S. v. Waxahachie Indep Sch Dist

Case: 22-10443 Document: 00516686498 Page: 1 Date Filed: 03/23/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 23, 2023
No. 22-10443 Lyle W. Cayce
Clerk
B. S., B/N/F Justin S.; Meghan S.,
Plaintiff—Appellant,
versus
Waxahachie Independent School District; Derrick
Young, Individually and in his Official Capacity; Mike
Lewis, Individually and in his Official Capacity; City
of Waxahachie,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-2724
Before Davis, Haynes, and Graves, Circuit Judges.
Per Curiam:*
Plaintiffs-Appellants, B.S., by his next friends and parents, Justin S.
and Meghan S., brought a state administrative complaint against the
Waxahachie School District (“the School District”), alleging that the School
District failed to provide B.S. with a free and appropriate public education
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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“FAPE,” as required by the Individuals with Disabilities Education Act
(“IDEA”).
Following a state administrative hearing, a Special Education Hearing
Officer concluded that the School District had provided B.S. with a FAPE
during his third-grade year. B.S. subsequently challenged the ruling in
federal district court. He also brought an intentional discrimination claim
against the City of Waxahachie and its officers, Derrick Young and Mike
Lewis (collectively “the City”), under the Americans with Disabilities Act
(“ADA”). The district court affirmed the hearing officer’s decision on cross
motions for summary judgment and dismissed B.S.’s remaining claims. For
the following reasons, we AFFIRM.
I. BACKGROUND
B.S. enrolled in the School District as a kindergartener in the Fall of
2013. In October of that year, the School District administered a Full and
Individual Evaluation (“FIE”) to determine whether B.S. had a disability as
defined by the IDEA, and if so, whether he required special education
services. Based on this evaluation, the School District certified that B.S.
qualified for special education as a student with autism and a speech
impairment. Throughout the following years, B.S. struggled with behavioral
issues—particularly physical and verbal aggression—during the school day.
This appeal arises from the 2016-2017 school year when B.S. was eight
years old and in the third grade. Pursuant to B.S.’s 2015 Individual Education
Plan (“IEP”), he began the year in a special education classroom with teacher
Tracy Gooch for English, language arts, reading, science, social studies, and
social skills. B.S. attended his math and “specials” classes (i.e., art, PE,
music) in a general-education setting.
B.S.’s mother testified at the due process hearing that B.S.’s “first
month [of third grade] was good” in terms of his behavior, but that in
2
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September he began having behavioral incidents. These incidents are
detailed in B.S.’s behavioral “choice sheets,” which were filled out by his
special education teacher, Ms. Gooch, each day. B.S.’s choice sheets show
that from August 22, 2016, through October 11, 2016, he engaged in nine
documented behavioral incidents. 1 Two of those incidents rose to the level
of requiring a disciplinary incident report. Because Ms. Gooch had to
restrain B.S. during one of those incidents, the School District filled out a
“Written Summary of Restraint Use” that was placed in his special
education eligibility folder.
On October 7, 2016, the School District completed its three-year
reevaluation of B.S.’s FIE. The results from B.S.’s reevaluation show that
he has a below-average IQ of seventy-seven and that his present levels of
academic achievement were “below average.” A licensed specialist in school
psychology noted in B.S.’s FIE that he continued “to demonstrate a profile
of behavior consistent with a diagnosis of autism,” but “has made marked
strides in behavior since the time of his initial autism evaluation.”
On October 11, 2016, the School District held a meeting with a team
of qualified professionals, known in Texas as an Admission, Review, and
Dismissal Committee (“ARD Committee”), to review B.S.’s progress and
update his IEP 2 for the 2016-2017 school year. Although B.S.’s parents are
1
Some of those behavioral incidents included: (1) spitting on another student;
(2) failing to follow directions; (3) disrespecting students and staff and hitting a staff
member; (4) running in the hallways and using “unkind” words; (5) trying to stab another
student with a pencil, using foul language, slapping a student with a ruler, failing to follow
directions, and hitting a teacher; (6) hitting students, and climbing fences; (6) using a loud
voice to seek attention and running out of class.
2
An IEP is a “‘written statement’ that outlines how special education and related
services will be delivered to . . . [a particular] child,” and is reviewed at least annually by
the ARD Committee. Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d 205, 209 (5th Cir. 2019)
(quoting 20 U.S.C. § 1414(d)(1)(A)); 20 U.S.C. § 1414(d)(4)(A)(i).
3
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members of the ARD Committee, 3 they were unable to attend the meeting
and gave permission for the Committee to proceed without them.
At the meeting, the ARD Committee enumerated ten annual goals for
B.S. in English, language arts, reading, math, social studies, science, adaptive
behavior, and speech therapy. In terms of B.S.’s academics, the ARD
Committee decided to remove B.S. from general education math and instead
place him in a “modified math” in a special education classroom with
younger students. The ARD Committee also discussed concerns about
B.S.’s behavior, noting that he had “some behavior challenges at times due
to academic frustration.” Due to these concerns, the Committee included a
behavior management accommodation in B.S.’s IEP with strategies to
manage his behavior, including: taking frequent breaks and giving him the
opportunity to walk/run outside with staff. However, because the
Committee decided that B.S.’s behavior did not impede his own learning or
that of others, it declined to implement a behavior intervention plan (“BIP”).
