Houston ISD v. R, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 98-20546
_______________
HOUSTON INDEPENDENT SCHOOL DISTRICT,
Plaintiff-Counter Defendant-
Appellee,
VERSUS
BOBBY R.; JOYCE R.; and CAIUS R.,
Defendants-Counter Claimants-
Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
January 20, 2000
Before HIGGINBOTHAM and SMITH,
Circuit Judges, and FALLON, District
Judge.*
JERRY E. SMITH, Circuit Judge:
Caius R., a minor child, by and through his
parents, Bobby R. and Joyce R., initiated this
action against the Houston Independent
School District (“HISD”) in a claim before a
Texas Education Agency (“TEA”) hearing
officer. The TEA determined that HISD had
not provided Caius a “free appropriate public
education” as required by the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400,
et seq. (“IDEA”), and the officer ordered
HISD to make certain changes in Caius’s
education program. On appeal from the
TEA’s decision, the district court decided in
favor of HISD. Concluding that the district
provided a free appropriate public education in
compliance with the IDEA, we affirm.
I.
Caius attended school in HISD for
approximately seven years before being
removed to private school in 1997. Within
HISD, he struggled from the beginning, in
large part because of dyslexia. In kindergarten
and first grade, he experienced difficulties in
phonics. Although in 1992 HISD
recommended that he repeat the first grade,
preliminary evaluations of his need for special
education indicated that he did not qualify for
these special services. * District Judge of the Eastern District of
Louisiana, sitting by designation.

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2
During the summer preceding the 1992-93
school year, Caius’s parents sought an
independent evaluation of his learning abilities.
After conducting a battery of tests, a
University of Houston researcher found that
Caius suffered from dyslexia and attention
deficit disorder. Caius then enrolled in a
private school for a substantial portion of the
1992-93 year. Although HISD had
recommended repeating first grade, Caius was
placed in a second grade class.
In March 1993, Caius returned to HISD at
Mitchell Elementary and, in the fall of 1993,
began third grade there. After experiencing
more difficulties, he was referred in December
1993 for a special education evaluation, which
revealed deficiencies in reading, oral language,
and written language skills. Pursuant to the
IDEA, the HISD convened an Admission,
Review, and Dismissal (“ARD”) Committee in
January 1994 to determine the appropriate
means of addressing Caius’s learning disability.
Having found that his was speech
handicapped, the ARD Committee drafted an
Individual Education Plan (“IEP”) that called
for ten hours of reading and language resource
placement and one hour of speech therapy per
week. Caius continued under the January
1994 IEP during the remainder of the 1993-94
school year.
At the beginning of the 1994-95 year,
HISD placed Caius in the fourth grade. HISD
experienced some difficulties during that year
in implementing the speech therapy provision
of the IEP, so from January 18, 1995, through
May 17, 1995, a speech therapist was not on
staff at Mitchell Elementary. To compensate
Caius for the lost speech therapy, HISD
authorized extended-year services for him.
Consequently, during the summer following
the 1994-95 school year, Caius received
twenty-five hours in compensatory speech
therapy.
In the meantime, however, Caius’s parents
voiced objections regarding the
implementation of his IEP. In particular, they
complained of HISD’s failures to institute IEP
modifications such as highlighted texts,
modified tests, and taped lectures.
Before the 1995-96 year, HISD and Caius’s
parents engaged in extensive discussions
regarding the school he would attend.
Because it was determined that he learned
more readily when information was presented
in a multisensory fashion, his parents sought
placement at an HISD school that could
administer an Alphabetic Phonics (“AP”)
program. Although an alternative placement
could not be established, HISD agreed to
provide an itinerant teacher to instruct Caius at
Mitchell Elementary until a permanent teacher
skilled in AP could be found.
Caius began the AP program in the fall of
1995. Although his instructors changed, the
AP program was provided throughout the
1995-96 school year. Nonetheless, his parents
continued to criticize HISD’s implementation
of several modifications to the IEP.

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During the spring and fall of 1996, the
ARD Committee convened to develop an IEP
for Caius’s sixth grade year. Under the IEP,
he was placed at Codwell Elementary. The
plan included seven modifications to his
educational program: modified tests, taped
texts, highlighted texts, extended time for
assignments, shortened assignments, calculator
use, and taped assignments. Furthermore,
because no teacher at Codwell was trained in
AP techniques, HISD began a search for
another AP instructor for Caius.
