Case: 20-20339 Document: 00515904405 Page: 1 Date Filed: 06/17/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 17, 2021
No. 20-20339 Lyle W. Cayce
Clerk
D.C., an individual with a disability; J.C., as parent/guardian/next friends
of D.C., an individual with a disability; K.C., as parent/guardian/next friends
of D.C., an individual with a disability,
Plaintiffs—Appellees,
versus
Klein Independent School District,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-21
Before Haynes, Graves, and Willett, Circuit Judges.
Haynes, Circuit Judge:*
This case was brought on behalf of D.C., a minor with a specific
learning disability in reading comprehension. Soon after D.C. started first
grade in the Klein Independent School District (the “District”), his teachers
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-20339
realized that he struggled with reading comprehension and fluency. By the
end of second grade, school officials recognized that D.C. was “in need of
intensive intervention” due to his reading deficiencies. Although the District
provided D.C. with increasing accommodations, his grades and test scores
continued to decline in some respects. Finally, in fifth grade, the District
evaluated D.C. and determined that he was eligible to receive special
education. Yet, when District officials met with D.C.’s parents to draft a
special education program, they failed to provide D.C. with any specialized
instruction in reading comprehension. Once the program was implemented,
D.C. showed only marginal improvements in his reading ability and remained
well below grade-level.
Dissatisfied with the District’s program, D.C.’s parents sued the
District on D.C.’s behalf under the Individuals with Disabilities Education
Act (the “IDEA”), 20 U.S.C. §§ 1400–82. There are two key questions
remaining in this lawsuit: (1) did the District unreasonably delay evaluating
D.C. for special education eligibility; and (2) did the District fail to provide
D.C. with an adequate special education program? So far, a state hearing
officer, a magistrate judge, and a district court have unanimously answered
each question, “Yes.” We agree, and therefore AFFIRM.
I. Background
A. The IDEA’s Statutory Structure
The IDEA provides that in exchange for “federal funds to assist in
educating children with disabilities,” “a State pledges to comply with a
number of statutory conditions.” Endrew F. ex rel. Joseph F. v. Douglas Cnty.
Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017). Chief among these conditions is
the requirement to provide a free appropriate public education (“FAPE”)
“to all children with disabilities residing in the State between the ages of 3
and 21.” 20 U.S.C. § 1412(a)(1)(A). Under the IDEA, a FAPE “consists of
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educational instruction specially designed to meet the unique needs of
the . . . child, supported by such services as are necessary to permit the child
‘to benefit’ from the instruction.” Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 188–89 (1982).
The IDEA provides a comprehensive scheme to ensure that every
eligible child is provided a FAPE. This scheme begins with the “child find”
mandate, which requires each state to “identif[y], locate[], and evaluate[]”
each resident child with disabilities “who [is] in need of special education
and related services.” 20 U.S.C. § 1412(a)(3)(A). Once an eligible child is
identified, the IDEA requires preparation of an Individual Education Plan
(“IEP”) “tailored to the unique needs of” the child. Rowley, 458 U.S. at 181.
The “IEP must be drafted in compliance with a detailed set of procedures,”
which “emphasize collaboration among parents and educators.” Endrew F.,
137 S. Ct. at 994 (citing 20 U.S.C. § 1414). Further, “[e]ach IEP must
include an assessment of the child’s current educational performance, must
articulate measurable educational goals, and must specify the nature of the
special services that the school will provide.” Schaffer ex rel. Schaffer v.
Weast, 546 U.S. 49, 53 (2005) (citing 20 U.S.C. § 1414(d)(1)(A)).
Ultimately, “a school must offer an IEP reasonably calculated to enable a
child to make progress appropriate in light of the child’s circumstances.”
Endrew F., 137 S. Ct. at 999.
If the collaborative IEP-drafting process breaks down, the IDEA offers
a detailed dispute-resolution process. See 20 U.S.C. § 1415. As relevant
here, “the parents or the local educational agency involved” may request an
“impartial due process hearing,” the exact procedures of which are
determined by state law. Id. § 1415(f)(1)(A). At the conclusion of the state
administrative process, any aggrieved party may seek relief in state or federal
court. Id. § 1415(i)(2)(A). Additionally, a federal court may award attorneys’
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fees to the parents if they are the “prevailing party” in the litigation. Id.
§ 1415(i)(3)(B)(i)(I).
B. D.C.’s Experience in the District
During first through fourth grade, D.C. struggled with reading
comprehension and fluency. The District recognized that D.C. was
struggling, and attempted to address his issues through means other than
special education. 1 When he was in third grade, his mother requested a
special education evaluation from the school. After reviewing D.C.’s file, the
District’s Referral Committee concluded that D.C. did not appear to be in
need of special education. However, on March 22, 2016, the District’s
Section 504 Student Review Committee convened and determined that D.C.
had a disability under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794, warranting a number of instructional accommodations. These
accommodations included: not requiring D.C. to read aloud, providing extra
time for assignments, permitting frequent breaks, and allowing oral
administration of assignments and tests.
On September 3, 2017, just before the start of D.C.’s fifth grade year,
D.C.’s parents again requested a special education evaluation. On October
19, 2017, the District’s Referral Committee met with D.C.’s mother and,
with her consent, referred him for evaluation. The evaluation was completed
on January 14, 2018, concluding that D.C. had a specific learning disability in
reading comprehension.
The District’s Admission, Review, and Dismissal (“ARD”)
Committee met with D.C.’s parents on February 7, 2018 to review the results
1
Specifically, starting in first grade, the District placed D.C. in the “Language
Literacy Intervention” program, which focused on reading comprehension and writing
skills.
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of the evaluation and to formulate an IEP. After three days of meetings
(February 7, March 1, and March 9), the ARD Committee prepared an IEP
for D.C.; D.C.’s parents signed the IEP and agreed to its immediate
implementation. D.C.’s IEP recognized that he had a “Specific Learning
Disability in the area of Reading Comprehension, Reading Fluency, Basic
Reading Skill,” and, at the insistence of D.C.’s family, identified him as a
“student with Dyslexia.” The IEP placed D.C. in general education for all
of his classes, but offered two major special services: (1) 3.75 hours per week
of co-teach reading instruction, and (2) dyslexia services.
C. The Due Process Hearing
D.C.’s parents filed a due process complaint with the Texas
Education Agency on April 27, 2018. A hearing was held in August 2018, and
the hearing officer issued his decision in November 2018. Based on his
review of the evidence, the hearing officer determined that D.C. had a
specific learning disability in reading comprehension and that his “reading
comprehension deficit [was] the root of his issues with reading fluency and
his primary area of need.”
The hearing officer then concluded that the District had denied D.C.
a FAPE by violating its child find duty and by failing to prepare an adequate
IEP. With respect to child find, the hearing officer found that the District
had reason to suspect D.C. was eligible for special education by April 27,
2017, and had unreasonably delayed evaluating him until January 2018. 2
2
The hearing officer set April 27, 2017 as the trigger date rather than an earlier
date because he determined that April 27, 2017 was the beginning of the relevant statute of
limitations period. The district court accepted the hearing officer’s determination
regarding the statute of limitations, and D.C. does not raise the issue on appeal.
