REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20221
CYPRESS-FAIRBANKS INDEPENDENT
SCHOOL DISTRICT,
Plaintiff-Appellee
versus
MICHAEL F. b/n/f/ MR. AND
MRS. BARRY F.,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
July 15, 1997
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants Michael F., by his next friend and
parents, Mr. and Mrs. Barry F., (“Michael’s parents”) appeal from
the final judgment of the district court in favor of Plaintiff-
Appellee Cypress-Fairbanks Independent School District (“Cy-Fair
ISD”). The action arose when Michael’s parents, invoking the
Individuals with Disabilities Education Act (“IDEA”),1 sought
reimbursement from Cy-Fair ISD for the costs they incurred in
placing their disabled child, Michael, in a full-time private
residential education and treatment facility. The school district
refused Michael’s parents’ request, and they appealed
administratively to the Texas Education Agency (“TEA”), whose
hearing officer ordered reimbursement, finding that (1) the
educational program crafted for Michael by Cy-Fair ISD was
inappropriate under the IDEA, and (2) Michael’s placement at a
specialized private residential school by his parents was
appropriate. After conducting further fact finding, the district
court reversed the hearing officer’s decision and also awarded
costs to the school district. Concluding on the basis of the
entire administrative and judicial record that the district court
committed no reversible error when it reversed the hearing
officer’s decision, we affirm the court’s decision on
reimbursement, but modify in part its award of costs to the school
district and affirm that award as modified.
I
BACKGROUND
20 U.S.C. § 1400 et seq. (1997). We note that the IDEA was
recently amended by Congress. See Individuals with Disabilities
Education Act Amendments of 1997, P.L. No. 105-17, June 4, 1997, 11
Stat. 37. As all of the events giving rise to this action occurred
before the enactment of the amendments, however, we need not
consider their effect in this appeal.
2
A. Statutory Framework of the IDEA
Being a local educational agency responsible for complying
with the IDEA as a condition of the State of Texas’ receipt of
federal education funding, Cy-Fair ISD must (1) provide each
disabled child within its jurisdictional boundaries with a “free
appropriate public education” tailored to his unique needs,2 and
(2) assure that such education is offered, to the greatest extent
possible, in the educational “mainstream,” that is, side by side
with non-disabled children, in the least restrictive environment
consistent with the disabled student’s needs.3 The “free
appropriate public education” that a disabled student is entitled
to receive under the IDEA must be tailored to his particular needs
by means of an “individual educational program” (“IEP”), 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.4
In Texas, the persons charged with preparing an IEP are known
collectively as an Admissions, Review and Dismissal Committee (“ARD
Committee”).
The “free appropriate public education” tailored by an ARD
Committee and described in an IEP, however, need not be the best
20 U.S.C. §§ 1400(c) and 1412(1); Teague Indep. Sch. Dist. v.
Todd L., 999 F.2d 127, 128-29 (5th Cir. 1993).
Id.; 20 U.S.C. § 1412(5).
20 U.S.C. § 1401(20).
3
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.5 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.”6
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;7 rather, an IEP must be “likely to produce progress, not
regression or trivial educational advancement.”8 In short, the
educational benefit that an IEP is designed to achieve must be
“meaningful.”9
When a parent or guardian challenges the appropriateness of an
IEP crafted by a state or local education agency and the resulting
educational placement, a reviewing court’s inquiry is generally
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist.,
Westchester County v. Rowley, 458 U.S. 176, 188-89 (1982).
Id. at 201.
Oberti v. Board of Educ. of Borough of Clementon Sch. Dist.,
995 F.2d 1204, 1213 (3rd Cir. 1993).
Board of Educ. of East Windsor Regional Sch. Dist. v.
Diamond, 808 F.2d 987, 991 (3rd Cir. 1986).
Polk v. Central Susquehannna Inter. Unit 16, 853 F.2d 171,
182 (3rd Cir. 1988), cert. denied, 488 U.S. 1030 (1989); see also
Rowley, 458 U.S. at 192.
4
twofold. It must ask first whether the state or local agency
complied with the procedures set forth in the Act, and if so
whether “the individualized educational program developed through
the Act’s procedures [was] reasonably calculated to enable the
child to receive educational benefits?”10 In those instances when
a suitable or “appropriate” public educational placement is not
available for a disabled child within a state or local school
district, the district must pay the costs of sending the child to
an appropriate private institution.11
In School Comm. of Town of Burlington, Mass. v. Department of
Educ. of Mass.,12 the Supreme Court held that a reviewing court may,
in the exercise of the equitable authority granted to it under the
IDEA, order public school authorities to reimburse parents or
guardians of a disabled child for their expenditures on private
schooling when they unilaterally remove the child from public
education and place the child in private schooling. But
reimbursement may be ordered in such situations only if the parents
or guardians establish that (1) an IEP calling for placement in a
public school was inappropriate under the IDEA, and (2) the private
Id. at 201.
Jenkins v. Squillacote, 935 F.2d 303 305 (D.C. Cir. 1991)
(citing School Comm. of Town Burlington, Mass. v. Dep’t of Educ. of
Mass., 471 U.S. 359, 369 (1985)); Alamo Heights Indep. Sch. Dist.
v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986).