Despite its efforts, for two months Caius
did not receive AP training. During that time,
his parents refused to accept the compensatory
AP services offered by HISD. Through their
complaints to HISD, they also questioned the
amount of progress Caius was making under
the IEP and the extent to which his teachers
were implementing the modifications to the
August 1996 IEP.
In October 1996, Caius’s parents sought
administrative review of the IEP. Following
two days of hearings in February 1997, the
TEA hearing officer filed written findings of
fact and conclusions of law, deciding that the
reading and language goals set forth in Caius’s
IEP’s were “reasonable and calculated to
provide . . . an educational benefit.” But she
also found that HISD had failed to implement,
“consistently or appropriately,” an AP
program, IEP modifications, or speech
therapy. The hearing officer thus concluded
that HISD’s failures in these areas had
deprived Caius of a “free appropriate public
education” under the IDEA.
Following entry of the hearing officer’s
decision, the parties failed to negotiate a new
IEP for Caius for the 1997-98 school year. In
response, his parents sought private
compensatory services during the summer of
1997, and, before the start of the 1997-98
year, his parents withdrew him from HISD and
placed him at a private school at their expense
and without HISD’s approval.
HISD appealed the TEA hearing officer’s
decision to the district court, which, on cross
motions for summary judgment, held that the
TEA had erred in its analysis of whether Caius
had indeed received a “free appropriate public
education” as required by the IDEA. The
court reasoned that he had shown
improvement in most areas of study and
therefore had received an educational benefit
in accordance with the goals of the IDEA.
The court then granted HISD’s motion for
summary judgment and denied Caius’s cross
motion for summary judgment. The court also
dismissed Caius’s counterclaim for
reimbursement for the costs of the private
compensatory services.
II.
Caius challenges the determination that
HISD provided him with a “free appropriate
public education” in accordance with the
IDEA, 20 U.S.C. § 1400, et seq. Specifically,
he points to HISD’s failure to provide a
speech therapist for a substantial portion of the
1994-95 term, its failure to provide an AP
program for approximately two months during
the beginning of the 1996-1997 year, and its
general failures consistently to provide
highlighted and taped texts in accordance with
the IEP.
HISD responds first by acknowledging the
failures summarized by Caius and by noting
that, as a result, there are no genuine issues of
material fact that would preclude summary
judgment. HISD disagrees, however, with the
legal conclusions to be drawn from those
failures. It argues that, rather than holding
that any failure to implement an element of an
IEP amounts to denial of a free appropriate
public education under the IDEA, we should
look to the overall educational benefit received
by the child and to whether the IEP was
substantially or materially implemented.
A.
The IDEA is designed to encourage state
and local education agencies to extend services
to children that are deemed learning disabled.
Under the statute, to receive federal funding,
a state must establish special education and
related services that “are provided in
conformity with the individualized education

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program required under section 1414(a)(5) of
this title.” 20 U.S.C. § 1401(17)(D) (emphasis
added). The term “individualized education
program” is defined as
a written statement for each child with a
disability developed in any meeting by a
representative of the local educational
agency . . . which statement shall includeSS
(A) a statement of the present levels of
educational performance of such child,
(B) a statement of annual goals,
including short-term instructional
objectives,
(C) a statement of the specific
educational services to be provided to
such child, and the extent to which such
child will be able to participate in regular
educational programs, . . .
(E) the projected date for initiation and
anticipated duration of such services,
and
(F) appropriate objective criteria and
evaluation procedures and schedules for
determining, on at least an annual basis,
whether instructional objectives are
being achieved.
20 U.S.C. § 1401(20).
The crafting of an IEP is subject to
extensive procedural and substantive
requirements. For instance, the IDEA
provides procedural safeguards that allow the
parents an opportunity to challenge the
establishment or implementation of the IEP in
an “impartial due process hearing which shall
be conducted by the State educational agency
. . . as determined by State law.” 20 U.S.C.
§ 1415(b)(2). In Texas, the hearing is
conducted before the TEA.