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With respect to the adequacy of the IEP, the hearing officer found
that: (1) the IEP was not individualized because it did not provide D.C. with
a specialized program to address his reading comprehension disability,
instead providing D.C. with dyslexia services, even though there was
insufficient evidence that D.C. was dyslexic; (2) the IEP did provide services
in the least-restrictive environment; (3) the IEP did not provide services in a
collaborative manner; and (4) the IEP did not provide D.C. with sufficient
academic benefit as he made only minimal progress in reading. Accordingly,
the hearing officer ruled that the District had not provided D.C. with a FAPE.
Based on these findings, the hearing officer ordered the District to
modify the IEP so as to provide D.C. with forty-five minutes per day of
reading instruction using either Read 180, a research-based reading
comprehension program, or a similar peer-reviewed program. The hearing
officer also awarded D.C. 108 hours of compensatory education.
D. District Court Proceedings
In January 2019, D.C.’s parents filed suit in federal district court,
seeking attorneys’ fees and costs as the prevailing party in the state
administrative proceedings. The District counterclaimed, asserting that
D.C. was not a prevailing party because the hearing officer’s decision was
erroneous. The District also sought reversal of the hearing officer’s award of
compensatory education.
D.C. and the District filed cross-motions for summary judgment. 3
The magistrate judge reviewed these motions and recommended that the
3
In IDEA cases, if “neither party request[s] the district court hear additional
evidence, a summary judgment motion is the procedural vehicle for asking the judge to
decide the case on the basis of the administrative record.” R.S. ex rel. Ruth B. v. Highland
Park Indep. Sch. Dist., 951 F.3d 319, 327 n.6 (5th Cir. 2020) (per curiam) (internal quotation
marks and citation omitted).
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district court grant D.C.’s motion and deny the District’s. The District
timely objected to the magistrate judge’s recommendations.
Although the district court agreed with the District that the magistrate
judge had applied an incorrect standard of review, it concluded that this error
was not dispositive. Accordingly, the district court modified the magistrate
judge’s report and recommendation to apply the correct standard of review,
but otherwise adopted it in full. In its memorandum order, the district court
agreed with the hearing officer’s conclusions regarding child find, found that
D.C.’s IEP was inadequate because it was not appropriately individualized
and did not provide a demonstrated meaningful benefit, and awarded D.C.
attorneys’ fees. The District timely appealed.
II. Standard of Review
Whether a school district complied with the child find mandate and
whether a school district provided a child with a FAPE are mixed questions
of law and fact. Spring Branch Indep. Sch. Dist. v. O.W. ex rel. Hannah W., 961
F.3d 781, 790 (5th Cir. 2020), cert. denied, 141 S. Ct. 1389 (2021) (mem.).
Accordingly, a district court’s legal conclusions are reviewed de novo, while
its findings of fact are reviewed for clear error. Id. On clear error review, we
will reverse a district court’s findings only if we are “left with the definite
and firm conviction that a mistake has been committed.” E.R. ex rel. E.R. v.
Spring Branch Indep. Sch. Dist., 909 F.3d 754, 766 (5th Cir. 2018) (per curiam)
(internal quotation marks and citation omitted).
“[A] federal district court’s review of a state hearing officer’s [IDEA]
decision is virtually de novo.” 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). Under this standard, a district court should give “due
weight” to a hearing officer’s findings, but “must arrive at an independent
conclusion based on a preponderance of the evidence.” Id. (internal
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quotation marks and citation omitted). However, a district court must afford
“greater deference” to credibility determinations based on live testimony. 4
Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d 205, 218 (5th Cir. 2019)
(quotation omitted).
III. Discussion
On appeal, the District challenges four aspects of the district court’s
judgment: (1) the finding that the District violated the child find mandate;
(2) the finding that D.C.’s IEP was inadequate; (3) the decision not to vacate
the hearing officer’s award of compensatory education; and (4) the
conclusion that D.C. was an prevailing party eligible to receive attorneys’
fees. We address each issue in turn. 5
4 As we undertake our review, we are mindful that the Supreme Court has
repeatedly warned lower courts against mistaking the IDEA’s broad standards “for ‘an
invitation . . . to substitute their own notions of sound educational policy for those of the
school authorities which they review.’” Endrew F., 137 S. Ct. at 1001 (quoting Rowley, 458
U.S. at 206).
5
In its reply brief, the District makes the overarching argument that the district
court improperly placed the burden of persuasion on it rather than on D.C. But this
argument does not appear in the District’s opening brief, which makes only vague
assertions that the hearing officer improperly allocated the burden of persuasion at the
administrative level. We detect no error in the hearing officer’s allocation of the burden of
persuasion, and because the District did not raise the issue of the district court’s allegedly
improper allocation until its reply brief, the issue has been waived. See, e.g., United States
v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (per curiam) (noting that arguments raised
for the first time in a reply brief are waived). Moreover, the District’s reply brief neither
cites any of our precedents specifying how the burden of persuasion is allocated at the
district court level, nor explains what the appropriate remedy would be for the district
court’s supposed burden-of-persuasion error, nor even cites to the allegedly erroneous
portions of the district court’s memorandum order. Thus, even if we ignored the District’s
failure to raise the issue in its opening brief, the argument would still be waived. See Innova
Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 735 (5th
Cir. 2018) (“To avoid waiver, a party must identify relevant legal standards and any
relevant Fifth Circuit cases.” (quotation omitted)); United States v. Upton, 91 F.3d 677, 684
n.10 (1996) (“[C]laims made without citation to authority or references to the record are
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A. Child Find
We have held that the IDEA’s child find mandate has an implied
“reasonable time” requirement, such that “a school district must identify,
locate, and evaluate students with suspected disabilities within a reasonable
time after the school district is on notice of facts or behavior likely to indicate
a disability.” O.W., 961 F.3d at 791 (internal quotation marks and citation
omitted). When considering whether a school district acted within a
reasonable time, we “employ a case-by-case approach” and consider only
“the information and resources possessed by the district at a given point in
time.” Ridley Sch. Dist. v. M.R., 680 F.3d 260, 272 (3d Cir. 2012) (internal
quotation marks and citation omitted); see also Lisa M., 924 F.3d at 214
(stressing that it is inappropriate to consider hindsight evidence when
reviewing an IDEA eligibility determination). Ultimately, our evaluation of
a school district’s compliance with the child find mandate “turns on three
inquiries: (1) the date the child find requirement [was] triggered due to notice
of a likely disability; (2) the date the child find duty was ultimately satisfied;
and (3) the reasonableness of the delay between these two dates.” O.W., 961
F.3d at 793.
The district court determined that: (1) the District’s child find duty
was triggered by April 27, 2017; (2) the District satisfied its obligations on
October 19, 2017, when D.C.’s mother consented to a disability evaluation;
and (3) that the nearly six-month delay between these dates was
unreasonable. On appeal, the District asserts that the district court erred in
concluding that April 27, 2017 was the trigger date, and that even if April 27
considered abandoned on appeal.”); Fed. R. App. P. 28(a)(8)(A) (requiring the
appellant to provide “citations to the authorities and parts of the record on which the
appellant relies”).