471 U.S. 359, 369 (1985).
5
school placement by the parents was proper under the Act.13 If the
reviewing court determines that the school district’s IEP was
appropriate, it need not reach the issue of the appropriateness of
the private placement by the parents.14
B. Particular Facts and Proceedings
At an early age, Michael F. was diagnosed with, and began to
receive medication for, Attention Deficit Hyperactivity Disorder
(“ADHA”). Based on this condition, Michael was classified as
“other health impaired” and was thus entitled to receive
educational services under the IDEA from Cy-Fair ISD after he and
his family moved there in the summer of 1992.
Michael enrolled as a sixth grader at Cy-Fair ISD’s Hamilton
Intermediate School (Hamilton) for the 1992-93 school year. During
this school year, Michael was diagnosed with Tourette’s Syndrome
(“Tourette’s”), a neurological or psychiatric behavior disorder
typified by involuntary motor and vocal ticks. Michael’s case of
Tourette’s is manifested by symptoms of (1) hyperactivity and
decreased attention, (2) obsessive compulsive behavior, (3) rapid
mood swings, and (4) ticks and twitches.
Acting through an ARD Committee convened in August 1992, Cy-
Id. at 370; see also Florence County Sch. Dist. Four v.
Carter, 114 S.Ct. 361, 366 (1993). Reimbursement will be permitted
under Burlington when unilateral placement by parents is generally
found to be appropriate, even though it is not “the exact proper
placement required under the Act.” Alamo Heights, 790 F.2d at
1161.
Teague, 999 F.2d at 132.
6
Fair ISD instituted a provisional IEP for Michael’s 1992-1993
school year at Hamilton. Under this initial IEP, Michael attended
regular classes and had access to a “content mastery class.” In
October of 1992, the ARD Committee supplemented Michael’s IEP with
a “behavioral plan,” under which Michael’s teachers could
discipline him with “time-out” and “cooling off” periods when he
became agitated, send him to counseling sessions with the assistant
principal, or send him to special discipline management classes.
Michael’s parents approved both the initial IEP and the October
behavioral plan.
Michael’s deportment problems ebbed and flowed throughout the
1992-93 school year. During the fall semester, his misbehavior
consisted mainly of relatively minor disruptions such as yelling
inappropriately on the bus and in class, calling other students and
himself gay, touching students on the legs in a sexual way, talking
back to his teacher, licking his books and papers in class, one
scuffle, and one fight. This behavior landed Michael in the
principal’s office, detention hall, or discipline management class
on numerous occasions and also resulted in several temporary
suspensions from the school bus.
Beginning in January of 1993, however, when Michael was first
diagnosed with Tourette’s and his medications were juggled in an
attempt to reduce the severity of his Tourette’s’ symptoms, his
behavior worsened. Not only did he continue to disrupt class and
cause trouble elsewhere in the school environment, but Michael
7
increasingly became involved in fights, and on February 15 and 17
—— just when a powerful and potentially beneficial drug with strong
side effects was being introduced into Michael’s medication regimen
—— his temper flared in two physically violent episodes. As a
result of these episodes, Michael was removed from school on an
emergency basis and faced possible expulsion until the ARD
Committee determined, after receiving reports from Michael’s
attending psychiatrist and psychologist, that Michael’s misbehavior
was directly related to his disability. Agreeing with the
recommendation of Michael’s psychiatrist, the ARD Committee
assigned Michael to a homebound placement for approximately six
weeks so that his doctors could complete medication trials and
stabilize his medical treatment, after which the Committee could
reevaluate Michael’s IEP.
Just before Michael’s outburst of physically violent behavior
in mid-February, however, the ARD Committee had resolved that
Michael’s needs would be better addressed with a more consistent
behavioral structure throughout the day. It had, therefore, placed
him in a self-contained, adaptive behavior classroom for three
subjects (English/Language Arts, Math, and Social Studies),15 while
leaving him in regular education classes for Science and Physical
An adaptive behavior class is specifically designed to help
students learn to control inappropriate behavior. The student
stays in the same classroom for several subjects, and a level point
structure is used which enables students to gain rewards throughout
the class period by exhibiting appropriate behavior.
8
Education (“P.E.”) The ARD Committee also supplemented Michael’s
program by providing him with a social behavior curriculum in his
adaptive behavior classes, psychological counseling services, and
a discipline contingency plan.
When Michael returned to Hamilton on April 2, he was again
placed in a slightly expanded version of the adaptive behavior
program that he had only briefly begun in mid-February. Michael’s
disruptive and aggressive behavior continued more or less unabated
for the remainder of the school year, resulting in several short
suspensions, including one for the last two days of school after he
announced in class that he was going to kill his mother, spat in a
student’s face, hit the student, and directed obscene language at
his teacher.