After the ARD Committee meeting, B.S. began attending Lora
Lockamy’s special education classroom with younger students each day for
thirty minutes of reading and thirty minutes of math. Although B.S. had one
disciplinary incident on November 3, 2016, he did not have any further
disciplinary incident reports until February of 2017. 4
3
See Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. ex rel. Barry F. (“Michael F.”),
118 F.3d 245, 247 (5th Cir. 1997) (explaining that an IEP is 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”).
4
At oral argument, B.S.’s counsel cast doubt on the assertion that B.S. did not have
any serious behavioral incidents between November and February by alleging that the
School District failed to turn over B.S.’s behavioral choice sheets from November through
December of 2016. However, the record on appeal contains B.S.’s choice sheets during
this time period and they do not document any further behavioral incidents.
4
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The parties agree that B.S.’s behavior suddenly deteriorated in
February of 2017. In February alone B.S. had five disciplinary incident
reports. For context, during this time period, B.S.’s medication was
changed, his family, which now included a new baby, moved homes, and a
new student joined Ms. Gooch’s classroom. Because of B.S.’s rise in
behavioral incidents, on February 13, he began attending Ms. Lockamy’s
kindergarten through second grade classroom for more of the day. On
February 28, 2017, Lucy Walter, the School District’s diagnostician, initiated
a “Behavioral Specialist Request” recommending that the School District
conduct a Functional Behavioral Assessment (“FBA”) and implement a BIP
for B.S.
On March 3, 2017, B.S. had a meltdown. He became agitated and
began throwing objects, pushing over desks, and hitting his teachers,
resulting in the evacuation of his classroom. His special education teacher,
Ms. Gooch, testified that given B.S.’s escalating behavior, she called 911
because she believed it was “in the best interest of the staff members and
students on campus.” The Waxahachie Police Department responded by
dispatching officer Derrick Young to the school.
When Officer Young entered the classroom, B.S. began running
towards him and threw a chair at him. After catching the chair, Officer
Young restrained B.S. by grabbing his arms and placing him on his stomach
while Ms. Kazda, B.S.’s principal, held his head up to keep him from banging
it on the ground. At the due process hearing, Officer Young testified that as
soon as he walked into the classroom, he knew it was a “very unsafe”
situation.
5
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Because Ms. Kazda and Officer Young were unable to deescalate
B.S.’s behavior, 5 Officer Young called for a backup officer. When Officer
Mike Lewis arrived, he informed B.S. that if he did not calm down, he would
have to place B.S. in handcuffs for his own safety. After B.S. was still unable
to calm down, Officer Lewis placed B.S. in handcuffs. Once he was in
handcuffs, the officers were able to walk B.S. to the front office where his
mother came to pick him up. B.S., his mother, Ms. Kazda, and the officers
then debriefed on what happened and the conversation ended with B.S.
shaking hands with one of the officers and hugging Ms. Kazda. B.S.’s mother
additionally asked Ms. Kazda to schedule an ARD Committee meeting to
address the incident.
On March 6, 2017, the School District provided B.S.’s parents with a
“Notice of Proposal to Evaluate” which included a request for additional
behavioral accommodations (an FBA and a BIP) and a parent training
evaluation, all of which required parental consent. B.S.’s parents never
provided consent for these evaluations. On March 8, the School District sent
B.S.’s parents a notice that an ARD Committee was scheduled for March 20.
The following day, B.S.’s parents filed a request for an IDEA due
process hearing, alleging that the School District failed to provide B.S. with
a FAPE. For relief, B.S.’s complaint requested: (1) the School District
provide B.S. an Independent Educational Evaluation (“IEE”);
(2) reimbursement for services privately obtained by B.S.’s parents,
including the costs of a hospitalization and counseling; (3) reimbursements
for the costs of a summer program; (4) compensatory education services by
5
Officer Young attempted to deescalate the situation by asking B.S. what was going
on, why he was angry, and what his mother’s name was. He also told B.S. to calm down
and to use his words. In response, B.S. yelled that it was “none of [Officer Young’s]
business” what his mother’s name was, and that Officer Young should “shut up.”
6
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private tutoring; (5) counseling for B.S.; and (6) damages of an “uncertain
nature.” The School District scheduled a meeting with B.S.’s parents to
resolve their due process complaint, but his parents failed to attend. B.S.’s
mother left the rescheduled resolution meeting because Ms. Gooch was
unable to attend.
On March 18, B.S.’s parents’ advocate cancelled the ARD Committee
meeting scheduled for March 20. After the meeting was cancelled, Diane
Chapell, the School District’s director of special education, instructed her
team to develop a proposed amendment to B.S.’s IEP that would provide him
with additional behavioral accommodations without waiting for a formal
ARD Committee meeting. However, B.S.’s parents declined to sign the
proposed IEP amendment.
After the March 3 incident, B.S.’s mother kept him out of school for
several weeks, partially due to B.S.’s eight-day stay at a behavioral hospital.
When he returned to school, the School District moved B.S. into Ms.