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was the correct trigger date, its delay was reasonable. Neither assertion is
persuasive.
1. Trigger Date
A school district’s child find duty is triggered when the district “had
reason to suspect [the child] had a qualifying disability.” Dall. Indep. Sch.
Dist. v. Woody, 865 F.3d 303, 320 (5th Cir. 2017). Although there is no bright-
line rule, a school district generally has sufficient notice if it is aware of facts
suggesting the child has a disability and that the child is struggling
academically. Compare Krawietz ex rel. Parker v. Galveston Indep. Sch. Dist.,
900 F.3d 673, 677 (5th Cir. 2018) (concluding that a child’s “academic
decline, hospitalization, and incidents of theft should have led [the school
district] to suspect her need for special education services” (internal
quotation marks omitted)), with D.K. v. Abington Sch. Dist., 696 F.3d 233,
251 (3d Cir. 2012) (determining that the school district’s child find obligation
was not triggered where the child’s adverse behaviors were consistent with
his age group and he was achieving “intermittent progress and even academic
success”), and Bd. of Educ. of Fayette Cnty. v. L.M., 478 F.3d 307, 314 (6th
Cir. 2007) (determining that the school district did not violate the child find
mandate where the child was “meeting expectations in all academic areas”
despite displaying significant behavioral issues).
As the district court noted, there was extensive evidence that the
District was or should have been aware of D.C.’s disability by April 27, 2017,
including: his fourth-grade Section 504 plan, which noted he had “secondary
characteristics of dyslexia evident in reading comprehension and written
expression”; his third-grade Section 504 plan, which stated that D.C. had a
substantial impairment; and the fact that D.C.’s performance on assignments
substantially improved with oral administration. By that point, the District
also possessed substantial evidence that D.C.’s disability warranted special
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education. In particular, despite the District’s provision of Section 504
accommodations, D.C.’s reading level did not improve from the start of
fourth grade through the middle of the year, he scored a mere forty percent
during a February simulation for the State of Texas Assessments of
Academic Readiness (“STAAR”) exam, and, most concerningly, he placed
in the second percentile on his winter reading Measure of Academic
Proficiency (“MAP”) test, despite having placed in the forty-second
percentile in the fall. Given the failure of the Section 504 accommodations
to improve D.C.’s performance, by April 27, 2017, the District should have
been aware that its existing strategy was insufficient to serve D.C.’s needs.
Cf. L.M., 478 F.3d at 314 (concluding that the school district did not violate
child find where interventions short of special education “were moderately
successful”). Consequently, the district court did not err in its trigger date
determination.
2. Reasonableness of the Delay
In O.W., we established “that the reasonableness of a delay is not
defined by its length but by the steps taken by the district during the relevant
period.” 961 F.3d at 793. Accordingly, we consider whether, “throughout
the period between notice and referral, a district t[ook] proactive steps to
comply with its child find duty.” Id. For example, in Woody, we held that a
three-month delay was reasonable where the school district spent the
intervening period “requesting and gathering information,” the child’s
parent took over a month to respond to an information request, and the
parent and the district mutually agreed to hold the referral meeting an
additional month later. 865 F.3d at 320. By contrast, in O.W., we held that
a three-month and seven-day delay was unreasonable where the school
district chose to continue implementing Section 504 accommodations
instead of pursuing a special education evaluation. 961 F.3d at 793–95; see
also Krawietz, 900 F.3d at 677 (ruling that a four-month delay was
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unreasonable where the district “failed to take any appreciable steps toward
complying with its Child Find obligations”).
Here, the District concedes that it failed to take any steps towards
evaluating D.C. between April 27 and the start of the new school year on
September 6, 2017. Nevertheless, the District argues that these months
should not count against it because this time period included the District’s
summer vacation. On this point, the District cites a single case, J.G. v.
Douglas County School District, 552 F.3d 786 (9th Cir. 2008), which adopted
a sensible rule: “school districts [are allowed] a degree of leeway during
summer vacation,” but are not permitted to delay complying with the child
find mandate “solely because summer vacation makes a timely evaluation
difficult.” Id. at 798.
Thus, even if we apply the District’s preferred rule of law, its
summertime delay was unreasonable: school districts on summer break need
not move towards evaluation as expeditiously as they might during the school
year, but they cannot get away with doing nothing, and here, the District did
nothing. 6 Moreover, the District inexplicably ignores its delay during the
6
The District also contends that Texas regulations establish that only school days
count when considering whether a school district complied with the child find mandate.
Yet, the regulation the District cites, 19 Texas Administrative Code § 89.1011(c)(1), does
no such thing. Rather, § 89.1011(c)(1) establishes that school districts have forty-five
school days to evaluate a child following the receipt of parental consent (received here on
October 19, 2017)—the regulation says nothing about how to measure time before the
receipt of parental consent, which is the relevant issue in this case. We decline the
District’s invitation to fail to apply the text as written and instead expand the scope of
§ 89.1011(c) so as to negate pre-consent delays. See Tex. Dep’t of Crim. Justice v. Rangel,
595 S.W. 3d 198, 210 (Tex. 2020) (explaining that courts “may not impose [their] own
judicial meaning on a statute by adding words not contained in the statute’s language”
(quotation omitted)); Ebert v. Poston, 266 U.S. 548, 554 (1926) (“A casus omissus does not
justify judicial legislation.”).
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month of May, when school was in session. 7 Therefore, the District
unreasonably delayed D.C.’s evaluation by at least four months.
The district court further faulted the District for an unnecessary delay
between September 3, 2017, when D.C.’s parents requested a special
education evaluation, and October 19, 2017, when the District obtained their
consent to perform an evaluation. On this front, the evidence is more
equivocal: on the one hand, the District used this time to gather and review
its files on D.C. in preparation for the evaluation referral meeting; on the
other hand, the District took thirty school days to offer D.C.’s parents an
opportunity to consent to an evaluation after receiving their request, whereas
Texas law allowed it only fifteen, 19 TEX. ADMIN. CODE § 89.1011(b)
(2017) (Tex. Educ. Agency, Full Individual and Initial Evaluation). But
regardless of how we evaluate the District’s actions in September and
October, the district court’s ultimate conclusion remains sound given the
unreasonableness of the District’s delay between May and September. 8 See
Krawietz, 900 F.3d at 677 (affirming the district court’s finding of a child find
violation even on the assumption that the district court overstated the length
of the school district’s delay by two months). Therefore, the district court
did not err in determining that the District violated the child find mandate.
7
The school year ended on June 1, 2017.
8
Although the District does not rely on it, we note that on or before May 1, 2017,
D.C.’s fourth-grade teacher implemented a new reading program for him. Yet, even if this
action counts as a proactive step towards compliance in response to D.C.’s winter MAP
score, the bottom-line result remains the same: when D.C.’s uniformly below-grade-level
STAAR results were released in June, the District should have taken additional steps, but
failed to do so.