When the ARD Committee convened on May 26, 1993 to review
Michael’s situation and plan for the next school year, it learned
that Michael was passing all of his courses and had made progress
towards achieving all of the academic goals listed in his IEP, but
had not yet achieved mastery in any academic area except for
general science. On the deportment front, Michael’s adaptive
behavior teacher noted that Michael was able to refocus after
incidents of misconduct. Largely at the insistence of his parents
who feared that his continued exposure, in adaptive behavior
classes, to other children with emotional and behavioral problems
would harm Michael, the ARD Committee determined that Michael could
be placed in the regular education program at his local junior high
9
school for the 1993-94 school year. Michael’s parents and the ARD
Committee hoped that the combined effect of a new school, the
intervening summer recess, and attention to medication would
improve Michael’s behavior. Michael’s IEP for the impending school
year, however, still included a number of support services and
plans specifically designed to address Michael’s behavioral
problems. Among these were a discipline contingency plan for
teachers to use in dealing with Michael’s conduct, a behavioral
intervention plan, psychological counseling services, a tracking
teacher to monitor Michael’s progress, and a handpicked team of
teachers who were to receive training on how to cope with Michael’s
disabilities and behavior. At the conclusion of the meeting,
Michael’s parents signed the Committee’s report, noting their
agreement with the IEP and Michael’s placement for the 1993-1994
school year.
Over the summer, Michael’s behavior at home deteriorated to
the point that in late July his parents considered following his
psychologist’s advice and hospitalizing him or placing him in a
summer program at a residential treatment center. But Michael’s
parents ultimately chose to keep him at home for the duration of
the summer.
In August 1993, Michael began seventh grade at Cy-Fair ISD’s
Bleyl Junior High School (“Bleyl”). During his first month of
school, he continued to disrupt class with some frequency,
exhibited disrespect for and even directed insults at authority on
10
occasion, and several times became entangled in fights. His
misbehavior resulted primarily in “time-outs,” detention hall
assignments and “cooling off” sessions at the assistant principal’s
office, but on three occasions he was sent home from school for the
rest of the day.
In light of these continuing behavioral problems, the ARD
Committee convened a meeting on October 4, 1993, which was attended
by Michael’s parents, the chairman of the Special Education
Department at Bleyl, a psychologist from the school district who
had worked with Michael, an educational diagnostician from the
school district, the assistant principal at Bleyl responsible for
Michael, and Michael’s tracking teacher. The Committee was
informed that, although Michael was passing every course but one
and was receiving satisfactory conduct marks in every class but
two, he was having difficulty turning in homework assignments in
the majority of his courses and was still experiencing behavioral
problems. The Committee therefore altered Michael’s IEP, placing
him in adaptive behavior classes for Math, English/Language Arts,
and Texas History and leaving him in regular education classes for
Science, Reading, Industrial Technology, Speech, and P.E. The
Committee also determined that Michael was eligible for an optional
content mastery class and modified his discipline contingency plan
by providing teachers with the option of sending Michael to a
discipline management class for the remainder of a class period, as
opposed to an emergency removal from class, when his misbehavior
11
escalated. Once again, Michael’s parents approved the IEP that
resulted from this meeting.
On the very next day of school, however, before he had even
begun the new adaptive behavior program designed by the ARD
Committee, Michael got in a fight with a girl in class and, before
the fight was broken up, had pinned the girl to the floor with his
knee and pulled out some of her hair. As a result of this
incident, Michael was “emergency removed” for the remainder of that
school day and the next day. Michael’s parents perceived this
incident as a serious escalation of Michael’s behavioral problems
and therefore renewed their previous consideration of alternative
placements for Michael, including a residential psychiatric
institution.
On October 7, 1993, Michael began his partial placement in
adaptive behavior classes. He continued to misbehave on the school
bus, disrupt classes on occasion, and in a few instances refuse to
suit up for P.E., all of which necessitated “time-outs” and
“cooling off” sessions with the assistant principal. Still, his
physical aggression from this date forward until his removal from
Bleyl consisted of but a single scuffle in P.E. Furthermore,
during the remainder of his time at Bleyl, he was only emergency
removed from school once, for half a day, after refusing to take
medication and being disrespectful to a school nurse. On his own
volition, Michael later apologized to the nurse for his behavior.
Throughout this period, Michael ate lunch in the school cafeteria
12
unattended and passed through the school hallways without being
escorted by school staff.
Michael’s academic performance during his final month at Bleyl
was inconsistent but far from hopeless. A progress report issued
on October 26 for the first nine weeks of school indicated that
Michael was failing or had incompletes in all but one subject.
Nevertheless, Michael’s final report card from Bleyl, issued in
November after he was removed by his parents, reflected that
Michael had turned in previously incomplete assignments and was
again passing in his three adaptive behavior classes (Math,
English/Language Arts, and Texas History) and in one other academic
course (Industrial Technology), was close to passing in two others
(Reading and Science), and was only clearly failing in one
(Speech). As discussed more fully below, Michael’s teachers and
the assistant principal have offered sensitive and detailed
assessments of his academic and behavioral performances during his
enrollment of approximately two months at Bleyl.