Lockamy’s room full time. On April 19, 2017, B.S. threw a telephone at
Melissa McGuire, a behavioral specialist for the School District, and
emergency services were called to treat her injuries. In light of this incident,
the ARD Committee conducted a Manifestation Determination Review on
May 1. The School District provided B.S.’s parents with notice of meeting
via email and mail. The night before the meeting, B.S.’s parents’ advocate
informed the School District that the parents would be unable to attend.
After offering B.S.’s parents the option of participating by telephone or
rescheduling, the School District proceeded with the Manifestation
Determination Review meeting in “light of the serious nature of [B.S.’s]
behavior.”
At the meeting, the ARD Committee concluded that because a direct
relationship between B.S.’s disability and his behavioral outbursts could not
7
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be “ruled out,” they would consider his behavior to be a manifestation of his
disability. Accordingly, the Committee decided to implement additional
behavioral supports in B.S.’s IEP, including the development of a BIP. The
Committee sent the minutes from the meeting to B.S.’s parents and noted
that if his parents did not consent to these changes, B.S.’s amended IEP could
not be implemented until May 9.
On May 2, 2017, B.S.’s teachers physically restrained him after he hit
one teacher and threw a chair at another. At the time of this incident, B.S.’s
revised IEP had not yet been implemented because the School District had
not received consent from B.S.’s parents. After B.S.’s May 2 escalation, he
did not have any further significant behavioral issues for the rest of the year.
B.S.’s parents enrolled him in a new school district for the 2017-2018 school
year.
The hearing officer held the requested due process hearing on May 9-
10, 2018. 6 The hearing officer found in favor of the School District and
concluded that it had provided B.S. with a FAPE. On October 15, 2018, B.S.
appealed the hearing officer’s decision in federal district court. He also sued
the School District and Principal Kazda under the ADA, § 504 of the
Rehabilitation Act, and 42 U.S.C. § 1983. B.S. also included claims under §
1983 and the ADA against the City.
On cross motions for summary judgment, the district court affirmed
the hearing officer’s decision that the School District provided B.S. with a
FAPE. The district court also granted motions to dismiss B.S.’s remaining
claims. B.S. timely appealed the district court’s order granting summary
6
20 U.S.C. § 1415(f)(A) (“Whenever a complaint has been received, . . . the
parents or the local education agency involved in such complaint shall have an opportunity
for an impartial due process hearing, which shall be conducted by the State educational
agency or by the local education agency . . . .”).
8
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judgment to the School District on his IDEA claim and its dismissal of his
ADA claim against the City.
II. STANDARDS OF REVIEW
As it pertains to B.S.’s IDEA claim, we review a district court’s
determination as to whether a school district has provided a FAPE as a mixed
question of law and fact. 7 The district court’s legal conclusions are reviewed
de novo, while its findings of fact are reviewed for clear error. 8 We review de
novo mixed questions of law and fact, such as the “district court’s decision
that a local school district’s IEP was or was not appropriate.” 9 However, the
district court’s finding that a student obtained an educational benefit from
the school’s special education services is a finding of underlying fact
reviewed for clear error. 10 Because the IDEA “‘creates a presumption in
favor of a school system’s education plan,’ the burden of proof rests on the
party challenging the plan.” 11
Under the IDEA, the district court’s review of the state hearing
officer’s decision is “virtually de novo.” 12 Although the district court must
give “due weight” to the hearing officer’s findings, the court must ultimately
7
Klein v. Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 395 (5th Cir. 2012) (citing Teague
Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993)).
8
R.S. ex rel. Ruth B. v. Highland Park Indep. Sch. Dist., 951 F.3d 319, 328 (5th Cir.
2020) (per curiam).
9
E.R. ex rel. Spring Branch Indep. Sch. Dist., 909 F.3d 754, 766 (5th Cir. 2018)
(internal quotation marks and citation omitted).
10
R.S., 951 F.3d at 328 (quoting Klein, 690 F.3d at 395).
11
H.W. ex rel. Jennie W. v. Comal Indep. Sch. Dist., 32 F.4th 454, 462 (5th Cir. 2022)
(quoting White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir. 2003)).
12
Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir.
2003) (internal quotation marks and citation omitted).
9
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“arrive at its own independent decision based on the preponderance of the
evidence.” 13 However, the Supreme Court has cautioned that courts should
not “substitute their own notions of sound educational policy for those of the
school authorities which they review.” 14 Finally, under this standard, the
district court should award “greater deference” to the hearing officer’s
credibility determinations based on live testimony. 15
As it pertains to B.S.’s ADA claim, we review the grant of a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) de novo. 16 “To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its
face.” 17
III. DISCUSSION
A. The IDEA Claim
We begin with a brief background on the IDEA. The IDEA “offers
States federal funds to assist in educating children with disabilities” in
exchange for the State’s compliance “with a number of statutory
conditions,” including the requirement to provide a FAPE to qualifying
children with disabilities. 18 “The primary vehicle” 19 for ensuring that a
13
R.S., 951 F.3d at 328.
14
Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 404
(2017) (internal quotation marks and citation omitted).
15
Lisa M., 924 F.3d at 218 (internal quotation marks and citation omitted).
16
Elsensohn v. St. Tammany Par. Sheriff’s Off., 530 F.3d 368, 371 (5th Cir. 2008).
17
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted).
