent reacting with urgency
or with unreasonable delay.” Id.
In contrast, in Krawietz, this Court found a four-month delay
unreasonable where the school district “failed to take any appreciable steps
toward complying with its Child Find obligation” during the relevant time
period. 900 F.3d at 677. In reaching this conclusion, this Court rejected the
school district’s reliance on the student’s parents’ failure to act with urgency
11 Citing Texas’ one-year statute of limitations for IDEA claims, the School District
urges us to look at its actions after October 28, 2014. Because “events preceding [the statute
of limitations bar] may provide evidence of a child-find violation,” we decline to limit the
inquiry in this way. See Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 (2d Cir. 2018)
(considering the time frame from the relevant trigger date, even though it predated the
limitations bar).
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because “the IDEA imposes the Child Find obligation upon school districts, not
the parents of disabled students.” Id. This Court thus distinguished the case
from the facts of Woody, noting that Woody involved a delay which “was not
solely attributable to the district and [a] district . . . [which] took proactive
steps throughout [the] period to comply with its Child Find obligation.” Id.
Taken together, Krawietz and Woody stand for the proposition that the
reasonableness of a delay is not defined by its length but by the steps taken by
the district during the relevant period. A delay is reasonable when, throughout
the period between notice and referral, a district takes proactive steps to
comply with its child find duty to identify, locate, and evaluate students with
disabilities. Conversely, a time period is unreasonable when the district fails
to take proactive steps throughout the period or ceases to take such steps.
The School District argues this case is closer to Woody than Krawietz
because it was entitled to attempt regular behavioral interventions—a process
known as response to intervention (RTI)—and § 504 accommodations prior to
referral, and such steps were consistent with its child find obligations. We
disagree. In light of the acts and behaviors observed by the School District in
this case, its failure to pursue evaluation, even while concurrently
implementing intermediate accommodations, can be described as nothing less
than a delay or denial.
We in no way suggest that a school district necessarily commits a child-
find violation if it pursues RTI or § 504 accommodations before pursuing a
special education evaluation. We instead recognize that determining whether
a child find violation occurred is a fact-intensive inquiry and highlight that
§ 504 accommodations are not a substitute for an evaluation once a school
district is “on notice of acts or behavior likely to indicate a disability.” Krawietz,
900 F.3d at 676. The Child Find obligation is for a “child with a disability” who,
by reason of that disability, “needs special education and related services.” 20
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U.S.C. § 1401(3)(A).
Though compliance with § 504 does not absolve a school district of its
duty to comply with the IDEA, we do recognize that there may be cases where
intermediate measures are reasonably implemented before resorting to
evaluation. For instance, in D.K. v. Abington School District, the Third Circuit
noted that “the measures the School District did take to assist D.K. in the
classroom militate against finding a Child Find violation.” 696 F.3d 233, 252
(3d Cir. 2012). There, the behavior demonstrated by D.K.—hyperactivity,
difficulty following instructions, and tantrums—“was typical of boys his age.”
Id. at 251. Accordingly, it was reasonable for the School District to try
intermediate measures before “jump[ing] to the conclusion that D.K.’s
misbehavior denoted a disability or disorder.” Id. D.K. stands for the
proposition that “schools need not rush to judgment or immediately evaluate
every student exhibiting below-average capabilities, especially at a time when
young children are developing at different speeds and acclimating to the school
environment.” Id. at 252.
In this case, by contrast, O.W. was not exhibiting behaviors “typical of
boys his age.” And, unlike D.K., who was a “young child[]” in the early years of
elementary school, O.W. was a fifth grader who had already been moved
between schools in an attempt to respond to his unique educational needs. By
the time the § 504 meeting occurred on October 8, 2014, O.W. had repeatedly:
drawn violent pictures depicting murder, death, and anti-Semitic images; used
incredibly vulgar language and made lewd gestures in the middle of the
classrooms; disrupted class by yelling obscenities; hurled racial slurs and other
derogatory insults at the principal, teacher, and fellow students; refused to
follow directions or even remain in the classroom; thrown crayons at the
teacher; and engaged in other forms of misconduct that resulted in him being
removed from the classroom on a daily basis. And during this time, the School
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District had attempted to provide both positive and negative reinforcements,
frequent redirections, and consequences for O.W.’s behavior. Yet they had no
effect. Based on the severity of O.W.’s behavior, it was not reasonable to try
intermediate measures to determine whether special education testing was
appropriate for O.W., as was the case for D.K. The School District was more
than reasonably “on notice of acts or behavior likely to indicate a disability”
before implementing § 504 accommodations, and it was, therefore, required to
evaluate O.W. 12
In sum, the record in this case reflects that as of the October 8 notice
date, the School District had attempted to engage with O.W. and his parents
for the purpose of offering positive incentives and that such attempts had
utterly failed to improve O.W.’s behavior. This failure led the hearing officer to