The IDEA also provides for civil actions
and jurisdiction in federal district court
“without regard to the amount in controversy.
In any action brought under this paragraph the
court shall receive the records of the
administrative proceedings, shall hear
additional evidence at the request of a party,
and, basing its decision on the preponderance
of the evidence, shall grant such relief as the
court determines is appropriate.” 20 U.S.C.
§ 1415(e)(2). As additional protection for the
parents and the disabled child, “during the
pendency of any proceedings conducted
pursuant to this section, unless the State or
local educational agency and the parents or
guardian otherwise agree, the child shall
remain in the then current educational
placement of such child.” 20 U.S.C.
§ 1415(e)(3)(A).
The Department of Education has
interpreted the IDEA to require each public
agency to “(1) Provide special education and
related services to a child with a disability in
accordance with the child’s IEP; and (2) Make
a good faith effort to assist the child to achieve
the goals and objectives or benchmarks listed
in the IEP.” 34 C.F.R. § 300.350(a) (emphasis
added). That interpretation provides,
however, that the IDEA “does not require any
agency, teacher, or other person be held
accountable if a child does not achieve the
growth projected in the annual goals and
benchmarks or objectives.” Id. § 300.350(b).
B.
The “free appropriate public education”
requirement of the IDEA requires tailoring to
the unique needs of the handicapped child by
means of an IEP. See Board of Educ. v.
Rowley, 458 U.S. 176, 181 (1992).
“Noticeably absent from the language of the
statute is any substantive standard prescribing
the level of education to be accorded
handicapped children.” Id. at 189. After a
lengthy analysis of the statute, its purposes,
and of the legislative intent with respect to the
provision of educational services to disabled
children, the Rowley Court held that an
“‘appropriate education’ is provided when
personalized educational services are
provided.” Id. at 197.
Accordingly, the IDEA “generates no
additional requirement that the services so

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provided be sufficient to maximize each child’s
potential.” Id. at 198. This, the Court opined,
would be “further than Congress intended to
go.” Id. at 199. Instead, the IDEA is aimed at
providing disabled children “access” to a
public education, though that access must still
“be sufficient to confer some educational
benefit upon the handicapped child.” Id. at
200 (emphasis added). In the end, then, “the
‘basic floor of opportunity’ provided by the
Act consists of access to specialized
instruction and related services which are
individually designed to provide educational
benefit to the handicapped child.” Id. at 201.
Next, the Court noted that while the
determination whether children are receiving
sufficient educational benefits to satisfy the
requirements of the IDEA “presents a more
difficult problem,” a court’s inquiry in suits
brought under § 1415(e)(2) (as here) should
be analyzed under a two-pronged framework.
“First, has the State complied with procedures
set forth in the Act? And second, is the [IEP]
developed through the Act’s procedures
reasonably calculated to enable the child to
receive educational benefits?” Id. at 206-07
(emphasis added). The Court noted that under
the second prong, “the achievement of passing
marks and advancement from grade to grade
will be one important factor in determining
educational benefit.” Id. at 207 n.28.
Caius does not challenge the IEP or any
other HISD actions on the basis of the first
prong of the Rowley inquirySSthat is, he does
not assert that HISD did not comply with the
lengthy procedures prescribed by the IDEA.
And it is doubtful that such a challenge would
have any merit.1 Therefore, the issue is
whether the IEP was “reasonably calculated to
enable [Caius] to receive an educational
benefit.”
1 See Decision of the Hearing Officer,Docket
No. 089-SE-1096, noting:
In this case, issues related to any procedural
complaints were withdrawn prior to the
beginning of the hearing. Indeed, the
evidence showed that Caius’ parents were
active participants in each and every ARD
meeting and that their recommendations and
(continued...)
(...continued)
requests in both programming and
placement decisions were often accepted by
the ARD Committee. The IEP’s at issue
were the result of collaborative efforts
between parents and school, and I find,
therefore, that the district did comply with
the procedural requirements of the IDEA.

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III.
In Cypress-Fairbanks Indep. Sch. Dist. v.
Michael F., 118 F.3d 245, 247-48 (5th Cir.