18
Endrew F., 580 U.S. at 390 (citing 20 U.S.C. § 1412(a)(1)).
19
Honig v. Doe, 484 U.S. 305, 311 (1988).
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disabled student receives a FAPE is the creation and implementation of an
IEP, which ensures that students receive special education and related
services that are “tailored to the[ir] unique needs.” 20
The IDEA includes both procedural and substantive requirements.
As relevant here, a school district may violate the IDEA by implementing an
IEP that is not “reasonably calculated to enable the child to receive
educational benefits.” 21 To evaluate whether a student’s IEP is substantively
adequate, this Court employs a four-factor test set forth in Michael F. These
factors include 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.” 22
On appeal, B.S. argues that the district court erred in concluding that
the School District complied with the substantive requirements of the IDEA.
The thrust of B.S.’s argument is that his 2016 IEP was not reasonably
calculated to provide him with educational benefits because it did not
adequately address his behavioral issues. We review B.S.’s arguments in the
course of evaluating whether his IEP satisfies the four Michael F. factors.
1. Individualization
B.S. contends that his 2016 IEP was not properly individualized
because the ARD Committee did not fully consider the severity of his
behavioral issues in the Fall of 2016. As a result, B.S. argues that the
20
Endrew F., 580 U.S. at 391 (quoting Board of Ed. of Hendrick Hudson Central Sch.
Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 181 (1982)).
21
Rowley, 458 U.S. at 201.
22
Michael F., 118 F.3d at 253.
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Committee failed to perform an FBA or implement a BIP early enough to
address his behavioral issues.
As it pertains to B.S.’s argument that the ARD Committee was
unaware of the full extent of his behavioral issues, B.S. points to Ms. Kazda’s
testimony that she knew of one behavioral incident at the time of the ARD
Committee meeting 23 and Ms. Gooch’s testimony that she did not reference
B.S.’s restraint forms in developing his present levels of academic
achievement and functional performance (“PLAAFP”). 24 However, B.S.’s
IEP, as well as other record evidence, support the district court’s finding that
the ARD Committee considered the full extent of B.S.’s behavior in
developing his 2016 IEP.
Ms. Kazda’s testimony that she was only aware of one behavioral
incident in the Fall of 2016 does not mean that the full ARD Committee
lacked awareness of the extent of B.S.’s behavioral issues. B.S.’s special
education teacher, Ms. Gooch, also attended the ARD Committee meeting
and was unquestionably aware of B.S.’s behavior, including his restraint
referrals. 25 In fact, Ms. Gooch was able to use her first-hand observations of
B.S.’s behavior in recommending the new behavioral goals adopted in the
2016 IEP. Additionally, Ms. Chapell, the School District’s director of special
education, testified that after reviewing B.S.’s 2016 PLAAFP statements and
goals, she believed that the ARD Committee was fully aware of B.S.’s
23
Ms. Kazda testified that B.S. only had “one incident in September where he had
a hard day.” However, on cross-examination, Ms. Kazda acknowledged that B.S. had more
than one behavioral incident in September.
24
Ms. Gooch testified that in listing the data sources that were reviewed in
developing B.S.’s PLAAFP, his September 28 restraint form was not listed.
25
Ms. Gooch testified that she included her “observations from the disciplinary
incidents on September 28th and September 29th” in B.S.’s PLAAFP.
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behavior. Accordingly, the district court did not clearly err in finding that the
record supported the conclusion that the ARD Committee was aware of
B.S.’s behavior in the Fall of 2016.
Second, B.S. contends that his IEP was not individualized because it
contained “virtually no behavioral support” and was created without the aid
of an FBA or the implementation of a BIP. The IDEA requires a school
district to “consider the use of positive behavioral interventions and
supports, and other strategies” when a child’s behavior impedes the child’s
own learning or that of others. 26 Courts have held that a school district
satisfies this requirement, even in the absence of an FBA, in cases where a
student’s IEP “adequately identifies a student’s behavioral impediments and
implements strategies to address that behavior.” 27
Here, B.S.’s 2016 IEP contained adequate accommodations to
address his behavioral problems. Specifically, his IEP set forth two
behavioral goals that required him to work towards: (1) walking in the hallway
with his hands not touching the walls and (2) not displaying negative behavior
such as “kicking, hitting, running, throwing objects, or refusing to work to
seek peer attention instead, [and] when prompted, talk with a staff member,
take a break, or use a cool down place.” Further, as noted above, B.S.’s IEP
included strategies to manage his behavior, and B.S.’s teachers testified that
26
20 U.S.C. § 1414(d)(3)(B)(i).
27
M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 140 (2d Cir. 2013); see
also Ruffin v. Houston Indep. Sch. Dist., 459 F. App’x 358, 361 (5th Cir. 2012) (per curiam)
(unpublished) (rejecting plaintiff’s assertion that her daughter’s IEP was not individualized
because the school failed to conduct an FBA given that the student’s IEP “contained
accommodations to address . . . [the student’s] behavioral problems,” including “a
behavioral support plan and educational goals tailored to meet” her needs). Although
Ruffin and other unpublished opinions cited herein are “not controlling precedent” except
in limited circumstances, they “may be persuasive authority.” Ballard v. Burton, 444 F.3d
391, 401 n.7 (5th Cir. 2006).