Michael’s parents removed him from Bleyl and Cy-Fair ISD on
November 4, 1993. On November 8, he was admitted to the Provo
Canyon School (“Provo Canyon”), a 24-hour residential treatment
center located in Provo, Utah. Michael remained at Provo Canyon
until February 11, 1994, when his parents brought Michael back home
because they could no longer afford the private institution.16
Provo Canyon School is approved by the Utah State Board of
Education, the California State Board of Education, the Wyoming
13
Meanwhile, on November 18, 1993, an ARD Committee meeting had
been convened to consider Michael’s parents’ request that Cy-Fair
ISD approve Michael’s placement at Provo Canyon and reimburse them
for the costs of the placement. The ARD Committee modified
Michael’s IEP slightly, in absentia, by deleting Speech class from
his curriculum and substituting a “social behavior” class and by
deleting the requirement that he change clothes for P.E. But the
Committee did not accede to Michael’s parents’ request that the
school district approve Michael’s educational placement at Provo
Canyon and reimburse them for the costs of this placement. The
Committee concluded that his partial placement in the adaptive
behavior classroom at Bleyl was the least restrictive environment
in which he could receive an appropriate public education under the
IDEA.
As was their right under the IDEA,17 Michael’s parents sought
review of the school district’s denial of their request for
reimbursement in an impartial due process hearing before the TEA.
A TEA hearing officer conducted eleven days of hearings in April
1993 and, in a lengthy opinion issued on June 17, 1994, found that
(1) the IEPs developed by Cy-Fair ISD for Michael’s 1993-1994
school year were inappropriate, (2) Michael’s placement at Provo
Canyon was appropriate, and (3) Michael’s parents were therefore
State Board of Education, and the Joint Commission for
Accreditation of Hospitals.
See 20 U.S.C. § 1415(b)(2).
14
entitled to reimbursement from Cy-Fair ISD for the $15,978.20 costs
of the educational and related services (but not the medical
services) Michael received at Provo Canyon.
The school district in turn exercised its prerogative under
the IDEA and appealed this decision to the United States District
Court for the Southern District of Texas.18 After a one day hearing
in which it received additional evidence, the district court
reversed the hearing officer’s decision,19 and, in a separate order,
awarded $6,770.05 in costs to the school district as a matter of
course under Rule 54(d)(1).20 Michael’s parents have timely
appealed from the district court’s final judgment and its order
awarding costs.
II
ANALYSIS
A. Standard of Review
When a federal district court reviews a state hearing
officer’s decision in an impartial due process hearing under the
IDEA, the court must receive the record of the administrative
proceedings and is then required to take additional evidence at the
See 20 U.S.C. § 1415(e)(2).
931 F.Supp. 474 (S.D. Tex. 1995).
Id. at 482-84.
15
request of any party.21 Although the district court must accord
“due weight” to the hearing officer’s findings,22 the court must
ultimately reach an independent decision based on a preponderance
of the evidence.23 Accordingly, the district court’s “review” of
a hearing officer’s decision is “virtually de novo.”24 Indeed,
given its adducing of new evidence, even evidence of matters that
have occurred since the administrative hearing under review, the
district court proceeding under the IDEA is a hybrid, akin to a
“trial de novo.”
We, in turn, review de novo, as a mixed question of law and
fact, a district court’s decision that a local school district’s
IEP was or was not appropriate and that an alternative placement
was or was not inappropriate under the IDEA.25 The district court’s
findings of underlying fact, such as findings that a disabled
student obtained educational benefits under an IEP, are reviewed
for clear error.26 Finally, we note that in this circuit a party
attacking the appropriateness of an IEP established by a local
20 U.S.C. § 1415(e)(2).
Rowley, 458 U.S. at 206.
20 U.S.C. § 1415(e)(2); Teague, 999 F.2d at 131.
Id.
Id.; Christopher M. v. Corpus Christi Indep. Sch. Dist., 933
F.2d 1285, 1289 (5th Cir. 1991)); see also Salley v. St. Tammany
Parish School Bd., 57 F.3d 458, 462 (5th Cir. 1995).
Teague, 999 F.2d at 131; Christopher M., 933 F.2d at 1289.
16
educational agency bears the burden of showing why the IEP and the
resulting placement were inappropriate under the IDEA.27
B. The Appropriateness of the IEP’s
As it is undisputed that Cy-Fair ISD complied with the
procedural requirements of the IDEA in drafting and implementing
Michael’s IEP’s, Michael’s parents may only recover the costs they
incurred in unilaterally placing Michael at Provo Canyon if they
establish that (1) the IEPs in effect at the time that Michael was
removed from Cy-Fair ISD and was in residence at Provo Canyon ——
namely the October 4, 1993 and November 18, 1993 IEPs —— were not
reasonably calculated to provide Michael with a meaningful
educational benefit, and (2) the parents’ placement of Michael at
Provo Canyon was appropriate under the IDEA.
1. The TEA Hearing
In his carefully written decision, the TEA hearing officer
articulated three primary reasons why the IEP in effect at the time
Michael was removed from Cy-Fair ISD (the October 4, 1993 IEP) was
not reasonably calculated to enable Michael to receive educational
benefits. First, despite his recognition that the earlier IEPs
developed by Cy-Fair ISD for Michael’s 1992-93 school year
represented appropriate interim steps designed to benefit Michael
based on the facts and information available at that time, the
Id. at 1291; Alamo Heights, 790 F.2d at 1158 (citing Tatro v.
