United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2003
_______________________________ Charles R. Fulbruge III
Clerk
No. 02-11032
(Summary Calendar)
_______________________________
ADAM J., by next friends, on behalf of Robert J, Mr.
on behalf of Robert J, Mrs.,
Plaintiff-Appellant,
versus
KELLER INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant “Adam J.” appeals the district court’s
judgment affirming the decision of the special hearing officer in
a proceeding under the Individuals With Disabilities Education Act,
20 U.S.C. § 1400, et seq. (“IDEA”). Both the state hearing officer
and district court concluded that Defendant-Appellee Keller
Independent School District (“District”) complied with the
procedural requirements of the IDEA and that the individual
education programs (“IEPs”) developed for Adam were appropriate,
i.e., were reasonably calculated to enable him to receive
educational benefits. For the following reasons, we affirm.
I. Facts and Proceedings
Adam J. was born in 1984 and moved to the Keller School
District in the spring of 1998, while in seventh grade. By all
accounts, Adam is a very bright young man who suffers from serious
behavioral problems and Asperger’s Syndrome, a form of autism. He
was originally diagnosed, in second grade, with attention deficit
hyperactivity disorder and by fifth grade was also diagnosed with
depression and generalized anxiety disorder. In the fall of 1998,
after a comprehensive evaluation, the District determined that Adam
was eligible for special education as a child with an emotional
disturbance. The school district convened an “Admission, Review,
and Dismissal” (“ARD”) committee meeting, developed an Individual
Education Program (“IEP”), and placed Adam in a highly-structured
behavior modification class at Fossil Ridge High School. At that
time, Adam’s parents agreed to both the IEP and the behavior
modification placement.
In October 1998, Adam’s parents privately arranged for another
psychological evaluation of Adam. This evaluation revealed that
Adam suffers from Asperger’s Syndrome and Oppositional Defiant
Disorder. Adam’s parents did not notify the District of this new
2
diagnosis until May 1999.1 Later that month, the ARD committee
reconvened and Adam’s “primary” disability was reclassified as
Asperger’s Syndrome.
In September 1999, in response to severe behavioral problems
at home, Adam’s parents unilaterally removed him from Fossil Ridge
and placed him in a private residential treatment facility. Adam
earned no academic credits while in the private facility and
returned to Fossil Ridge in January 2000, where he successfully
completed the spring semester.
By August 2000, Adam’s behavior had improved, and he was able
to maintain employment at a local fast-food restaurant. In November
2000, the District removed Adam’s “emotional disturbance”
eligibility, and he was administratively “coded” for autism only.
Adam’s behavior dramatically declined, however, and he was involved
in several “major disciplinary incidents” in the fall 2000
semester. These occurrences included throwing a chair at a staff
member and throwing lighted matches at other students. The ARD
committee convened following each significant incident; and after
the fire incident, the committee determined that Adam’s behavior
was not a manifestation of his disability. The committee then
placed Adam in an “alternative educational setting” for fifteen
days. When Adam returned to Fossil Ridge, the District provided a
1
In his appellate brief, Adam maintains that “the District
was notified by Adam’s parents of [the] evaluation and
recommendation, [but] it did not obtain the report until May, 1999.
3
personal aide, and his behavior improved.
In May 2001, the ARD committee met to discuss Adam’s progress
and to develop an IEP for the 2001-02 school year. The committee
determined that Adam should remain in special education classes,
with the option of enrolling in general education electives. The
proposed IEP also provided for both parent and teacher training;
however, the District did not commit to assigning a full-time aide
to Adam in 2001. The ARD noted Adam’s academic progress and an
overall decrease in behavioral problems.
Adam’s parents disagreed with the proposed IEP and contended
that private placement, at the District’s expense, is appropriate
for Adam. In April 2001, Adam’s parents filed a request for a state
“due process” administrative hearing in accordance with the IDEA.
The state hearing officer denied all relief, and Adam appealed to
the 342d Judicial District Court of Tarrant County, Texas. The
District removed the case to the United States District Court for
the Northern District of Texas in September 2001, and summary
judgment was granted in favor of the District in August of the
following year. Adam timely appealed.