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those strategies were helping him. 28 Accordingly, the district court did not
error in concluding that the School District’s accommodations and
behavioral goals set forth in B.S.’s IEP constituted a sufficiently good faith
effort to help him achieve his educational goals in light of his behavioral
issues. 29
With respect to his argument about the need for an FBA and a BIP,
B.S. relies on the testimony of Dr. Adiaha Spinks-Franklin and his mother,
as well as the fact that his behavior escalated in February of 2017. Plaintiffs’
expert, Dr. Spinks-Franklin, testified that she would have recommended an
FBA and a BIP in the Fall of 2016. Dr. Spinks-Franklin based her testimony
on B.S.’s records from the School District and her conversation with B.S.’s
mother, but she never met with B.S. or any of his teachers. B.S.’s mother
testified that she did not believe B.S.’s 2016 IEP sufficiently addressed his
behavioral issues. However, aside from testifying generally that additional
“behavior support” and “interventions” were necessary, B.S.’s mother
offered no specifics about what the School District should have done
differently.
The hearing officer heard testimony that contradicts B.S.’s assertion
that he needed an FBA and a BIP in the Fall of 2016. B.S.’s special education
teachers, Ms. Lockamy and Ms. Gooch, both testified that B.S. did not need
28
For example, Ms. Gooch testified that in the Fall of 2016, B.S. got to the point
where “he could actually verbalize the calming strategy that he needed,” such as asking
staff to go for a walk or get a drink, and that he was unable to do that at the beginning of the
year. Similarly, Ms. Chapell testified that the behavioral supports in place in B.S.’s 2016
IEP were “fairly effective.” Although she conceded that the program “wasn’t perfect be-
cause he continued to have some difficulties,” she noted that is “pretty normal.” .
29
H.W., 32 F.4th at 470 (rejecting the plaintiff’s argument that the school district
“should have exercised other options to dispel any behavioral issues” on the grounds that
“our review of an IEP must be limited to whether the IEP is reasonable, not ideal”).
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an FBA or a BIP prior to February of 2017. 30 Ms. Edmondson, the School
District’s behavior specialist and B.S.’s first-grade teacher, testified to the
same. 31 In light of the above testimony, the district court found that the
hearing officer was entitled to credit the testimony of B.S.’s teachers over the
testimony of his mother and Dr. Spinks-Franklin.
In reviewing the record, we find that the district court sensibly
followed the hearing officer’s reliance on the testimony from B.S.’s teachers,
who interacted with him on a daily basis, in concluding that B.S.’s behavior
was being adequately managed without an FBA and a BIP until February of
2017. 32 In light of the deference we afford to hearing officers’ credibility
determinations based on live testimony, 33 we agree with the district court’s
30
Ms. Gooch testified that she agreed with the ARD Committee’s determination
in October of 2016 that B.S. did not need a BIP. Ms. Lockamy testified that prior to
February 27 she did not see a need to refer B.S. for an FBA or a BIP and that she “hadn’t
seen any major aggressive behaviors from B.S.” in the Fall.
31
Ms. Edmondson, who has a master’s degree in autism, testified that during the
Fall semester she did not see a need for any changes to B.S.’s IEP, and that in her opinion
an FBA or a BIP was not necessary for B.S. prior to the incidents occurring in February.
32
See Michael F., 118 F.3d at 255 (finding that “the testimony . . . [of] individuals
who had direct and frequent contact with Michael . . . provides substantial support for the
district court’s determination that the October 4, 1993 IEP was reasonably calculated to,
and in fact did, produce meaningful educational benefits”).
33
Lisa M., 924 F.3d at 218 (noting that the district court should award “greater
deference” to the hearing officers’ credibility determinations based on live testimony);
Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 889 (9th Cir. 2001)
(noting that in light of “[t]raditional notions of the deference owed to a fact finder,” a state
hearing officer “who receives live testimony is in the best position to determine issues of
credibility”); P.P. v. Nw. Indep. Sch. Dist., 839 F. App’x 848, 858 (5th Cir. 2020) (per
curiam) (unpublished) (“The hearing officer’s reliance on testimony from P.P.’s teachers,
as opposed to testimony from P.P., reflects an implicit credibility determination that is
owed deference.” (citing Lisa M., 924 F.3d at 218)).
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conclusion that an FBA and a BIP were not necessary in the Fall of 2016 to
ensure that B.S.’s IEP was sufficiently individualized.
Finally, the fact that B.S.’s behavior escalated in February of 2017 by
itself is not conclusive evidence that his 2016 IEP was not sufficiently
individualized. An IEP need not be “perfect” nor “insulate a child from
experiencing hardships” in order to comply with the IDEA. 34 Instead, the
IDEA only guarantees a child a “basic floor” of opportunity that meets a
child’s “unique needs” with “services that will permit him to benefit from
the instruction.” 35 Here, that is exactly what B.S.’s 2016 IEP provided.
B.S.’s teachers testified that they were generally able to manage his
behavior under the 2016 IEP 36 and when that changed in February of 2017
the School District responded by: (1) requesting consent for an FBA and a
BIP, (2) scheduling an ARD Committee meeting, and (3) altering B.S.’s
educational setting. This type of responsiveness to changes in a student’s
behavior is what the IDEA requires to ensure that an IEP is sufficiently
individualized. 37 Therefore, the district court correctly concluded that the
first Michael F. factor weighs in favor of the School District.