Texas, 703 F.2d 823, 830 (5th Cir. 1983), aff’d in part and rev’d
in part, 468 U.S. 883 (1984)).
17
hearing officer found that these IEP’s had not proven successful in
managing Michael’s behavior. Consequently, because the October 4,
1993 IEP replicated the primary tools of the previous year’s
inadequate programs (namely, the adaptive behavior classes and
behavior management and discipline contingency plans), the October
4, 1993 plan was inappropriate. The hearing officer supported this
initial finding by (1) characterizing Michael’s behavior during his
time at Bleyl, both before and after the implementation of the
October 4, 1993 IEP, as “extreme, outrageous, and dangerous,” and
(2) noting that his behavior included examples of oral and physical
abuse of his teachers, school administrators, and other students.
Second, the hearing officer found that the absence of a meaningful
educational benefit was further exemplified by Michael’s generally
low self-esteem and by the fact that his October 26, 1993 progress
report reflected that he was either failing or receiving
incompletes in all of his subjects. Finally, the hearing officer
determined that (1) Michael’s presence in regular classrooms was so
disruptive that it impaired the education of other students, thus
indicating that his needs could not be met in the regular education
environment,28 and (2) his behavior did not improve when he was
placed in the adaptive behavior classes but continued to occur with
the same frequency and level of severity in both his regular
classes and his adaptive behavior classes. Taking all this into
See Daniel R.R. v. State Board of Educ., 874 F.2d 1036, 1049
(5th Cir. 1989) (quoting 34 C.F.R. § 300.552 Comment).
18
consideration, the hearing officer concluded that the only way
Michael could learn to control his impulsive and aggressive
behavior and therefore gain an educational benefit without
significantly disrupting others was if he were placed in a highly
structured, 24-hour residential treatment facility.
2. The District Court Proceeding
The district court did not attempt to refute or discredit each
of the hearing officer’s findings in support of his conclusion that
the school district’s educational program for Michael was
inappropriate. Instead, following the expert opinion of Christine
Salisbury, Ph.D., an educator with considerable experience in the
development of educational programs for disabled children, the
court posited that there are four factors that can serve as
indicators of whether an IEP is reasonably calculated to provide a
meaningful educational benefit under the IDEA.29 These are: (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.
As there is little doubt that Michael’s October 1993 IEP (a) was
Cy-Fair ISD notes that Dr. Salisbury’s four factors are
derived from and track the federal regulations which implement the
IDEA. See 34 C.F.R. §§ 300.346(a) and 300.531-2 (assessment); 34
C.F.R. §§ 300,500 (least restrictive environment); 34 C.F.R. §
300.343-345 (team approach); and 34 C.F.R. § 346(a)(5)
(demonstrated outcomes).
19
designed with his specific behavioral and academic problems in
mind, (b) placed him in educational settings with non-disabled
students for at least half of every school day, and (c) involved
both Michael’s individual teachers and Cy-Fair ISD administrators
and counselors familiar with his needs in a highly coordinated and
collaborate effort, the court had no difficulty concluding —— and
neither do we —— that the first three hallmarks of an appropriate
IEP were present.
As for the fourth factor —— demonstrable academic and non-
academic benefits —— the district court concluded that Michael’s
passing grades at the time he left Bleyl to attend Provo Canyon and
his ability to attend lunch and pass through the halls between
class unaccompanied by school staff constituted significant
academic and non-academic benefits achieved by the IEP. We agree
that these objective indicia of educational benefit identified by
the district court are significant, and we find further support for
the district court’s conclusion that the October 1993 IEP was
reasonably calculated to, and in fact did, produce more than a
modicum of educational benefit for Michael in the opinion of those
individuals who had the most immediate knowledge of his performance
during his enrollment at Bleyl —— the teachers who worked with him
on a daily basis, the assistant principal who was primarily
responsible for administering Michael’s discipline plan, and the
school psychologist who counseled Michael during this period.
20
3. Additional Evidence of Educational Benefit
Although we cannot recount in detail all of observations of
these individuals whose professionalism and concern for Michael was
clearly evident in their lengthy testimony before the hearing
officer, the following highlights of that testimony are
particularly illuminating. First, Laurie Fowlkes, Michael’s
Science teacher, testified that Michael was generally “on task,”
demonstrated enthusiasm by volunteering for assignments, often
controlled his own behavior when he began to get agitated during
lab work by asking for permission to sit down and then putting his
head on his desk, and would likely have earned a grade of B or a
high C in her class if he had not left Bleyl. Second, Franklin
Finch, Michael’s Industrial Technology teacher, testified that
Michael worked well in small groups, was “on task” 99.9 percent of
the time, never demonstrated inappropriate behavior except on his
last day in class, and was, in Finch’s opinion, trying to keep
behavioral problems in check and seeking reassurance in these
efforts. Third, Leona W. Henry, Michael’s Reading teacher,
observed Michael’s behavior to be typical of adolescent boys in her
class, noted that on the few occasions that warnings or time-outs
were required Michael subsequently settled down, and stated that
she fully expected that Michael would have passed had he remained
in her class.