II. Analysis
A. Standard of Review
Under the IDEA, a federal district court’s review of a state
4
hearing officer’s decision is “virtually de novo.”2 The district
court must receive the state administrative record and must receive
additional evidence at the request of either party.3 The hearing
officer’s findings should be accorded “due weight,” but the
district court must arrive at an independent conclusion based on a
preponderance of the evidence.4
We review de novo, as a mixed question of law and fact, a
district court’s decision that an IEP was or was not appropriate.5
The district court’s underlying findings of fact are reviewed for
clear error.6 The party contesting the propriety of the IEP bears
the burden of establishing why the IEP and the resulting placement
are inappropriate under the IDEA.7
B. The Propriety of Adam’s IEP
The IDEA conditions federal funding on, inter alia, the
state’s providing a “free appropriate public education” (“FAPE”) to
disabled children.8 Under this act, the FAPE must be tailored to
2
Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th
Cir. 1993).
3
20 U.S.C. § 1415(i)(2); Cypress-Fairbanks Indep. Sch. Dist.
v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997).
4
Teague, 999 F.2d at 131.
5
Cypress-Fairbanks, 118 F.3d at 252.
6
Id.
7
Id.
8
Id. at 247.
5
the child’s particular needs by means of an individual education
program (“IEP”), which is a written statement prepared at a meeting
attended by a qualified representative of the school district, a
teacher, the child’s parents or guardians, and, when appropriate,
the child himself.9 In Texas, the ARD committee is charged with
preparing IEPs for disabled children.
The free appropriate public education proffered in an IEP
“need not be the best possible one, nor one that will maximize the
child’s educational potential; rather, it need only be an education
that is specifically designed to meet the child’s unique needs,
supported by services that will permit him ‘to benefit’ from the
instruction.”10 The IDEA “guarantees only a ‘basic floor of
opportunity,’ consisting of ‘specialized instruction and related
services which are individually designed to provide educational
benefit.’”11 This educational benefit “cannot be a mere modicum or
de minimis,”12 but “must be meaningful” and “likely to produce
progress.”13
When a parent challenges the appropriateness of an IEP, the
9
20 U.S.C. § 1414(d)(1)(B).
10
Cypress-Fairbanks, 118 F.3d at 247-48 (citing Bd. of Educ.
v. Rowley, 458 U.S. 176, 188-89 (1982)).
11
Id. at 248.
12
Id. (quoting Oberti v. Bd. of Educ., 995 F.2d 1204, 1213 (3d
Cir. 1993)).
13
Id. (quoting Bd. of Educ. v. Diamond, 808 F.2d 987, 991 (3d
Cir. 1986)).
6
district court’s inquiry, and ours on appeal, is limited to two
questions. First, we must decide whether the school district
complied with the procedures prescribed in the IDEA.14 Second, we
“must determine whether the IEP developed for the disabled child is
‘reasonably calculated to enable the child to receive educational
benefits.’” “If these requirements are met, the State has complied
with the obligations imposed by Congress and the courts can require
no more.”15
In this case, Adam alleges both procedural and substantive
violations of the IDEA. Most of the seven points of error Adam
raises on appeal are without merit. He asserts first that the
hearing officer’s decision should not be afforded “due weight”
because the officer was biased in favor of the school district. In
support of this allegation, Adam offers four examples of bias (1)
in a “synopsis” of the case, the officer erroneously “reframed” the
issues presented for his consideration; (2) the officer did not
provide adequate reasons for his decision; (3) the officer
incorrectly described private placement as “extraordinary relief”;
and (4) the officer “mis-cited” a case “in exactly the same way it
was mis-cited” in the District’s brief, allegedly reflecting that
he “never actually had the case before him when he wrote his
14
Buser v. Corpus Christi Indep. Sch. Dist., 51 F.3d 490, 492
(5th Cir. 1995) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-
07 (1982)).
15
Rowley, 458 U.S. at 207.
7
decision, but merely adopted the statements made in the District’s
Final Argument.”
Adam’s assertion of bias is unavailing. As a threshold matter,
he cites no authority, other than statutory provisions calling for
a “qualified and impartial mediator,” in support of his sweeping
assertion that “[w]here the decision of the Hearing Officer plainly
shows that he is biased, his decision deserves no deference by the
Trial Court.” Moreover, the district court acknowledged that its
review is “virtually de novo,” and Adam offers no evidence that the
court deviated from this standard.
We note also that the “evidence” in support of Adam’s charge
of bias is unconvincing. First, even if the hearing officer
mischaracterized Adam’s complaints in a synopsis, the officer’s
conclusions of law adequately address all of Adam’s claims;
whatever was “reframed” or “restated” in the synopsis is likely
irrelevant. Second, Adam fails to explain how the hearing officer’s
analysis, even if conclusional or scant, demonstrates bias. Third,
the officer’s reference to private placement as “extraordinary
relief” does not reflect bias and there is no evidence that the
officer applied a “higher burden of proof” to Adam’s case. Adam’s
fourth point, that the hearing officer abdicated his responsibility
and “merely adopted the statements made in the District’s Final
Argument” is specious at best, and warrants no further discussion.