34
A.A. v. Northside Indep. Sch. Dist., 951 F.3d 678, 691 (5th Cir. 2020).
35
R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1008 (5th Cir. 2010) (internal
quotation marks and citation omitted).
36
M.M. v. Dist. 0001 Lancaster Cnty. Sch., 702 F.3d 479, 487 (8th Cir. 2012) (“It is
‘largely irrelevant’ if the school district could have employed ‘more positive behavioral
interventions’ as long as it made a ‘good faith effort’ to help the student achieve the
educational goals outlined in his IEP.” (quoting CJN v. Minneapolis Pub. Schs., 323 F.3d
630, 639 (8th Cir. 2003)).
37
See H.W., 32 F.4th at 465 (finding the student’s IEP was “undoubtedly
individualized” because the ARD Committee “showed that it was vigilant in its evaluation,
observation, and assessment of H.W. and that it routinely updated H.W.’s IEP to reflect
its individualized findings”); R.S., 951 F.3d at 332 (noting that each time the student fell
the school district “implemented new measures that were intended to prevent the fall from
16
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2. Least Restrictive Environment
Under the IDEA, a school must offer special education classes in the
“least restrictive environment” appropriate for a child’s needs. “Although
the IDEA contains a preference for mainstreaming children, that preference
is not absolute.” 38 A school district does not run afoul of the IDEA’s
preference for mainstreaming in cases where a student cannot be educated
“satisfactorily in the regular education classroom.” 39
B.S. contends that his 2016 IEP violated the least restrictive
environment requirement by removing him from general education math and
placing him in a classroom with younger students. The district court rejected
this assertion, finding that there were valid reasons supporting the School
District’s decision to move B.S. out of general education math. We agree.
There is substantial support in the record, including testimony from
B.S.’s teachers, 40 to support the district court’s finding. Notably, B.S.’s
2016 IEP states that his “present level of educational performance” is
significantly below his grade placement, and that his IEP could not be
implemented in the general education setting “without eliminating essential
components of the general curriculum.” In situations like this, we have
refused to require general education teachers to “modify the[ir] curriculum
reoccurring” and that although “these measures were not 100% successful does not
establish that . . . [the student’s] IEP was not reasonably calculated to allow him to learn”).
38
E.R. ex rel. E.R. v. Spring Branch Indep. Sch. Dist., 909 F.3d 754, 771 (5th Cir.
2018) (citing 20 U.S.C. § 1412(a)(5)).
39
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1050 (5th Cir. 1989).
40
B.S.’s special education teacher, Ms. Gooch, testified that general education
math was causing B.S. frustration. Ms. Lockamy, B.S.’s other special education teacher,
also testified that B.S. did better with the younger group of students because he “felt like a
leader and a role model.” .
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beyond recognition . . . in the name of mainstreaming.” 41 Such a requirement
would be “unfair to the rest of the class” because although “regular
education instructors must devote extra attention to their [disabled]
students, we will not require them to do so at the expense of their entire
class.” 42
Additionally, the School District took steps to ensure that B.S. had as
much access as possible to his general education peers. B.S. continued to
attend “specials” in a general education setting and his placement in Ms.
Lockamy’s classroom with younger students allowed him to work on his own
goals while being in a class with other students. We therefore find that the
district court correctly held that the second Michael F. factor weighed in favor
of the School District.
3. Collaboration
B.S. asserts that there was no coordinated response by the School
District to address his behavioral issues. As evidence of this alleged lack of
coordination, B.S. contends that his IEP goals were not shared with Ms.
Lockamy and that Ms. Gooch kept the severity of his behavior to herself. The
district court rejected these assertions and found that there were “many
examples in the record of key stakeholders for [the School District] in this
case coordinating and collaborating.”
B.S.’s assertions about a lack of coordination are not supported by the
record. First, Ms. Lockamy’s testimony at the due process hearing
41
See Daniel R.R., 874 F.2d at 1050 (finding that the school district’s decision to
remove a student from the general education classroom did not violate the IDEA because
the student’s disability “slowed his development so that he is not yet ready to learn the
developmental skills offered in Pre-kindergarten” and therefore his teacher “would have
to alter 90 to 100 percent of the curriculum to tailor it to” the student’s needs).
42
Id. at 1051.
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contradicts B.S.’s assertion that she did not have access to his IEP. 43 Ms.
Lockamy testified that she had access to B.S.’s goals “on the system” and
that she had “long conversations” about his goals with Ms. Gooch. Second,
Ms. Gooch testified that although she did not specifically relay her concerns
over B.S.’s behavior to other school personnel in February of 2017, she did
ensure to document his behavior and that these documents were available to
others. The district court did not clearly err in finding that B.S.’s IEP was
created and implemented in a coordinated manner by key stakeholders.
Accordingly, the third Michael F. factor also weighs in favor of the School
District.