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B. IEP Adequacy
When reviewing an IEP, “the question is whether the IEP is
reasonable, not whether the court regards it as ideal.” Endrew F., 137 S. Ct.
at 999. To evaluate the reasonableness of an IEP, we rely on the four-factor
inquiry set forth in Cypress-Fairbanks Independent School District v. Michael F.
ex rel. Barry F., 118 F.3d 245 (5th Cir. 1997). E.R., 909 F.3d at 765
(confirming that the Michael F. test was not displaced by the Supreme
Court’s decision in Endrew F.). Under Michael F., we consider 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. Ultimately, “a
student’s 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.” A.A. v. Northside Indep.
Sch. Dist., 951 F.3d 678, 691 (5th Cir. 2020) (internal quotation marks and
citation omitted).
The district court determined that the District had collaborated with
D.C.’s parents when developing the IEP, but that the March 2018 IEP was
not individualized and failed to meaningfully benefit D.C. It also determined
that the least-restrictive-environment Michael F. factor was not at issue here.
Accordingly, the district court concluded that the balance of the Michael F.
factors indicated that D.C.’s IEP was inadequate.
The District challenges the district court’s conclusions regarding the
individualization and demonstrated benefits factors. As these conclusions
were findings of fact, we review them for clear error. R.S. ex rel. Ruth B. v.
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Highland Park Indep. Sch. Dist., 951 F.3d 319, 328, 333 (5th Cir. 2020) (per
curiam); Richardson Indep. Sch. Dist. v. Michael Z, 580 F.3d 286, 295 (5th Cir.
2009). The District also asserts that the district court legally erred by under-
weighing the collaboration factor and disregarding the least-restrictive-
environment factor. We review this challenge de novo. O.W., 961 F.3d at
790.
1. Individualization
An IEP is sufficiently individualized if it is “designed for [the child’s]
unique needs.” E.R., 909 F.3d at 768. Hence, an IEP must provide services
that address all of the child’s disabilities; significant services addressing one
disability are not enough if another disability is left unaddressed. See Hous.
Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 585 (5th Cir. 2009)
(concluding that an IEP was not adequately individualized where it “was
good for [the child]’s expressive language delay problems” but “was
inappropriate to address her auditory-processing disorder”).
D.C.’s IEP offered two main services to address D.C.’s disability:
(1) co-teach reading services, and (2) dyslexia services. However, as the
hearing officer and the district court found, there was insufficient evidence
that D.C. had dyslexia, meaning that the dyslexia services offered by the
District did not address D.C.’s needs. Therefore, this factor turns on
whether the co-teach reading services were an “appropriately ambitious”
intervention for D.C.’s reading comprehension disability. Endrew F., 137 S.
Ct. at 1000.
The district court did not clearly err in concluding otherwise. Under
the co-teach program, a “co-teacher” worked alongside D.C.’s general
education teacher for forty-five minutes per day to “giv[e] [D.C.] all of th[e]
supports so that he c[ould] successfully access the curriculum.” Therefore,
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as the hearing officer found, the co-teach program served to “accommodate
but not remediate [D.C.]’s reading comprehension issues.”
Perhaps, in some circumstances, mere accommodation is an
acceptable goal because that is all that may be reasonably attained. See Klein
Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 398 (5th Cir. 2012) (noting that
“overall educational benefit, not solely disability remediation, is IDEA’s
statutory goal”). But D.C. was capable of improvement: as the District’s
own expert testified, the “ideal option” for D.C. would have been Read 180,
a program designed to improve reading comprehension skills. Yet, even
though the District had this program in its repertoire, it included neither
Read 180 nor any similar program in D.C.’s IEP. 9
Finally, our decision in Hovem does not undermine the district court’s
conclusion. In that case, the child had several disabilities relating to his
writing skills. Id. at 392. Although the programs provided under his IEPs
failed to fully remediate his writing deficiencies, Hovem held that his IEPs
were “sufficiently individualized” because they provided him adequate
accommodations to advance through the general education curriculum. Id.
at 398. But the child in Hovem was placed in remedial English and writing
classes to address his specific writing disability, id. at 392–93, and his writing
ability improved over time, id. at 398. Thus, the IEPs in Hovem did at least
attempt to remediate the child’s writing deficiencies, and consequently, the
9
It is unclear if D.C. continued in the Language Literacy Intervention program
after his IEP was implemented; in any event, his IEP makes no mention of it. However,
even if the program had been included in D.C.’s IEP, our conclusion would not change:
D.C. had been enrolled in this program since first grade, and his reading level had plateaued
in fourth grade. Given this plateau, the record suggests that D.C. had needs left
unaddressed by the Language Literacy Intervention program. Therefore, an IEP that
offered only this program would not have been “designed for [D.C.]’s unique needs.”
E.R., 909 F.3d at 768.
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case simply reflects the well-established rule that an IEP need only “aim to
enable the child to make progress.” Endrew F., 137 S. Ct. at 999 (emphasis
added).
By contrast, D.C.’s IEP did not provide any specific program to
address D.C.’s reading comprehension learning disability; unlike the IEP in
Hovem, which at least aimed for improvement, D.C.’s IEP did not.
2. Demonstrated Benefits
To demonstrate positive benefits under Michael F., an IEP must
“produce progress, not regression or trivial educational advancement.”
E.R., 909 F.3d at 765 (internal quotation marks and citations omitted). That
is, the demonstrated educational benefit “must be meaningful.” Michael F.,
118 F.3d at 248 (internal quotation marks and citation omitted); see also
Endrew F., 137 S. Ct. at 1000 (noting that the IEP-adequacy standard “is
markedly more demanding than [a] ‘merely more than de minimis’ test”).
Whether a child is able to pass general education classes and whether
a child’s test scores have increased are important indicators of whether a
child has received a meaningful benefit. See Hous. Indep. Sch. Dist. v. Bobby
R., 200 F.3d 341, 349–50 (5th Cir. 2000) (relying on these indicators). Here,
after his IEP was implemented, D.C. passed all of his fifth-grade general
education classes and his performance on several tests improved. However,
contrary to the District’s assertions, these results do not compel reversal.
To start, the fact that D.C. passed all of his classes is not especially
significant, as the Supreme Court has specifically rejected the proposition
that a child is receiving a FAPE simply because he is “advancing from grade
to grade.” Endrew F., 137 S. Ct. at 1000 n.2 (quoting Rowley, 458 U.S. at 203
n.25). Moreover, we have held that the development of a child with
disabilities “should be measured . . . with respect to the individual student.”
Bobby R., 200 F.3d at 349. In this case, D.C. had never failed any of his
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classes, and his reading grade actually declined in fifth grade to a 77 from a 79
in fourth grade. Thus, measured against his past performance, D.C.’s grades
did not meaningfully improve.