Perhaps the most important of all Michael’s teachers at Bleyl
21
was Michael Donnelly, an experienced member of the school’s Special
Education department who served as Michael’s “tracking teacher” in
August and September and taught Michael’s adaptive behavior classes
in October and early November. Donnelly testified that, during
Michael’s stay in his adaptive behavior classroom, Michael’s
ability to respond to Donnelly as a teacher and carry on a mature
conversation improved. Donnelly further observed that Michael
increasingly controlled his urges to interrupt class with
inappropriate comments and behavior. Donnelly also noted that, at
the time Michael’s parents removed him from Bleyl, he was earning
passing grades in all three academic subjects taken in the adaptive
behavior classes (Math, Language Arts, and Texas History). Based
on all of this, Donnelly believed that the adaptive behavior
classes constituted an appropriate placement for Michael because he
appeared to be “buying into the system”; Donnelly and Michael had
established a “good rapport”; and neither Donnelly nor anyone else
at Bleyl felt endangered by Michael’s presence.
Equally impressive in his faith in Michael’s gradual but
steady progress under the school district’s IEP was Robert Fowler,
the assistant principal at Bleyl who was primarily responsible for
administering Michael’s behavior management and discipline
contingency plans and whose office Michael visited on numerous
occasions. Fowler first pointed out that the frequency of the need
for severe disciplinary responses to Michael’s behavioral problems
(i.e., emergency removal) dropped dramatically after Michael’s
22
placement in the adaptive behavior classes under the October IEP.
Fowler also reported that he (1) enjoyed “a very good rapport” with
Michael, (2) saw a decrease in physically aggressive and otherwise
disruptive behavior after Michael was placed in the adaptive
behavior classes, (3) was aware of many instances in which the
discipline contingency plan worked as intended, that is, Michael
successfully returned to work after an in-class “time-out,” a
session in his office, or a discipline management class, (4)
observed some very encouraging instances of Michael’s putting
himself into “time-out” or taking himself to the assistant
principal’s office and subsequently regaining his composure, (5)
rated Michael’s misbehavior as no more severe than other regular
education students he saw frequently in his office, (6) found
Michael’s resistance to “dressing-out” for gym class to be typical
of young students confronted with this requirement for the first
time, which resistance was remedied under the November 18 IEP, and
finally (7) did not believe that Michael posed a danger to students
or staff at Bleyl.
Kenneth Greer, Ph.D., a psychologist with Cy-Fair ISD who was
knowledgeable about Tourette’s and had worked with approximately
twenty Tourette’s-afflicted students in the school district,
authored a detailed report about Michael and testified about
Michael’s experience in the school district, based on Greer’s
direct observation of Michael in counseling sessions and other
data. In general, Greer reported that (1) the adaptive behavior
23
classes at Bleyl had lessened the frequency and intensity of
Michael’s misbehavior, in consequence of which his disciplinary
referrals had decreased, (2) Michael’s initial placement in regular
classes at Bleyl was made largely at the request of his parents,
(3) Michael was much more cooperative in counseling sessions from
the very beginning of his placement at Bleyl, (4) despite his
impulse control problems, Michael never posed a threat to others or
a danger to the school, and (5) in Greer’s view, Michael appeared
to trust Mr. Fowler, the assistant principal, as someone with whom
he could converse and who provided a safe harbor for him in the
school environment.
Finally, we would be remiss if we failed to note the thorough
testimony at the district court hearing of Bernard Rosenberg, M.D.,
Michael’s attending psychiatrist in early 1993. A board certified
psychiatrist with extensive clinical experience treating children
with Tourette’s, Rosenberg testified that a placement in adaptive
behavior classes for part of the school day is generally the most
appropriate one for a student with Tourette’s, and, in Michael’s
case, was particularly appropriate given the average severity of
his symptoms and his relative success in his other classes at
Bleyl. By contrast, a 24-hour residential psychiatric placement,
Rosenberg testified, would be inappropriate because it would
deprive Michael of the opportunity to learn to get along with other
children and because, in Rosenberg’s view, Michael did not pose a
danger to himself or others.
24
In sum, the testimony of all of these individuals who had
direct and frequent contact with Michael both in and outside the
school setting 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 both academically and behaviorally. In addition, their
testimony supports the court’s rejection of the TEA hearing
officer’s assumption that the school district’s replication of some
of the educational tools briefly used during the 1992-93 school
year was inappropriate in the context of the 1993-94 academic year.
First, Michael’s participation in the adaptive behavior classes at
Hamilton was limited to the last two months of his sixth grade
year. As Dr. Rosenberg explained, this period had followed a
series of trying and ultimately unsuccessful attempts to modulate
Michael’s medications and a six-week homebound placement, events
that undoubtedly disrupted the progress and structure of Michael’s
schooling. Second, Michael’s placement in regular classes at the
beginning of the 1993-94 school year reflected a choice primarily
made by Michael’s parents. Third, and most importantly, Michael’s
experience at Bleyl, albeit too brief for a definitive assessment
of its success, was unique and clearly showed a pattern,
particularly once he was switched into the adaptive behavior
classes, of increasingly more self-controlled behavior and
respectable, although not always consistent, academic success.