conclude that “[b]y the October 8, 2014 Section 504 meeting, it was apparent
that general education behavioral interventions were not working . . . .” We
agree with the hearing officer that by October 8, 2014, the School District
should have known that general behavior interventions were not working and
that relying exclusively on § 504 accommodations, in lieu of evaluation, would
only delay providing O.W. the assistance he needed. Accordingly, we conclude
the continued use of behavioral interventions was not a proactive step toward
compliance with the School District’s child find duties and that, therefore, a
child find violation occurred. 13
12 We, of course, do not suggest that the School District’s § 504 plan was unreasonable.
It is only to say that, under the circumstances, it was not reasonable for the § 504 plan to be
a preliminary rather than concurrent step in pursuing an evaluation.
13 The School District has suggested that some of the delay may be attributable to
O.W.’s parents’ delay in providing information. While a proactive step may include waiting
for a reasonable time for a parent to respond to a request for information or approval, see
Woody, 465 F.3d at 320, “the IDEA imposes the Child Find obligation upon school districts,
not the parents of disabled students.” Krawietz, 900 F.3d at 677.
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B. FAPE and IEP
“The IDEA requires states and local educational agencies receiving
federal IDEA funds to make a FAPE available to children with certain
disabilities.” Renee J., as Next Friend of C.J. v. Hous. Indep. Sch. Dist., 913
F.3d 523, 528–29 (5th Cir. 2019) (quotation marks and alterations omitted).
“Schools provide students a FAPE based on IEPs unique to each child.” Id. at
529. An IEP is a “written statement prepared at a meeting attended by a
qualified representative of the school district, a teacher, the child’s parents or
guardians, and when appropriate, the child himself.” Id. (quoting Lance v.
Lewisville Indep. Sch. Dist., 743 F.3d 982, 989 (5th Cir. 2014)). An IEP must
be both adequate in design and properly implemented. See id. (IEP must be
adequate); Hous. Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir.
2000) (failure to implement IEP may result in violation of IDEA).
The parties do not dispute the IEP developed by the School District was
adequate in design. 14 However, the hearing officer found, and the district court
agreed, the School District failed to implement O.W.’s IEP because it used
time-outs, physical restraints, and police involvement as forms of discipline,
and because it improperly shortened O.W.’s school day. The School District
challenges each of these conclusions.
1. Use of discipline
Ordinarily, adequacy of an IEP is determined by consideration of the four
“indicators of whether an IEP is reasonably calculated to provide a meaningful
educational benefit under the IDEA,” which were set forth in Cypress-
Fairbanks Independent School District v. Michael F. ex rel. Barry F., 118 F.3d
14 The district court, in a footnote, noted that the escalating discipline at Ridgecrest
was a result of either a failure to implement the IEP or an “inappropriate” IEP. However, the
district court’s opinion also noted that neither party was challenging the adequacy of the IEP
itself. Because the opinion includes no analysis of the relevant factors, it does not appear the
district court intended to hold the IEP was inadequate.
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245, 253 (5th Cir. 1997). However, when a plaintiff brings a claim based on a
failure to implement an IEP, the first factor (whether the program is
individualized) and second factor (whether the program is administered in the
least restrictive environment) are generally “not at issue.” Bobby R., 200 F.3d
at 348. Rather, a court must decide whether a FAPE was denied by
considering, under the third factor, whether there was a “substantial or
significant” failure to implement an IEP; 15 and under the fourth factor,
whether “there have been demonstrable academic and non-academic benefits
from the IEP.” Id. at 349.
a. Take 5 and Take 10
The district court found the use of Take 5 and Take 10 violated the IEP
because under Texas law, “[t]he use of time-outs must be limited on a student’s
IEP if they are to be used,” and because the procedures were time-outs as they
“were mandatory isolations for O.W. away from his regular setting and other
students.” The district court also found the use of the take-discipline
inconsistent with the IEP’s general requirement that staff use a calm
interaction area, redirect O.W., and remind him of his ability to access a cooling
off area.