Similarly, D.C.’s test results did not demonstrate a meaningful
benefit. We have three relevant precedents on this issue: Bobby R., Hovem,
and V.P. In Bobby R., we held that the district court did not clearly err in
finding that the child benefitted from his IEP because his absolute test scores
increased across his subjects, even though his percentile scores declined. 200
F.3d at 349–50, 349 n.3. Going a step further, in Hovem, we held, on de novo
review, 10 that the child had meaningfully benefitted from his IEP because he
had “obtained a high school level education that would have been sufficient
for graduation.” 690 F.3d at 399. However, we stressed that the child had
been able to “measure up to ordinary grade-level standards,” id.; indeed, the
child had consistently “excel[led]” in school, earning “above-average
grades” in his general education classes, id. at 391, 393. By contrast, in V.P.,
we held that the district court did not clearly err in determining that the child
had not benefitted from her IEP where her improved test scores were due to
“unapproved deviations from [her] IEP,” meaning that there was no
acceptable evidence that the child was actually progressing due to her IEP.
582 F.3d at 590–91.
10
Hovem reviewed the district court’s factual findings de novo because it concluded
that the district court had applied an incorrect legal standard. 690 F.3d at 397, 399–400.
We are uncertain that this was the correct approach. See Veasey v. Abbott, 830 F.3d 216,
229 (5th Cir. 2016) (en banc) (explaining that, where a district court’s fact-finding was
premised on a legal error, the proper remedy is to vacate and remand “unless the record
permits only one resolution of the factual issues” (quoting Pullman-Standard v. Swint, 456
U.S. 273, 292 (1982))). Because it is immaterial here, we leave the issue of Hovem’s
continuing viability to another day.
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After his IEP was implemented, D.C.’s STAAR reading score
improved but remained below grade level; his reading fluency score
marginally increased, 11 but was still well below the grade level expectation;
and his reading MAP score improved to just below average. The most
pronounced improvement came on the STAAR exam, but, as the district
court noted, because the District provided D.C. with an additional
accommodation on his fifth grade STAAR exam that he did not have in fourth
grade, it is unclear whether D.C.’s improved score was attributable to an
increase in his reading ability or merely due to his changed testing conditions.
Consequently, as in V.P., D.C.’s STAAR results were not reliable evidence
of a benefit stemming from the IEP.
Even if the STAAR results are not discounted, D.C.’s test scores do
not present the sort of strong evidence of improvement that we relied on in
Hovem and Bobby R. Unlike the child in Hovem, D.C. was not consistently
meeting grade-level expectations, as his reading fluency and STAAR results
were below grade level. Further, although there was some improvement,
such improvement was paltry compared to Bobby R., where the district
court’s finding of demonstrated benefits was supported by increased scores
in at least ten different areas. 200 F.3d at 349–50, 349 n.3; see also Michael Z,
580 F.3d at 295 (affirming the district court’s finding that the child “received
minimal educational benefits” despite “a few isolated instances of arguable
academic success”). Accordingly, in light of our precedents and the
evidence in the record, 12 we cannot say that the district court clearly erred in
11
Specifically, D.C.’s reading fluency improved from 75 to 80 words correct per
minute (“wcpm”)—at least 38 wcpm below the grade level expectation of 118–27 wcpm.
12
In addition to D.C.’s grades and test scores, the District emphasizes the
testimony of D.C.’s teacher that, by the end of fifth grade, D.C. was able to read aloud with
confidence. Because the teacher’s perception of D.C.’s confidence is entirely subjective,
this evidence is of limited value. See D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 563, 568
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concluding that D.C. did not receive meaningful demonstrated benefits from
his IEP.
3. Collaboration and Least Restrictive Environment
We have repeatedly emphasized that district courts do “not legally err
by affording more or less weight to particular Michael F. factors.” Id. at 294;
accord R.S., 951 F.3d at 330. We have also explained that “district courts are
[not] required to consider” these factors at all, so long as their analysis
comports with the substantive standard set forth by the Supreme Court.
Michael Z, 580 F.3d at 293; see also Michael F., 118 F.3d at 253 (explaining that
the “four factors can serve as indicators of whether an IEP is reasonably
calculated to provide a meaningful educational benefit under the IDEA”
(emphasis added)).
Given these precedents, the district court did not legally err in its
treatment of the collaboration and least-restrictive-environment factors. It
was well within the district court’s prerogative to conclude that the District’s
efforts to collaborate with D.C.’s parents did not outweigh its failure to
provide him with an individualized IEP and the absence of meaningful
demonstrated benefits. It was also permissible for the district court to
conclude that the least-restrictive-environment factor was not at issue
because neither party disputed that general education was the appropriate
environment for D.C. See Michael Z, 580 F.3d at 293–95 (affirming the
district court’s conclusion that the IEP was inadequate where the district
(3d Cir. 2010) (concluding that the hearing officer appropriately discounted “subjective”
measures of academic performance). Moreover, the District points to nothing in the record
establishing that the ability to read aloud is a dispositive indicator of a child’s reading
comprehension ability; for example, a child might enthusiastically read aloud from a text
written in a foreign language without understanding a single word. Thus, this testimony
does not undermine the district court’s conclusion.
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court did not address the least-restrictive-environment factor because the
child’s parents did not dispute it); cf., e.g., Brillon v. Klein Indep. Sch. Dist.,
100 F. App’x 309, 311–15 (5th Cir. 2004) (per curiam) (extensively
discussing the least-restrictive-environment factor where the child’s parents
sought to move the child into general education classes from special
education).
To sum up, the district court did not clearly err in concluding that the
IEP was not individualized and did not provide demonstrated benefits, did
not err in concluding that the least-restrictive-environment factor was not at
issue, and did not err in concluding the balance of the factors favored D.C.
Accordingly, we AFFIRM the district court’s conclusion that the District
denied D.C. a FAPE by providing him with an inadequate IEP.
C. Compensatory Education
The District also appeals the district court’s denial of its counterclaim
to vacate the hearing officer’s award of compensatory education to D.C.
However, D.C. maintains that the issue is moot because the District has
already provided the full amount of the compensatory education award, and
there is no way to take it back. 13 Because mootness goes to our subject-matter
jurisdiction, we must resolve this issue before proceeding further. Goldin v.
Bartholow, 166 F.3d 710, 718 (5th Cir. 1999) (“We have no power under
Article III to decide the merits of a case that is moot when it comes before
us.”).
A claim becomes moot “[i]f an intervening event renders the court
unable to grant the litigant ‘any effectual relief whatever.’” Dierlam v.
Trump, 977 F.3d 471, 476 (5th Cir. 2020) (quoting Calderon v. Moore, 518 U.S.
13
During the pendency of the proceedings before the district court, the District
began providing D.C. with the awarded compensatory education.
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149, 150 (1996)), cert. denied, 141 S. Ct. 1392 (2021) (mem.). So, typically, if
the plaintiff represents to a court that it is no longer seeking relief on its claim,
the case is moot. See Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834 F.2d
208, 211–15 (1st Cir. 1987) (concluding that an appeal was moot as to the issue
of whether to remand a claim to state court because the plaintiff had
represented to the state court that it would not pursue that claim regardless
of the result of the federal appeal and was therefore judicially estopped from
pursuing that claim); 13B Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and
Procedure § 3533.2 (3d ed. 1998) (“There can be no doubt that an action
is mooted if the plaintiff voluntarily withdraws.”). Similarly, if the defendant
credibly pledges to the court that it will provide the plaintiff’s requested
relief, the case is moot. See Lee ex rel. MacMillan v. Biloxi Sch. Dist., 963 F.2d
837, 839 (5th Cir. 1992) (concluding that the case was moot because the
defendant had committed to providing the plaintiff with her requested relief).