Given all this, the district court cannot be said to have erred in
25
finding that the IEPs developed by Cy-Fair ISD for Michael’s 1993-
94 school year were reasonably calculated to produce a meaningful
educational benefit for Michael.
As it is evident that the IEP’s developed for Michael’s
seventh grade year were specifically tailored to his individual
needs and placed him in the least restrictive educational
environment consistent with those needs, we conclude that the
district court committed no reversible error in determining that
these IEPs and Michael’s placement within the Cy-Fair ISD were
appropriate under the IDEA.30 We therefore need not address the
Given the strong factual support for the district court’s
decision, we also find that the cases specifically cited to us by
Michael’s parents in support of their claim that the school
district’s placement was inappropriate and their placement at Provo
Canyon was appropriate are readily distinguishable. In Clyde K v.
Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1401 (9th Cir. 1994), the
Ninth Circuit found that a fifteen-year old student with Tourette’s
and ADHA had been properly placed by a school district, against his
parents wishes, in a self-contained, off-campus facility, as
opposed to mainstream classes, in light of unrefuted evidence that
the student was extremely disruptive and dangerous to others and
his well documented failure to obtain any education benefits in the
mainstream placement. In Seattle School Dist., No. 1. v. B.S., 82
F.3d 1493, 1497 and 1500-01 (9th Cir. 1996), the Ninth Circuit
held, this time against a school district, that a residential
placement, rather than mainstreaming, was appropriate for a student
with various behavioral disorders who was not receiving any
academic or non-academic benefits in a regular classroom, was
severely disrupting class, had become so physically assaultive that
she had to be placed in restraints, and ultimately was expelled by
the school district. In Capistrano Unified Sch. Dist. v.
Wartenberg, 59 F.3d 884, 886-87 (9th Cir. 1995), the Ninth Circuit
agreed with a district court and a hearing officer that a
mainstream placement lacking in consistency and structure was
inappropriate for a sixteen-year old boy who suffered severe
learning and behavior disorders and whose IEP’s had produced
nothing but failing grades and discouragement for years. In short,
all three of these Ninth Circuit decisions were dictated by
26
issue whether Michael’s parents’ placement of Michael at Provo
Canyon was appropriate.31 Accordingly, we affirm the district
court’s reversal of the hearing officer’s ruling that Cy-Fair ISD
must reimburse Michael’s parents for the cost of sending Michael to
Provo Canyon.
C. Award of Costs
Relying on Federal Rule of Civil Procedure 54(d)(1),32 the
circumstances substantially different than those before us.
Similarly, the district court decisions in Chris D. v.
Montgomery County Bd. of Educ., 753 F.Supp. 922, 929 (M.D. Ala.
1990) (program for emotionally disturbed thirteen-year old boy
utterly failed to provide significant educational benefit and in
fact may have been harming him), and M.R. v. Lincolnwood Board of
Educ., Dist. 74, 843 F.Supp. 1236, 1238 (N.D. Ill. 1994), aff’d, 56
F.3d 67 (7th Cir. 1995) (mainstreaming not appropriate for
emotionally disturbed thirteen-year old boy whose deteriorating
behavior represented a regression in addition to disturbance of
others), finding that more structured placements were necessary,
were also based on distinguishable fact patterns. Much closer
factually to the case at bar were the district court decisions in
Hall v. Shawnee Mission School Dist., 856 F.Supp. 1521, 1528-29 (D.
Kan. 1994) (IEP calling for partial placement in adaptive behavior
class was reasonably calculated to produce educational benefit as
demonstrated by child’s academic achievement on par with his grade
level and gradually improving behavior, despite continuing behavior
problems at home), and Swift v. Rapides Parish Public School
System, 812 F.Supp. 666 (W.D. La.), aff’d, 12 F.3d 209 (5th Cir.
1993) (same), and our decision in Teague, 999 F.2d at 132
(educational benefit of IEP designed for seventeen-year old boy
with various behavior, learning and speech disorders evidenced by
testimony of student’s teacher and school psychologist, fact that
student advanced in terms of grade level, and student’s increasing
ability to focus on particular tasks).
Teague, 999 F.3d at 132.
Rule 54(d)(1) provides:
Except when express provision therefor is made either in
a statute of the United States or in these rules, costs
other than attorneys’ fees shall be allowed as of course
to the prevailing party unless the court otherwise
27
district court awarded $6,770.05 in costs to Cy-Fair ISD.
Michael’s parents have challenged this award on a number of
grounds. We generally review a decision of the district court to
award costs for abuse of discretion.33 We review the court’s
discrete factual findings for clear error.
In the district court and here on appeal, Michael’s parents
have principally argued that the district court’s substantial award
of costs is inequitable and violates the spirit if not the letter
of the IDEA, given the procedural posture of this case. Michael’s
parents emphasize that it was Cy-Fair ISD which filed suit in
district court to appeal the state hearing officer’s determination
in favor of the parents. Thus they contend that the district
court’s award of costs here, if approved, would have a chilling
effect on the willingness of parents to contest school district
decisions vitally affecting their children by putting such parents
at risk of being penalized with a substantial cost assessment even
when they have managed to prevail at the administrative hearing
level. Other parents will now have to think long and hard,
Michael’s parents urge, before using the administrative procedures
that Congress took great pains to make available to them under the
IDEA for the protection of their children’s interests.