Texas law provides a “[t]ime-out may only be used in conjunction with
an array of positive behavior intervention strategies and techniques and must
be included in the student’s IEP and/or BIP if it is utilized on a recurrent basis
to increase or decrease a targeted behavior.” 19 Tex. Admin. Code § 89.1053(g).
Thus, an IEP or BIP which does not authorize the recurrent use of time-outs
effectively prohibits such use. The parties do not dispute that O.W.’s IEP did
15 Bobby R. defined the inquiry as whether a district “failed to implement substantial
or significant provisions of the IEP.” 200 F.3d at 349. However, the panel focused the
substance of its inquiry on whether the violation of the IEP (rather than the provision) was
de minimis. Id. at 348.
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not authorize the use of time-outs, 16 or that the take-discipline was utilized on
a recurrent basis to increase or decrease a targeted behavior. However, the
School District contends the Take 5 and Take 10 disciplines were not time-outs
under Texas law because the desk was in O.W.’s classroom and was not
separated from other students and because O.W. was given an opportunity to
pursue preferred activities during the discipline.
The code defines a time-out as “a behavior management technique in
which . . . the student is separated from other students for a limited period in
a setting: (A) that is not locked; and (B) from which the exit is not physically
blocked by furniture, a closed door held shut from the outside, or another
inanimate object.” Id. § 89.1053(b)(3). While the School District is correct the
desk was in O.W.’s classroom and that O.W. was allowed to partake in
preferred activities, nothing in the administrative definition of “time out”
suggests the definition is limited to placement in a separate room or is
inapplicable when the student is provided certain activities. Section 89.1053(b)
only requires a “separat[ion] from other students for a limited period . . . .”
Although the parties cite no specific evidence as to the location of the desk,
references by school employees to the procedure as an “isolation” or “time-out,”
while not dispositive, support the district court’s finding that the desk was
separated from other students. Thus, we conclude the district court did not err
in finding the take-disciplines to be timeouts. Because O.W.’s IEP prohibited
time-outs, the recurrent use of the take-discipline amounted to a substantial
or significant departure from the IEP.
Regarding the fourth factor, the district court found the failure to
16 The School District does not argue the IEP’s authorization to “[d]irect [O.W.] to the
cool-down area” amounted to an authorization to use time-outs under Texas law. We deem
this argument forfeited. See United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th Cir. 2017)
(“[A]ny issue not raised in an . . . opening brief is forfeited.”).
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implement the IEP “denied O.W. the educational benefits sought under the
IEP, and that such failure denied O.W. a FAPE.” We agree. It is undisputed
that after the IEP was implemented, O.W.’s grades dropped 17 and his behavior
deteriorated to the point where school officials determined his school day
should be shortened to three hours. This regression shows neither an
educational nor a behavioral benefit. See generally Hous. Indep. Sch. Dist. v.
V.P. ex rel. Juan P., 582 F.3d 576, 583 (5th Cir. 2009) (“[A]n IEP must be likely
to produce progress, not regression . . . .”) (emphasis added).
In sum, the use of the take-discipline was a significant or substantial
departure from O.W.’s IEP. During the time period this departure occurred,
O.W. regressed both educationally and behaviorally. Under these
circumstances, we conclude the district court did not err in finding an
actionable failure to implement O.W.’s IEP as to take discipline.
b. Physical restraints
The district court and the hearing officer found the use of physical
restraints violated the IEP’s framework for behavioral interventions, which
required that staff use a calm style, minimize verbal interactions, avoid power
struggles, and provide access to a cooling off period. The School District argues
it was entitled under Texas law to use physical restraints and it was not
required to include such use in the IEP.
There is no question the use of physical restraints is neither positive
reinforcement nor consistent with avoiding confrontations or power struggles.
However, Texas law expressly authorizes a local education agency (LEA) to use
17 In arguing O.W.’s grades improved under the IEP, the School District compares
O.W.’s scores from the first term (when he started at Nottingham) to his fourth term (when
he was mostly at Ridgecrest). When compared in this fashion, the School District is correct
that all but one of O.W.’s grades improved. However, when compared to the third term, which
ended approximately two weeks before O.W. began at Ridgecrest, the grades dropped in most
subjects.
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physical restraints in an “Emergency” situation, which is defined as a
“situation in which a student’s behavior poses a threat of . . . imminent, serious
physical harm to the student or others; or . . . imminent, serious property
destruction.” 19 Tex. Admin. Code § 89.1053(b), (c). Unlike the use of time-outs,
the law contains no provision requiring that the use of physical restraints be
expressly authorized by a student’s IEP.