But see Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 189 (2000) (explaining that “a defendant’s voluntary cessation of a
challenged practice” will moot a case only if the defendant carries “[t]he
heavy burden of persuading the court that the challenged conduct cannot
reasonably be expected to start up again” (internal quotation marks,
alteration, and citations omitted)).
Interestingly, this case falls into both of these buckets: When the
District filed its counterclaim, it had not yet provided D.C. with the full
amount of the compensatory education award, so if the district court had
entered judgment in favor of the District and vacated the hearing officer’s
award, the District would have been relieved of the burden of providing some
portion of the award. But, at oral argument, both sides seemed to agree that
the District has now provided D.C. with the entirety of the compensatory
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education award. 14 Therefore, D.C. has credibly relinquished any claim to
additional compensatory education, thereby providing the District with the
substantive relief it sought—to be relieved of the burden of continuing to
administer compensatory education to D.C. That is, no matter whether one
views D.C. as the plaintiff or the defendant on the compensatory education
issue, 15 D.C.’s representations to us are enough to render the issue moot. See
Patriot Cinemas, 834 F.2d at 211–15; Lee, 963 F.2d at 839.
Further, the District has expressly conceded that compensatory
education cannot be disgorged. Consequently, there is apparently no dispute
that if we were to vacate the hearing officer’s award of compensatory
education, there would be no substantive change in the parties’ relationship
and no gain provided to the District
So, the only remaining question is whether ordering vacatur provides
“effectual relief” even if the vacatur would not change the relationship
14
D.C. stated that all of the awarded compensatory education “was provided,” and
he disclaimed any interest in the provision of additional compensatory education. When
the District was asked about the issue, it declined to represent that any hours of
compensatory education remain outstanding, instead invoking the “capable of repetition,
yet evading review” exception to mootness, and arguing that the compensatory education
issue is material to the issue of whether D.C. was entitled to attorneys’ fees. Even if the
District did not affirmatively agree with D.C.’s position that all of the awarded
compensatory education has been provided, the District has abandoned any argument to
the contrary by failing to assert such an argument despite our direct questioning. See
NAACP v. City of Kyle, 626 F.3d 233, 236 & n.2 (5th Cir. 2010) (explaining that the
plaintiffs had apparently abandoned their associational-standing claim by failing to invoke
it when directly questioned at oral argument).
15
Such a determination is complicated because D.C. and the District have each
played the role of plaintiff on this issue at different points in this litigation: D.C. was the
plaintiff in the administrative hearing, but the District is the (counterclaim) plaintiff in the
present federal lawsuit. Regardless of how the roles are assigned, given the intervening
events, we are confident that we can no longer grant either party any effectual relief
regarding the compensatory education award.
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between the parties. The answer is “No”; once the parties have lost their
“concrete interest” in the litigation, the case is moot. Knox v. Serv. Emps.
Int’l Union, Local 1000, 567 U.S. 298, 307–08 (2012) (internal quotation
marks and citation omitted). Indeed, if the contrary were true, it would be
impossible for any case to become moot on appeal, as there is always an
underlying judgment adverse to one of the parties that might be vacated. Yet,
it is not impossible for cases to become moot on appeal. E.g., N.Y. State Rifle
& Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020) (per
curiam). Therefore, vacatur is not an effectual form of relief in-and-of itself.
In the closing minutes of oral argument, the District attempted to
invoke the “capable of repetition, yet evading review” exception to
mootness. Because the District did not present this argument in its briefing,
it has been waived. See, e.g., Cornucopia Inst. v. USDA, 560 F.3d 673, 675 n.3
(7th Cir. 2009) (“At oral argument, Cornucopia made brief reference to the
‘capable of repetition yet evading review’ exception to the mootness
doctrine. However, Cornucopia has waived this argument by failing to raise
it in its briefs.”); M.L. v. El Paso Indep. Sch. Dist., 369 F. App’x 573, 577 n.6
(5th Cir. 2010) (per curiam) (“In his brief, Appellant did not argue that his
claims were saved by any exception to the doctrine of mootness. As a
consequence, all such arguments are waived.”). Finally, the District also
maintains that we must resolve the compensatory education issue to
determine whether D.C. was a prevailing party entitled to attorneys’ fees.
But, as explained below, that is not so.
D. Attorneys’ Fees
The District challenges only D.C.’s prevailing party status, not the
amount of the district court’s fee award. Under the IDEA, a child is a
prevailing party such that the child may receive attorneys’ fees if he “attains
a remedy” that: (1) “alters the legal relationship between the school district
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and the [child with disabilities]”; (2) “fosters the purposes of the IDEA”;
and (3) “receives judicial imprimatur.” Lauren C. ex rel. Tracey K. v.
Lewisville Indep. Sch. Dist., 904 F.3d 363, 374 (5th Cir. 2018) (internal
quotation marks and citation omitted).
Even setting the compensatory education award aside, D.C. received
such a remedy, as the hearing officer ordered the District to modify D.C.’s
IEP so as to provide him with reading comprehension instruction using Read
180 or a similar program. See Krawietz, 900 F.3d at 676, 678 (concluding that
the child was a prevailing party because the hearing officer had ordered the
district to modify the child’s IEP). This modification: (1) clearly altered the
relationship between D.C. and the District to D.C.’s benefit; (2) fostered the
IDEA’s purposes by providing D.C. with “appropriate special services
necessary to education that [D.C.] had not received prior to the request for a
due process hearing,” Angela L. v. Pasadena Indep. Sch. Dist., 918 F.2d 1188,
1195 (5th Cir. 1990); 16 and (3) received the required judicial imprimatur, see
Lauren C., 904 F.3d at 374 (noting that a hearing officer’s order confers the
necessary judicial imprimatur). Hence, we may uphold the district court’s
determination that D.C. was a prevailing party without considering the
appropriateness of the hearing officer’s award of compensatory education.
We AFFIRM.
16
In Lauren C., we misquoted Angela L. as stating that a remedy fosters the IDEA’s
purposes if the child “receives any appropriate special services that the child had not
requested prior to the request for a due process hearing.” Lauren C., 904 F.3d at 376
(emphasis added) (misquoting Angela L., 918 F.2d at 1195). Under our rule of orderliness,
“one panel of this court cannot overrule the decision of another panel.” United States v.
Dial, 542 F.3d 1059, 1060 (5th Cir. 2008) (per curiam) (quotation omitted). Thus, our
misquote in Lauren C. did not alter the rule established in Angela L., which we follow here.
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Don R. Willett, Circuit Judge, dissenting:
I cannot join the majority opinion because, in my judgment, this case
presents no child find violation, no IEP inadequacy, and no basis for a
compensatory education award.
My two principal areas of disagreement:
1. Whether or not the majority correctly concluded that the
IEP was inadequate, the compensatory education award is
inappropriate.
2. On this record we cannot conclude that the IEP was
inadequate.
I
For starters, the compensatory education issue is not moot.