Several of Adam’s remaining arguments are similarly meritless.
For example, he strenuously argues that the district court erred in
8
concluding that he “took the same courses as other students, but
tailored to his special needs,” asserting instead that his classes
were almost exclusively in the special education program. He fails,
however, to demonstrate how this factual determination is relevant
to his legal claims. Stating only that “Adam did not have an
individualized program that considered his unique needs,” Adam
appears to be arguing that these “special ed.” classes were not
sufficiently challenging, given the ARD committee’s determination
that he was academically gifted.
This argument also fails. As noted above, courts have
repeatedly held that a FAPE need not be the best one possible, or
the one calculated to maximize the child’s educational potential;
it only has to provide an educational opportunity designed to meet
the student’s specialized needs, with sufficient support services
to allow him to benefit from the instruction.16 We recognize that
the educational benefit that an IEP is designed to achieve must be
“meaningful,”17 but Adam has failed to establish that his IEPs did
not satisfy this standard.
Adam’s argument that the district court erred “in stating that
Adam’s teachers testified as to the progress he made” is similarly
without merit. First, this issue is not adequately briefed, as
Adam’s brief merely asserts summarily that “because of the lack of
16
See Cypress-Fairbanks, 118 F.3d at 247-48; see also text
accompanying note 10, supra.
17
Id. at 249.
9
specificity by the Trial Court as to which testimony it was
referring to, it is impossible to discuss that testimony here.” To
the limited extent that he does brief the issue, Adam again urges
that his progress was hampered by the low level of instruction that
he received and cites his severe behavioral problems in late 2000
and early 2001 as evidence that he actually regressed while
enrolled in the school district.
Presumably, Adam’s challenge to the district court’s factual
findings in this regard are an attempt to refute the court’s legal
conclusion that his IEP(s) at Keller were appropriate. We have
previously considered four factors as “indicators of whether an IEP
is reasonably calculated to provide a meaningful educational
benefit under the IDEA.”18 These factors 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.19
Clearly, evidence of an academic benefit militates in favor of a
finding that Adam’s IEPs were appropriate.
Adam has not established that the district court erred in
concluding that he made progress while in the District. Aside from
18
Cypress-Fairbanks, 118 F.3d at 253.
19
Id.
10
challenging a curriculum that he contends was “beneath his
abilities,” the only support Adam proffers for his no-progress
contention is his behavioral problems. Although they are severe,
these problems appear to have been improving in 2001, when Adam
returned from alternative placement and began working with a
personal aide. The district court’s conclusion that Adam made
incremental progress is not clearly erroneous.
Adam’s fifth and sixth points are likewise unavailing. Adam
argues that the district court erred in “implying” that “because
Adam’s mother ‘had no idea what was going on at school,’ the
District is “excused” from providing a FAPE. A reading of the
district court’s order dispels any such “implication.” Similarly,
Adam’s argument that the district court erred in stating that the
IDEA “guarantees only a basic floor of opportunity” is without
merit. The IDEA does guarantee “only a basic floor of opportunity,”
and although Adam correctly asserts that the IEP must be designed
to provide a “meaningful” educational benefit, the district court
expressly considered, and rejected, Adam’s claim that he received
“little or no educational benefit from his IEPs.” Characterizing
this argument as “speculative at best,” the district court cited
Adam’s academic progress and anticipated graduation, ultimately
concluding that his IEPs were reasonably calculated to enable him
to receive educational benefits. This is not clearly erroneous.
Adam asserts further that the district court erred in
concluding that he did not demonstrate that private placement at
11
the Vanguard School would be appropriate. According to Adam, the
district court’s decision in this regard was based on the fact that
Adam would not be able to interact with non-disabled peers at
Vanguard; and thus, that the private school would not provide the
“least restrictive environment” for Adam. He points out that the
presumption in favor of “mainstreaming” is overcome when a regular
classroom cannot fit the needs of a disabled child.
This argument is unpersuasive. First, because the district
court concluded that the District had provided Adam with a FAPE,
any ruling on private placement was merely dicta. Second, even if
the district court erroneously cited interaction with non-disabled
peers as a factor weighing against private placement, Adam has not
carried his burden of establishing that placement at Vanguard was
appropriate. From his brief and record excerpts, it is simply
impossible to assess the advantages and disadvantages of private
placement; Adam has not described the facilities, curriculum, or
other educational benefits Vanguard offers and has not explained
how the school will better suit his academic and behavioral needs.