O.W.’s IEP listed positive reinforcement and avoidance of power
struggles as two of seven “Specific strategies/supports to prevent or decrease .
. . problem behavior.” In addition, the IEP listed five “Strategies/interventions
to use when [physical aggression] behavior is occurring:” (1) “Us[ing] a calm
interaction style and minimize[ing] verbal interactions;” (2) “Remind[ing O.W.]
to use taught coping strategies;” (3) “Direct[ing O.W.] to the cool-down area;”
(4) “Provid[ing] more physical space;” and (5) “Remov[ing] extraneous objects
so [O.W.] is not tempted to throw them.” Nothing in the IEP suggests the LEA
was required to follow every strategy in every instance. More important,
nothing in the listed strategies suggests the techniques were intended to apply
in the specific situation governed by the emergency restraint provision—when
there is an imminent threat of serious harm. Therefore, so long as the School
District’s use of physical restraints complied with state law, the use of
restraints did not violate the IEP.
O.W.’s disciplinary records show that he was physically restrained eight
times and that each instance of restraint was preceded by violent behavior by
O.W. and attempts by district staff to utilize at least some of the strategies
enumerated in the IEP. In each instance, the school determined the restraint
was necessary to prevent serious physical harm to O.W. or to another. O.W.
does not dispute the uses of restraints were necessary to prevent harm and
were thus appropriate under Texas law. Accordingly, the district court erred
in concluding these eight instances of physical restraints violated O.W.’s IEP.
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c. Police intervention
As with the physical restraints, the district court and the hearing officer
determined the request for police intervention violated the IEP, and thus
denied O.W. a FAPE, because calls to police were inconsistent with the IEP’s
expressly authorized strategies of using a calm interaction style, minimizing
verbal interactions, providing access to a cooling off period, and avoiding power
struggles. We disagree.
As mentioned above, the IEP listed specific strategies to be used to
address O.W.’s aggressive behavior. These strategies are not necessarily
violated by a mere request for police presence, particularly to deal with a
violent and escalating situation such as a student repeatedly striking a teacher
and charging at her, as was the case here. O.W. interacted with police officers
on one occasion, and only after school officials provided him an opportunity to
cool down, offered verbal redirections, provided praise, attempted to reduce
verbal interactions, and applied calming techniques. Once the officers arrived,
the interaction was limited to a handful of questions which may best be
characterized as implicit threats of arrest if O.W. continued to assault his
teachers. There is no indication Ridgecrest staff directed or encouraged the
police officers to act in a manner inconsistent with the IEP. Because the School
District took steps to avoid police interaction and O.W.’s behavior posed a
substantial risk of serious injury to himself and others, we do not believe the
calls to police were inconsistent with O.W.’s IEP. Accordingly, the single
instance of police involvement did not rise to the level of an actionable
violation.
2. Modification of IEP
Under Texas law, “[s]tudents with disabilities must have available an
instructional day commensurate with that of students without disabilities. The
ARD committee must determine the appropriate instructional setting and
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length of day for each student, and these must be specified in the student's
IEP.” 19 Tex. Admin. Code § 89.1075(e). Both the district court and the hearing
officer determined that the shortening of O.W.’s school day violated O.W.’s IEP
(and thus the IDEA) because the shortened school day was not provided for in
O.W.’s IEP. The School District submits the IEP was modified by Ms. W and
school officials.
“In making changes to a child's IEP after the annual IEP Team meeting
for a school year, the parent of a child with a disability and the public agency
may agree not to convene an IEP Team meeting for the purposes of making
those changes, and instead may develop a written document to amend or
modify the child’s current IEP.” 34 C.F.R. § 300.324(a)(4)(i). Unless the IEP is
modified by agreement in accordance with paragraph (a)(4), it may be modified
only “by the entire IEP Team at an IEP Team meeting.” Id. § 300.324(a)(6).
By its terms, § 300.324(a)(4) provides an agreement may be modified
without a meeting when the parent and LEA (1) agree as to the modification;
(2) agree not to convene an IEP meeting; and (3) develop a written document
to amend or modify the IEP. While the district court and hearing officer focused
on the general fact that the IEP was modified to shorten O.W.’s school day,
there were two modifications—the initial modification from a 7:30 start time
to a 9:00 start time, and the subsequent modification to a three-hour school
day.