4. Demonstrated Benefits
The last Michael F. factor asks whether B.S. demonstrated positive
academic and non-academic benefits under his IEP. This Court has
emphasized that “evidence of an academic benefit militates in favor of a
finding that an IEP is appropriate.” 44
The district court agreed with the hearing officer that B.S. was making
appropriate progress under the circumstances, and that the benefits he
received from his IEP were meaningful. The court noted that B.S.’s teachers
testified in detail about B.S.’s “steady progress, albeit slow progress.” 45
43
At the hearing, Ms. Lockamy testified that when B.S. came to her in October for
reading and math, she only had B.S.’s IEP goals that related to those subjects, but that when
he began coming to her classroom more in February of 2017, she received a hard copy of all
of his IEP goals.
44
Klein, 690 F.3d at 399 (citing Adam J., 328 F.3d at 810).
45
For example, Ms. Lockamy testified that during the year B.S. “moved from very,
very beginning kindergarten reading level to almost an end-of-the-year kindergarten
reading level.” She also testified that B.S. improved in the following areas: reading
comprehension, spelling, social skills instruction, and math skills. This conclusion is
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Further, Ms. Lockamy described in depth B.S.’s academic improvement by
comparing his test scores from the beginning and the end of his third-grade
year.
B.S. discounts the district court’s findings of progress as de minimus
because his progress was below what is expected of his grade level. However,
“[w]hether advancement is so trivial or minor as to qualify as de minimis must
be evaluated in light of the child’s circumstances, and a court may determine
that aiming for small amounts of progress is appropriately ambitious given a
child’s unique needs.” 46 The district court therefore correctly relied on
B.S.’s teachers’ testimony, as well as the results of B.S.’s testing, to conclude
that he was making sufficient progress in light of his circumstances. 47
As far as non-academic benefits, the district court also found that B.S.
made progress on his behavioral goals to walk in the hallway without touching
the wall and being able to verbalize calming strategies. While it is undisputed
that B.S. continued to struggle with behavioral issues in the Spring of 2017,
we again reiterate that an IEP must simply “aim to enable the child to make
progress,” and that the “standard is not perfection.” 48 In short, the IDEA
further supported by Ms. Carroll’s testimony that B.S.’s achievement scores in third grade
were “consistent” with his cognitive ability.”
46
R.S., 951 F.3d at 337.
47
See id. at 336-37 (finding that plaintiff’s IEP provided sufficient academic benefits
after thoroughly reviewing his academic record and finding that although he “did not
display significant progress” in some areas, he displayed progress in other areas, as shown
by comparisons between his FIE scores administered three years apart).
48
E.R. ex rel. E.R. v. Spring Branch Indep. Sch. Dist., 909 F.3d 754, 769 (5th Cir.
2018) (internal quotation marks and citation omitted).
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does not entitle B.S. to an IEP that remediates his behavioral problems in
every instance. 49
Furthermore, despite B.S.’s behavioral problems, there is support for
the district court’s finding that B.S. received at least some non-academic
benefit from his IEP. In addition to making progress on his behavioral goals,
B.S. had no significant behavioral issues from November through February, 50
and after his IEP was amended in May, he was able to finish the school year
without any further problems. Also, in B.S.’s 2016 FIE, the LSSP noted that
he had “made marked strides in behavior since the time of his initial autism
evaluation.” Therefore, we find that the district court did not clearly error
in finding that B.S. achieved at least some academic and nonacademic
benefits as a result of his IEP.
In sum, this case is very fact specific given that the issues raised by
B.S. on appeal mostly require our review of credibility determinations made
by the hearing officer. After careful review of the record, we conclude that
those findings, credited by the district court, generally control the outcome
of this case. Accordingly, because all four Michael F. factors weigh in favor
of the School District we affirm the district court’s order dismissing B.S.’s
IDEA claim.
B. The ADA Claim
Title II of the ADA provides: “[N]o qualified individual with a
disability shall, by reason of such disability, be excluded from participation in
49
See Klein, 690 F.3d at 397-88 (explaining that the IDEA’s “ultimate statutory
goal” is “educational benefit, not solely disability remediation”).
50
Ms. Edmondson testified that B.S.’s Fall semester was “fairly smooth” despite
his “few behavior incidences” at the end of September. She also testified that after B.S.
returned after Christmas “he was doing really great” and that his teachers had “smooth
sailing until February.”
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or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.” 51 In addition to
prohibiting disability-based discrimination, the ADA also “impose[s] upon
public entities an affirmative obligation to make reasonable accommodations
for disabled individuals.” 52
To recover compensatory damages for a violation of Title II, B.S. must
show “that the discrimination was intentional.” 53 Although this Court has
not “delineate[d] the precise contours” 54 of the intentionality standard, we
have required “something more than ‘deliberate indifference.’” 55 In
determining what conduct rises to this level, we have emphasized that a
“critical component of a Title II claim for failure to accommodate . . . is proof
that ‘the disability and its consequential limitations were known by the
[entity providing public services.]’” 56 In short, “intentional discrimination
requires at least actual knowledge that an accommodation is necessary.” 57
The burden falls on the plaintiff “to specifically identify the disability
and resulting limitations,” and to request the necessary accommodation. 58
51
42 U.S.C. § 12132.
52
Bennett-Nelson v. La Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005); see also Jin
Choi v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 633 F. App’x 214, 215 (5th Cir. 2015)
(per curiam) (unpublished); Ball v. LeBlanc, 792 F.3d 584, 596 n.9 (5th Cir. 2015).