1997), we summarized the standard under
Rowley. An IEP
need not be the best possible one, nor
one that will maximize the child’s
educational potential; rather, it need
only be an education that is specifically
designed to meet the child’s unique
needs, supported by services that will
permit him “to benefit” from the
instruction. In other words, the IDEA
guarantees only a “basic floor of
opportunity” for every disabled child,
consisting of “specialized instruction and
related services which are individually
designed to provide educational
benefit.” Nevertheless, the educational
benefit to which the Act refers and to
which an IEP must be geared cannot be
a mere modicum or de minimis; rather,
an IEP must be “likely to produce
progress, not regression or trivial
educational advancement.” In short, the
educational benefit that an IEP is
designed to achieve must be
“meaningful.”
(Internal citations omitted.)
When a district court reviews a state
hearing officer’s decision in an impartial due
process hearing under the IDEA, it must
receive the record of the administrative
proceedings and is then required to take
additional evidence at the request of any party.
20 U.S.C. § 1415(e)(2). It must accord “due
weight” to the hearing officer’s findings, see
Rowley, 458 U.S. at 206, but must ultimately
reach an independent decision based on a
preponderance of the evidence.” Cypress-
Fairbanks, 118 F.3d at 252. Thus, the district
court’s review is “virtually de novo.” Id.
Our review of the district court is a mixed
question of fact and law that is reviewed de
novo, but the underlying fact-findings, “such as
findings that a disabled student obtained
educational benefits under an IEP, are
reviewed for clear error.” Id. A party
attacking the appropriateness of an IEP
established by a local educational agency bears
the burden of showing why the IEP and
resulting placements were inappropriate under
the IDEA. Id.
A.
In Cypress-Fairbanks, we set forth four
factors that serve as an indication of whether
an IEP is reasonably calculated to provide a
meaningful educational benefit under the
IDEA. These factors are whether
(1) the program is individualized on the
basis of the student’s assessment and
performance;
(2) the program is administered in the
least restrictive environment;
(3) the services are provided in a
coordinated and collaborative manner by
the key “stakeholders”; and
(4) positive academic and non-academic
benefits are demonstrated.
118 F.3d at 253.
Correctly, HISD argues in its brief, and the
district court noted, that only the last two of
these factors are seriously in question. First,
Caius does not argue that the IEP was not
individualized in accordance with the first
factor; indeed, such an argument would seem
unavailing where the TEA hearing officer had
already concluded that the IEP was
“reasonably calculated to provide Caius with a
meaningful educational benefit.” Second, the
“least-restrictive-environment” factor should
be viewed in light of the IDEA’s “preference
f o r ‘ m a i n s t r e a m i n g ’ h a n d i c a p p e d
c h i l d r e n S S e d u c a t i n g t h e m w it h
nonhandicapped children.” Rowley, 458 U.S.
at 181 n.4. Because Caius was
“mainstreamed” and does not now challenge
the IEP on the ground that it was not
implemented in the least restrictive means, this
second factor is likewise not at issue.

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The third and fourth factors, however, call
for a more thorough analysis. The
requirement that the educational services be
provided in a “coordinated and collaborative
manner by the key stakeholders” presents a
more difficult issue. On the one hand, the
district court concluded that HISD met this
requirement because “HISD provided the
modifications and services outlined in Caius’
IEP, allowed Caius’ parents to air grievances,
and regularly conducted ARD Committee
meetings to evaluate Caius’ progress under the
IEP.” While the court opined that the “most
significant failing” in this area involved the fact
that for substantial portions of the 1994-95
academic year a speech therapist was not
available at Mitchell Elementary, the court
nonetheless felt that the compensatory services
offered the following summer were sufficient
to remedy any shortcoming. And with respect
to HISD’s inability to provide an AP program
for two months during the beginning of the
1996-97 year, HISD argues that the school
offered compensatory AP services (which
Caius’s parents refused) until the school could
hire an AP teacher. The court agreed with
HISD with respect to the AP services, though
it did not carefully analyze the issue.