The initial modification, which included a formal written document
prepared by Ms. W. and the LEA that set forth the modification and did not
contemplate further IEP team action, satisfies § 300.324(a)(4)’s three
requirements. However, the subsequent modification, which did not include a
formal written document produced by the parent and the LEA, and which
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internal documents reflect presupposed a subsequent ARD meeting, 18 did not
meet the regulation’s requirements. It follows, therefore, that only the initial
modification was effective and that the subsequent shortening of O.W.’s school
day violated the IEP. This modification, which approximately halved O.W.’s
school day, was a substantial and significant deviation from the IEP which
indisputably resulted in a loss of academic benefits. Thus, the district court
erred in finding the May 6, 2015, modification represented an actionable
failure to implement O.W.’s IEP. The district court, however, correctly
concluded the May 18, 2015, modification rose to the level of an actionable
violation.
IV. REMEDIES
The “IDEA authorizes reimbursement for the cost of private special-
education services when a school district fails to provide a FAPE and the
private-school placement is appropriate, regardless of whether the child
previously received special education or related services through the public
school.” Woody, 865 F.3d at 314–15. If these requirements are satisfied, the
court “must consider all relevant factors, including the notice provided by the
parents and the school district’s opportunities for evaluating the child, in
determining whether reimbursement for some or all of the cost of the child’s
private education is warranted.” Id. at 315. However, to the extent this form of
reimbursement is dependent on the failure to provide a FAPE, it may not
18The only written document cited by the School District is an internal e-mail between
staff members stating that Ms. W. had agreed to the reduction, which reads:
Kristin and I had a long conversation with the 5th grader’s mother. In order to
“survive” the last 11 days of school, let’s shorten his day from 9 to noon. Ana, this
means a brief ARD; know that he will begin this schedule tomorrow. She said she
could stay after she drops him off. We will hold an ARD at SFMS before school starts
to get him back full day; just FYI. Let us know how you want to handle the brief ARD
as in who needs to be there, etc. I will be out to speak to the teacher and para [sic]
about some ideas. She said today went well . . . .
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extend to periods when no FAPE violation occurred. See generally id. at 318
(“[N]o case shown to us has permitted reimbursement for the time period
before a school district’s obligations under the Act arose.”). Put differently, “the
right to private school reimbursement, once adjudicated, does not go on
indefinitely, but only while the school district is noncompliant (or
acknowledges its inability to comply) with its obligation to provide a ‘free
appropriate public education.’” Casey K. ex rel. Norman K. v. St. Anne Cmty.
High Sch. Dist. No. 302, 400 F.3d 508, 516 n.1 (7th Cir. 2005).
In contrast, compensatory awards, which may include tuition
reimbursement, are designed to provide “services prospectively to compensate
for a past deficient program.” Draper v. Atlanta Indep. Sch. Sys., 518 F.3d
1275, 1280 (11th Cir. 2008). Such awards “should place children in the position
they would have been in but for the violation of the Act.” Id. at 1289 (citing
Reid ex rel Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005)).
The hearing officer awarded the cost of one year of compensatory
education for the 2016–2017 school year at Fusion because “[i]n the 2014-2015
school year, the School District did not timely fulfill its Child Find Obligation
and did not fully implement Student’s IEP, denying Student a FAPE.” The
officer also found the School District should reimburse O.W. for the 2015–2016
school year at Fusion because placement in the School District was
inappropriate and placement at Fusion was appropriate. The district court
affirmed these decisions.
To the extent the hearing officer and district court awarded tuition
reimbursement for a time period for which there was no corresponding finding
of an IDEA violation (the 2015–2016 school year), such an award appears to
have been in error. Regardless, because we have determined some of the
district court’s underlying conclusions were incorrect, we remand the remedy
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question to the district court for reconsideration in light of this opinion. 19 See
M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 862 (9th Cir. 2014) (remanding for
reconsideration of remedies following reversal of summary judgment finding).
For the reasons above, we AFFIRM in part, REVERSE in part, and
REMAND.
19 We note that “[a]n unreasonable delay in complying with [the Child Find] duty may
constitute a procedural violation of the IDEA.” Krawietz, 900 F.3d at 676 (internal quotation
marks and citation omitted). “In matters alleging a procedural violation, a hearing officer
may find that a child did not receive a free public education only if the procedural
inadequacies—(I) impeded the child’s right to a free appropriate public education; (II)
significantly impeded the parents’ opportunity to participate in the decisionmaking process
regarding the provision of a free public education to the parents’ child; or (III) caused a
deprivation of education benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii).
29