53
Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565, 574 (5th Cir.
2018) (citing Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir. 2002)).
54
Id. at 575.
55
Id. (quoting Delano-Pyle, 302 F.3d at 575).
56
Windham v. Harris Cnty., 875 F.3d 229, 236 (5th Cir. 2017) (quoting Jin Choi,
633 F. App’x at 215).
57
Smith v. Harris Cnty., 956 F.3d 311, 319 (5th Cir. 2020) (citing Cadena v. El Paso
Cnty., 946 F.3d 717, 724 (5th Cir. 2020)).
58
Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996).
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However, if a plaintiff fails to request an accommodation, “he can prevail
only by showing that ‘the disability, resulting limitation, and necessary
reasonable accommodation’ were ‘open, obvious, and apparent’ to the
entity’s relevant agents.” 59 We have described this latter method as a
“narrow exception.” 60
B.S. alleges that the police officers who responded to Ms. Gooch’s 911
call intentionally discriminated against him by failing to accommodate his
disabilities of autism and a speech impairment. It is undisputed that B.S.
never asked the officers for an accommodation. Thus, in order to survive a
motion to dismiss, B.S. must plausibly allege that his disabilities and resulting
limitations, as well as the reasonable accommodations, were open and
obvious to the officers. The district court found that even assuming B.S.’s
disabilities were open and obvious, B.S. did not allege that the limitations
resulting from his disabilities and the required reasonable accommodations
were open, obvious, and apparent.
Assuming arguendo that B.S.’s disabilities were open and obvious, we
agree with the district court that B.S. failed to plausibly allege that the
limitations from his disabilities and the necessary reasonable
accommodations were open, obvious, and apparent to the officers.
Regardless of whether Officer Young knew B.S. had a disability after asking
Ms. Kazda if B.S. “was diagnosed,” 61 “knowledge of a disability is different
59
Windham, 875 F.3d at 237 (quoting Taylor, 93 F.3d at 164).
60
Id. at 239.
61
B.S. alleges that Officer Young knew he had a disability because he asked Ms.
Kazda “if he [was] diagnosed?” Ms. Kazda did not respond.
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from knowledge of the resulting limitation” and “it certainly is different from
knowledge of the necessary accommodation.” 62
B.S.’s complaint is completely devoid of any allegation that the
officers understood what they needed to do to accommodate B.S. and instead
relies on conclusory assertions that the officers failed to take “reasonable
actions.” What exactly these “reasonable action[s]” would have included is
never spelled out, 63 which further undermines B.S.’s contention that the
appropriate accommodations that would keep both himself and others safe
were open and obvious to the officers in the moment.
The facts alleged in B.S.’s complaint, confirmed by the officers’ body
camera footage, 64 strongly support the district court’s finding. Unlike in
Phillips ex rel. J.H. v. Prator, 65 relied on by B.S., his conduct did not make it
obvious that he had autism or that he was unable to comprehend the
situation. 66 To the contrary, B.S. provided coherent, albeit uncooperative,
62
Windham, 875 F.3d at 238.
63
At oral argument, counsel for B.S. was unable to definitively explain what
additional actions the officers could have reasonably taken.
64
In considering a motion to dismiss, the court “must consider the complaint in its
entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the complaint by
reference,” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011) (citation omitted), and
is central to the party’s claims, New Orleans City v. Ambac Assur. Corp., 815 F.3d 196, 200
(5th Cir. 2016). Here, B.S. refers to the body camera footage in his complaint, and the
footage is central to his ADA claim. We therefore find it appropriate to consider the body
camera footage in reviewing B.S.’s claim. See Phillips, 2021 WL 3376524, at *1 n.1
(considering video footage that depicted the encounter between the student and the deputy
because the plaintiff referenced the video in her complaint and it was central to her ADA
claims).
65
No. 20-30110, 2021 WL 3376524 (5th Cir. Aug. 3, 2021) (unpublished).
66
Id. at *1 (finding that it was plausible the deputy knew an accommodation was
necessary because he watched J.H. stand motionless in the hallway with his head down and
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answers to the officers’ questions. And unlike the deputy in Phillips who
watched J.H.’s behavior for several minutes, neither officer here had a
chance to observe B.S.’s behavior before having to engage with him. Finally,
the officers’ efforts to interact with B.S. were far less extreme than the
response by the deputy in Phillips. 67 Far from tasing a student, the officers’
actions here indicate that they were doing their best to deescalate the
situation by calmly asking B.S. questions and gently handcuffing him to
provide safety to him and those in the room. Given these factual differences,
we find B.S.’s reliance on Phillips to be unpersuasive.
Accordingly, the district court correctly held that B.S. alleged
insufficient facts to show that the officers understood the limits imposed by
his disabilities and failed to accommodate them.
IV. CONCLUSION
For the above reasons, we AFFIRM the district court’s grant of
summary judgment against B.S. on his IDEA claim and its dismissal of B.S.’s
ADA claim under Rule 12(b)(6).
his fingers in his ears which constituted “clear signals that J.H. did not comprehend what
was happening”).
67
Id. (noting that when J.H. kicked a school administrator, the deputy tased him).
25