Additionally, and under any standard of review, D.C. is not entitled to the
compensatory education award he received.
A
The majority opinion mistakenly declines to address compensatory
education on mootness grounds, pointing to judicial estoppel and waiver.
This confusion began as a throwaway argument: In a single paragraph, D.C.
posited that we “may . . . query” whether the compensatory education award
is moot, based on the assertion that the District provided some quantity of
compensatory education. D.C. did not explain this equivocation, provide any
reasoning, or cite any authority; plus, as D.C. conceded, his mootness
contention relies on factual assertions not found in the record. 1
The majority opinion disregards the latter problem. To save the
former, the majority opinion tries to fill in some reasoning: D.C. is judicially
1
See supra III.C.
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estopped from claiming further compensatory education, thus mooting the
District’s claim for reversal of compensatory education. I see at least three
problems with this approach.
First, as the majority opinion acknowledges, mootness applies only
when the court cannot grant any effectual relief. 2 That is not the case here,
however, because nothing in the record proves that the District has provided
the entire compensatory education award, nor has it “credibly pledged to the
court” that it will do so. 3 Further, we have no factual basis to conclude that
vacatur of the compensatory education award would provide no relief to the
District.
Second, judicial estoppel has nothing to do with mootness. Judicial
estoppel prevents parties from “assuming inconsistent positions in
litigation” in a manner that “play[s] fast and loose with the courts to suit the
exigencies of self interest.” 4 So, judicial estoppel is about holding parties to
the consequences of their own actions. And mootness is about claimants who
have received everything they’ve asked for. 5 Therefore, it seems inapt to say
2
See infra III.C (citing Dierlam v. Trump, 977 F.3d 471, 476 (5th Cir. 2020) (“If an
intervening event renders the court unable to grant the litigant ‘any effectual relief
whatever,’ the case is moot.” (citation omitted))).
3
Infra III.C (citing Lee ex rel. MacMillan v. Biloxi Sch. Dist., 963 F.2d 837, 839 (5th
Cir. 1992)).
4
Allen v. C & H Distributors, L.L.C., 813 F.3d 566, 572 (5th Cir. 2015) (citations
omitted); accord In re Oparaji, 698 F.3d 231, 235 (5th Cir. 2012). The three elements of
judicial estoppel are: “(1) the party against whom judicial estoppel is sought has asserted a
legal position that is plainly inconsistent with a prior position asserted in a prior case;
(2) the court in the prior case accepted that party’s original position, thus creating the
perception that one or both courts were misled; and (3) the party to be estopped has not
acted inadvertently.” Id. (citation omitted).
5
See Dierlam, 977 F.3d at 476–77 (“[E]ven when the ‘primary relief sought is no
longer available,’ ‘being able to imagine an alternative form of relief is all that’s required to
keep a case alive.’” (citation omitted)).
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that judicial estoppel’s operating on one party can moot the claims of the
opposing party as a general matter. 6
Third, the majority opinion begins by stating that it must address
mootness because it is an issue of subject-matter jurisdiction, but then
proceeds to conclude that it cannot address the capable-of-repetition
exception because of waiver. Addressing mootness is mandatory or it isn’t. If
parties can’t forfeit arguments against subject-matter jurisdiction (i.e.,
mootness arguments), they can’t forfeit arguments in favor of subject-matter
jurisdiction (i.e., exception-to-mootness arguments). 7
B
D.C. is not entitled to the compensatory education award he received
because he has unclean hands. Further, he has the burden of proof but no
evidence supporting his award.
1
As to unclean hands, D.C.’s aunt, who works for his lawyer, pressured
the District into providing the unnecessary services for dyslexia that D.C.
now challenges. 8 According to the hearing officer, she “set the tone for the
meeting by informing the ARD Committee that she had ‘sued’ her own
6
We have held once that judicial estoppel mooted a bankruptcy trustee’s motion to
substitute as the real party in interest in a maritime liability-limitation action, in place of the
bankruptcy debtors who’d filed a personal-injury claim in that action. In re Superior
Crewboats, Inc., 374 F.3d 330, 336 (5th Cir. 2004). We later declined to apply Superior
Crewboats beyond its facts, and it suffices to say that this case bears no resemblance to
Superior Crewboats. Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 386 (5th Cir. 2008).
7
Cf. Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167, 190–94 (2000)
(reaching conclusion on mootness via addressing the capable-of-repetition exception);
accord Finnie v. Lee Cnty., 541 F. App’x 368, 372 (5th Cir. 2013).
8
D.C.’s aunt began attending ARD meetings on February 7, 2018.
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child’s school district ‘six times’ and had been encouraging [D.C.’s] mother
to do the same . . . for several years.” The meeting was described as
“unpleasant,” “very charged and contentious,” “tough,” “hectic,” and
“exhausting.” D.C.’s aunt was “‘demeaning’ to staff members from the
District.” And she hijacked the proceedings: “The evaluator who had
conducted the [full individual evaluation for special-education eligibility] did
not have a chance to discuss the evaluation,” and the District’s diagnostician
“could not even fully present her own opinions.” “Instead, [D.C.’s] aunt
insisted to the ARD Committee that [he] should qualify as a student with
Dyslexia.”
As D.C. acknowledges, a compensatory education award is equitable
relief. 9 And “he who comes into equity must come with clean hands.” 10 The
unclean hands doctrine prohibits equitable relief when “an individual’s
misconduct had immediate and necessary relation to the equity that the
individual seeks.” 11 It is entirely unfair for D.C. (really, his lawyer) to recover
9
See Eltalawy v. Lubbock Indep. Sch. Dist., 816 F. App’x 958, 964 n.9 (5th Cir. 2020)
(“Compensatory education is an equitable remedy commonly sought in cases involving
alleged violations of the Individuals with Disabilities Education Act (IDEA).” (collecting
authorities)); accord P.P. v. Nw. Indep. Sch. Dist., 839 F. App’x 848, 857 (5th Cir. 2020)
(noting that the IDEA authorizes the district court to “grant such relief as the court
determines is appropriate,” which makes “equitable considerations . . . relevant in
fashioning relief” (first quoting 20 U.S.C. § 1415(i)(2)(C)(iii), and then quoting Sch.
Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, 374 (1985)).
10
Restatement (Third) of Restitution and Unjust
Enrichment § 63 (Am. L. Inst. 2011); see also 4 Charles Alan Wright &
Arthur R. Miller, 4 Fed. Prac. & Proc. Civ. § 1043 (4th ed. 2021) (explaining
that after the merger of law and equity, “the maxims of equity continue to be a factor in
determining both the plaintiff's right to be heard on a claim for equitable relief,” including
“the notion that a party seeking equitable relief must not have “unclean hands’”).
11
Glenn A. Guarino et al., Misconduct of applicant; “clean hands” doctrine as
consideration in granting injunctive relief, 19 Fed. Proc., L. Ed. § 47:22. Accord
Restatement (Third) of Restitution and Unjust Enrichment § 63
(Am. L. Inst. 2011) (“The idea is that a person who engages in inequitable conduct may
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against the District for providing the wrong services because D.C. (really, his
lawyer) succeeded in forcing it to provide exactly those services. P.P. v.