On the other hand, the hearing officer
concluded that HISD had failed on both
accounts. That is, she concluded that the
compensatory speech therapy services
provided by HISD did not cure its earlier
failure to implement that portion of the IEP
and that the HISD had agreed to provide AP
services and had failed to do so in a consistent
and proper manner. These conclusions would
support Caius’s argument that HISD failed to
provide the services in a “coordinated”
manner, as would his assertion that HISD did
not provide highlighted or taped texts in a
consistent manner.
The district court’s primary reason for
overturning the hearing officer’s conclusions
seems to be its belief that local school agencies
should retain some flexibility in scheduling
services and, when necessary, providing
compensatory services. The court pointed to
a Department of Education interpretive
response in noting that, “as long as there is no
change in the overall amount, some
adjustments in scheduling [IEP] services
should be possible (based on the professional
judgment of the service provider) without
holding another IEP meeting.” 34 C.F.R. part
300, app. C, question 51 (1997). Accordingly,
the court disagreed with the TEA hearing
officer and concluded that the compensatory
speech therapy services were sufficient.
This conclusion is correct, particularly in
light of the Department of Education’s
interpretive response. Moreover, with respect
to the speech therapy and AP services, the
district court invited us to consider Gillette v.
Fairland Bd. of Educ., 725 F. Supp. 343 (S.D.
Ohio 1989), rev’d on other grounds, 932 F.2d
551 (6th Cir. 1991), in which the court held
that a local education agency’s failure to
provide all the services and modifications
outlined in an IEP does not constitute a per se
violation of the IDEA. In Gillette, the court
found that the local agency had provided a free
appropriate education when “significant
provisions of the IEP were followed,” even
though the petitioner had clearly demonstrated
that portions of the IEP were not implemented
at all. See id. at 347-48 (emphasis added).
The same can be said hereSSi.e., the significant
provisions of Caius’s IEP were followed, and,
as a result, he received an educational benefit.2
The approach taken in Gillette seems
reasonable, particularly in light of Rowley’s
flexible approach. Therefore, we conclude
that to prevail on a claim under the IDEA, a
party challenging the implementation of an IEP
must show more than a de minimis failure to
implement all elements of that IEP, and,
2 While consideration of any educational benefit
received might arguably seem to conflate the third
and fourth prongs of the Cypress-Fairbanks
inquiry, determination of what are “significant”
provisions of an IEP cannot be made from an
exclusively ex ante perspective. Thus, one factor
to consider under an ex post analysis would be
whether the IEP services that were provided
actually conferred an educational benefit.

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instead, must demonstrate that the school
board or other authorities failed to implement
substantial or significant provisions of the IEP.
This approach affords local agencies some
flexibility in implementing IEP’s, but it still
holds those agencies accountable for material
failures and for providing the disabled child a
meaningful educational benefit.
The fourth and final factor under Cypress-
Fairbanks is whether there have been
demonstrable academic and non-academic
benefits from the IEP. The district court
framed the issue under this inquiry as what
should be the appropriate manner for
measuring academic advancement under the
IDEA. Caius claimed that a child’s percentile
scores were the best measure of academic
performance, while HISD argued that passing
marks and advancement from grade to grade
were sufficient indicia to satisfy the IDEA.
And on this dispute the district court is correct
that a disabled child’s development should be
measured not by his relation to the rest of the
class, but rather with respect to the individual
student, as declining percentile scores do not
necessarily represent a lack of educational
benefit, but only a child’s inability to maintain
the same level of academic progress achieved
by his non-disabled peers. As with the
argument in Rowley that an IEP must
maximize a child’s potential, the argument that
Caius should not experience declining
percentile scores may be an unrealistic goal,
and it is a goal not mandated by the IDEA.
Instead, the district court was correct to
focus on the fact that Caius’s test scores and
grade levels in math, written language, passage
comprehension, calculation, applied problems,
dictation, writing, word identification, broad
reading, basis reading cluster and proofing
improved during his years in HISD.3 These
improvements are not trivial, and we cannot
say that the district court committed “clear
error” in its factual determination that Caius
received an educational benefit from his IEP.
See Cypress-Fairbanks, 118 F.3d at 252.
The affidavits submitted by Caius do not
change our conclusion. First, Nancy
LaFevers, a licensed language pathologist who
examined Caius on two occasions, opined that
his progress was slower than what she would
have expected under “appropriately
implemented [AP] training” and that his
progress in word attack skills was de minimis.