We cannot disagree with the equitable aspects of Michael’s
directs . . . .
Fed. R. Civ. P. 54(d)(1) (emphasis added).
Alberti v. Klevenhagen, 46 F.3d 1347, 1358 (5th Cir. 1995).
28
parents arguments on this point. But, as Cy-Fair ISD has noted,
the IDEA does not prohibit an award of costs to a school district
as a prevailing party in district court even when the parents have
prevailed at the administrative level.34 Consequently, the district
court could, without abusing its discretion, interpret this silence
as permission to impose costs “as of course” under Rule 54(d)(1).
In this case, however, our review of the award of costs is not
limited to the general propriety of the award because Michael’s
parents also objected to each item included in Cy-Fair ISD’s bill
of costs. When we review them, item by item, we find that three of
these objections clearly have merit, constituting error by the
district court in allowing the school district to recover some or
all of the costs of the items identified by these three objections.
First, Michael’s parents properly objected to the $137.80 cost
attributable to the school district’s use of a private process
server to serve both them and their attorney despite their
counsel’s having agreed to accept service on their behalf and not
having objected to the use of service by mail. As there was
The IDEA does specifically provide that a district court “may
award reasonable attorneys’ fees as part of the costs to the
parents or guardian of a child or youth with a disability who is
the prevailing party,” 20 U.S.C. § 1415(e)(4)(B) (emphasis added),
but it is silent about awarding costs other than attorneys’ fees to
either parents or a school district as a prevailing party. Even
though the doctrine of inclusio unius est exclusio allerius might
well support an argument against an award of attorneys’ fees under
the circumstances, the issue is not before us today, for the
district court did not include attorneys fees in its award of
costs.
29
nothing exceptional about the parties or the nature of this case,
the district court should have denied these unnecessary private
service costs.35
Next, Michael’s parents properly objected to $1004.00 of the
$1,319.00 in witness fees and expenses attributable to Dr.
Salisbury’s round trip airfare. Having checked with the airline
Dr. Salisbury used, the parents noted that even the seven-day
advance purchase price for a Pittsburgh to Houston round trip for
the date at issue was less than $385.00. The school district
provided no reasonable explanation why Dr. Salisbury’s plane ticket
could not have been purchased at least one week in advance,
particularly as there is no record evidence that the one-day
hearing in the district court was either scheduled or changed at
the last minute.36 Thus, the witness fees and expenses recoverable
by Cy-Fair ISD should have been reduced by $619.00, being the
difference between Dr. Salisbury’s actual plane fare and the
maximum amount she would have had to pay for a seven-day advance
fare.
Finally, Michael’s parents objected to $3,657.55 in costs
incident to four depositions purportedly taken by the school
See Zdunek v. Washington Metro. Area Trans. Auth., 100 F.R.D.
689, 692 (D. D.C. 1983).
28 U.S.C. § 1821(c)(1) provides for the payment of travel
expenses of witnesses who travel by common carrier, but
specifically states that “a witness shall utilize a common carrier
at the most economical rate reasonably available.”
30
district in preparation for the district court hearing, which
expenditures the parents assert were not “reasonably necessary.”37
The deponent in one of those depositions was of Michael’s parents’
expert, Gina Novellino, Ph.D., Michael’s psychologist who was
unavailable for live testimony and whose deposition was introduced
as an exhibit at trial. The cost of this deposition was not
erroneously taxed to Michael’s parents. The other depositions,
however, were those of the school district’s own witnesses and were
not introduced at trial because of Michael’s parents’ objections.
As the school district had to have known in advance that these
witnesses would have to be called for live testimony in open court
at the district court hearing, their depositions were surplusage
and cannot properly be taxable to Michael’s parents as “reasonably
necessary” under these circumstances. Accordingly, the school
district should not have been allowed to recover the $2,176.40 cost
of these three depositions.
In conclusion, we hold that the district court did not abuse
its discretion in general when it elected to tax costs to Michael’s
parents, but clearly erred in its findings of fact as to the proper
amounts for the three categories of costs discussed above, i.e.,
private process service, plane fare, and deposition expenses. We
therefore conclude that the award of costs to Cy-Fair ISD should be
Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099
(5th Cir. 1982) (A deposition is taxable as a cost so long as “the
taking of the deposition is shown to have been reasonably necessary
in light of the facts known to counsel at the time it was taken.”).
31
reduced by $2,933.20, to $3,837.40.
III
CONCLUSION
Having concluded that the district court did not err
reversibly in finding that the IEPs designed for Michael and Cy-
Fair ISD’s resulting placement of Michael in his local junior high
school were reasonably calculated to produce a meaningful
educational benefit and were therefore appropriate under the IDEA,
we affirm the district court’s reversal of the TEA hearing
officer’s ruling that the school district must reimburse Michael’s
parents for the costs of their unilateral placement of Michael in
a private full-time residential school. Furthermore, we modify the
district court’s award of costs under Rule 54(d)(1) as discussed
above and affirm that award as modified.
JUDGMENT AFFIRMED; ORDER MODIFIED and, as modified, AFFIRMED.
32