Northwest Independent School District helps us here. 12 There, compensatory
education was unwarranted because the parents “rejected several remedial
services offered” by the district and “stymied [the district’s] efforts” by
refusing meetings and “refusing to adopt agreed-upon revisions” to the
proposed IEP. 13 So too here. D.C. agreed with the IEP developed via the
ARD process, declined compensatory services offered, and declined a follow-
up meeting with the ARD committee.
2
P.P. also illuminates the second reason D.C. is not entitled to the
compensatory education award he received—his need for and lack of proof.
“Plaintiffs b[ear] the burden in the underlying due process hearing and on
district court review to establish entitlement to compensatory education.”14
The plaintiff in P.P. failed to carry this burden because the expert who
testified that P.P. needed 240 hours: (1) had no experience with P.P.’s
learning disability, (2) did not review P.P.’s records, and (3) could not
articulate any problem with the district’s program. 15 Likewise, D.C. fails to
meet his burden. No evidence demonstrated a current need for
forfeit the right to a judicial determination of what ‘equity and good conscience’ require of
the other party to the transaction.”).
12
839 F. App’x at 857.
13
Id.
14
P.P., 839 F. App’x at 857.
15
Id. at 857–58.
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compensatory education. 16 Even setting that aside, the hearing officer’s
calculation relies on evidence corresponding to a learning disability that D.C.
does not have. 17
* * *
My disagreement with the majority opinion’s compensatory-
education conclusion stands independent from my disagreement with the
IEP-adequacy conclusion. Next, however, I will explain why I believe that we
cannot conclude, on this record, that the IEP is inadequate.
II
Everyone agrees that the district court incorrectly placed the burden
of proof on the District to show that D.C.’s IEP was adequate. The majority
opinion dismisses this problem in a footnote, again relying on waiver. But I
am not persuaded that we can disregard the District’s burden-of-proof
16
It is undisputed that there is no evidence that D.C. still needed compensatory
education by the time of the due process hearing; instead, the most recent evidence
indicated that D.C. ended fifth grade at grade level.
17
D.C.’s first expert said that 20 hours of compensatory education were necessary,
after retracting his previous testimony that 60 to 80 hours were necessary as “an irascible
senior moment.” D.C.’s second expert testified that D.C. was entitled to 30 to 45 minutes
of dyslexia instruction, individually or in a small-group format, for each day he’d been
deprived of services. Despite concluding that dyslexia services were inappropriate for D.C.,
the hearing officer apparently relied on the second expert and concluded that D.C. was
owed 45 minutes of individual reading-comprehension instruction, four days per week, for
the year starting November 17, 2017, when the district would have timely convened an
ARD meeting. The hearing officer did not walk through his calculation, but the number can
be reached as follows: A school year is 75,600 minutes, Tex. Educ. Code § 25.081(a),
and a school day must be at least 420 minutes, id. § 25.0815(b)(2)(B); therefore, the school
year is 180 days or 36 weeks. (45 minutes x 4 days/week x 36 weeks = 6,480 minutes or 108
hours.) D.C. identified no evidence showing that dyslexia remediation is interchangeable
with remediation for reading-comprehension difficulties. The district court accepted the
hearing officer’s conclusion without analysis.
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argument, however imperfectly it was raised. 18 My point is not to rehash the
district court’s resolution of factual disputes; it’s simply that the District set
forth enough evidence that we cannot dismiss the burden-of-proof error as
harmless. The majority opinion omits important facts in favor of the District
from each of the four elements of IEP adequacy. For brevity’s sake, I will
discuss only the individualization element.
As to the individualization factor, the majority examines two services:
dyslexia services and co-teach reading services. The dyslexia services are at
best a wash—D.C. relentlessly demanded them, and this limited the
District’s ability to consider other services. The dyslexia services shouldn’t
count for D.C., and they definitely shouldn’t count against the District.
The evidence regarding co-teach services is no more than a wash,
either. D.C. points to the hearing officer’s finding that the co-teaching
services were provided as an accommodation, arguing that co-teaching was
about permitting access, not ameliorating his reading-comprehension
difficulties. Yet the hearing officer relied on testimony that, in full, states that
co-teachers and general education teachers know “the accommodations and
the goals for the student” and work together to support the student.
According to the District, the “and the goals” language shows that co-teach
services were about more than accommodation.
Last, D.C. complains that the evidence does not determine how much
time the teacher spent helping him, as opposed to other children. But the
evidentiary buck stops with D.C., who, as we have consistently stated, bears
18
T. B. by & through Bell v. Nw. Indep. Sch. Dist., 980 F.3d 1047, 1057 (5th Cir. 2020)
(Higginson, J., dissenting) (citing Jefferson v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir.
2018) (“[P]arties cannot waive the application of the correct law or stipulate to an incorrect
legal test.”)).
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the burden to prove the inadequacy of the IEP. 19 Further, D.C. has no answer
to the following evidence of individualization:
• The District correctly identified D.C.’s reading-
comprehension issues.
• The ARD committee agreed on IEP goals for reading
comprehension and fluency and provided a certified special
education teacher to implement those goals.
• D.C.’s certified special-education teacher was provided as
a “service” on the IEP; elsewhere the IEP provided
“accommodations.”
• The IEP scheduled 3.75 hours of co-teaching services to
occur only during D.C.’s reading class.
• Only D.C.’s reading grade has both a regular education
component and a special education component.
• D.C. received 40 minutes a day, 5 days a week of Leveled
Literacy Intervention, the District’s research-based
program “to address his reading comprehension and
fluency” difficulties.
If D.C. and the District come out evenly on the evidence related to
dyslexia and co-teaching services—not to mention if the District has the
better of D.C. in this regard—we cannot say that the evidence is “substantial
and undisputed” or “overwhelmingly one-sided” in D.C.’s favor, such that
the district court’s burden-of-proof error was harmless. 20
19
See, e.g., Richardson Indep. Sch. Dist. v. Michael Z, 580 F.3d 286, 292 n.4 (5th Cir.
2009) (collecting cases).
20
Sealed Appellee 1 v. Sealed Appellant 1, 767 F.3d 418, 424–25 (5th Cir. 2013).
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Facing similar errors, we have previously reversed or vacated and
remanded, depending on the state of the evidence. 21 On this record, in my
view, the evidence heavily favors the District and reversal would be
appropriate. At minimum, however, we should vacate and remand.
* * *
For these reasons among others, the majority opinion has, in my view,
mistakenly substituted its “own notions of sound educational policy for those
of the school authorities” we review. 22
21
Compare Veasey v. Abbott, 830 F.3d 216, 229 (5th Cir. 2016) (en banc) (explaining
that, when factual findings are premised on a legal error, we vacate and remand unless “the
record permits only one resolution of the factual issue”) (quoting Pullman-Standard v.
Swint, 456 U.S. 273, 292 (1982)), with Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 397
(5th Cir. 2012) (reversing and explaining that “[f]actual findings made under an erroneous
view of controlling legal principles are reviewed de novo”).
22
Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017).
34