Even accepting that characterization of his
improvement in word attack, it is not
necessary for Caius to improve in every area to
obtain an educational benefit from his IEP.
Second, Caius submitted an affidavit from
Donna Weinberg, the owner and director of
the privately-run Cliffwood School where he
began attending in 1997. She noted only that
Caius has progressed “nicely” since his arrival
at Cliffwood School and that he was adjusting
to another way of approaching his studies.
These statements say nothing about his
development or lack thereof, during his years
3 HISD employed the widely utilized and
accepted Woodcock Johnson intelligence and
achievement test to indicate Caius’s academic
progress. Caius’s test scores showed the following
changes from 1993 to 1995: (1) Math scores
improved from the 1.7 grade level to 3.1; (2)
(continued...)
(...continued)
written language improved from the 1.5 grade level
to 1.9; (3) passage comprehension went from 1.7 to
2.2; (4) calculation rose from 1.4 to 3.3; (5)
applied problems improved from 2.0 to 3.0; (6)
dictation went from 1.6 to 1.8; (7) writing
improved from 1.4 to 2.6; (8) word identification,
basic reading skills, and letter identification rose
from 1.8 to 2.1; and (9) word attack rose from the
level of a seven-month kindergarten student to
grade level 1.8.
From 1995 to 1996, Caius showed the
following improvements: (1) Broad reading
increased from 2.1 to 3.3; (2) word identification
from 2.1 to 2.8; (3) passage comprehension from
2.2 to 3.9; (4) math from 3.1 to 4.4; (5) calculation
from 3.3 to 5.0; (6) applied problems from 3.0 to
3.6; (7) written language from 1.9 to 2.9; (8)
dictation from 1.8 to 2.8; (9) writing samples from
2.6 to 3.3; (10) basic reading cluster from 2.1 to
2.8; and (11) proofing from 2.3 to 2.6. Only word
attack remained the same, at the 1.8 grade level.

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in HISD, and, as a result, they do nothing to
establish that he did not receive an educational
benefit from the IEP.
Finally, Caius offered the affidavit of Jean
White, the owner and operator of Educere,
where Caius received private tutoring from
White in 1997. Again, like Weinberg’s
statements, White’s affidavit does not establish
that Caius received no educational benefit
from HISD. Instead, her affidavit would, at
best, support an argument that the IEP
developed for Caius did not maximize his
educational potential. But as Rowley held, the
IDEA does not require maximization of a
disabled student’s educational potential.
There is no genuine issue of material fact
about whether Caius received an educational
benefit from the IEP, as demonstrated by the
objective evidence of increased scores and
grade levels. And because there were no
material issues of fact presented under the
other three Cypress-Fairbanks criteria, the
district court was correct in finding that Caius
received a free appropriate public education in
accordance with the IDEA.
B.
Likewise, the court was correct to reject
Caius’s claims for reimbursement. Although
20 U.S.C. § 1415(e)(3)(A) provides that
“during the pendency of any proceedings
conducted pursuant to this section, . . . the
child shall remain in the then current
educational placement of such child,” “parents
who unilaterally change their child’s placement
during the pendency of review proceedings,
without the consent of state or local school
officials, do so at their own financial risk. If
the courts ultimately determine that the IEP
proposed by the school officials was
appropriate, the parents would be barred from
obtaining reimbursement for any interim period
in which their child’s placement violated
§ 1415(e)(3).” School Committee v.
Department of Educ., 471 U.S. 359, 373-74
(1985). Because HISD did not consent to
Caius’s transfer to private school, the district
court’s dismissal was appropriate.
IV.
In sum, we find that the IEP was reasonably
calculated to provide Caius a meaningful
educational benefit, in accordance with the
IDEA. Moreover, he received that benefit, as
demonstrated by his increased test scores in a
variety of areas. There is also no evidence that
HISD consented to his transfer to private
school during the pendency of this appeal.
Therefore, the district court was correct in
reversing the decision of the hearing officer, in
holding that Caius was not denied a “free
appropriate public education,” and in denying
Caius’s claims for reimbursement.
AFFIRMED.

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