Adam has, however, raised one issue which demands closer
scrutiny. Adam alleges that the District did not comply with the
procedural requirements of the IDEA and cites a litany of alleged
violations. These include (1) failure to include “measurable long-
term goals and short-term objectives” in an IEP,20 (2) failure to
20
Specifically, Adam alleges that the District failed to
include short-term objectives for “all subjects” in a January 25,
12
update Adam’s parents through regular report cards, and (3) failure
to indicate Adam’s baseline “level of competency” on at least one
IEP.21 According to Adam’s brief, as a result of these procedural
violations, his parents were “denied full participation in what
were supposed to be collaborative efforts by the ARD members.”
We have previously stated that “a school’s failure to meet the
IDEA’s procedural requirements may alone warrant a finding that, as
a matter of law, the school has failed to provide a free
appropriate public education.”22 The other circuits that have
addressed this question head on have consistently held that
2000 IEP; objectives were prescribed for Adam’s English, Math,
Science/Health, and P.E. classes.
21
The sweeping allegations in Adam’s brief of procedural
violations are largely vague and unsupported by citation to record
evidence. See, e.g., “‘[M]easurable long-term goals and short-term
objectives’ were frequently not developed . . . by the ARD
Committee as required by IDEA.”;“[T]he IEP ‘report card’ was almost
never filled in to be sent to the parents to apprise them of Adam’s
progress.” The only violation alleged with any specificity
(although without citation to the record) concerns defects in the
IEP of January 25, 2000. See F ED. R. APP. P. 28(a)(9)(A)(requiring
“contentions and the reasons for them, with citations to the
authorities and parts of the record on which appellant relies”).
22
Buser, 51 F.3d at 493 (emphasis added); Daniel R.R. v. State
Bd. of Educ., 874 F.2d 1036, 1041 (5th Cir. 1989) (“Indeed, a
violation of the [Act’s] procedural guarantees may be a sufficient
ground for holding that a school system has failed to provide a
free appropriate public education and, thus, has violated the
Act.”); compare Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458,
465 (5th Cir. 1995) (concluding that procedural violations “cannot
be said to have harmed” the student and affirming district court’s
award of nominal damages); Weil v. Bd. of Elementary & Secondary
Educ., 931 F.2d 1069, 1973 (5th Cir. 1991) (affirming district
court’s dismissal and noting that “it is apparent that any injury”
resulting from the alleged procedural violation was “de minimus and
thus damnum absque injuria”).
13
“procedural defects alone do not constitute a violation of the
right to a FAPE unless they result in the loss of an educational
opportunity,”23 but to date we have never formally adopted or
rejected this approach.24 We do so today.
After careful consideration of the procedural violations
23
T.S. v. Indep. Sch. Dist. No. 54, 265 F.3d 1090, 1095 (10th
Cir. 2001); see also DiBuo v. Bd. of Educ., 309 F.3d 184, 190 (4th
Cir. 2002) (explaining that “under our circuit precedent, a
violation of a procedural requirement of the IDEA (or one of its
implementing regulations) must actually interfere with the
provision of a FAPE”); Knable v. Bexley City Sch. Dist., 238 F.3d
755, 765 (6th Cir. 2001) (“[A] procedural violation of the IDEA is
not a per se denial of a FAPE; rather, a school district’s failure
to comply with the procedural requirements of the Act will
constitute a denial of a FAPE only if such violation causes
substantive harm to the child or his parents.”); W.G. v. Bd. of
Trustees, 960 F.2d 1479, 1484 (9th Cir. 1992) (“Procedural flaws do
not automatically require a finding of a denial of a FAPE. However,
procedural inadequacies that result in the loss of an educational
opportunity, or seriously infringe the parents’ opportunity to
participate in the IEP formulation process, clearly result in the
denial of a FAPE.”)(internal citations omitted).
24
Notably, one court has cited to Jackson v. Franklin County
School Board,806 F.2d 623, 628-29 (5th Cir. 1986), as “possible”
authority for a “per se violation” approach, under which any
violation of the IDEA’s procedural requirements constitutes a
denial of a FAPE. Doe v. Alabama State Dep’t of Educ., 915 F.2d
651, 662 n.11 (11th Cir. 1990). The District incorrectly assumes
that we have previously addressed the issue of so-called “de
minimis” procedural violations of the IDEA. Citing our decision in
Houston Independent School District v. Bobby R., 200 F.3d 341 (5th
Cir 2000), the District asserts that “[Adam] must show that the
local school district ‘failed to implement substantial or
significant provisions of the IEP’ . . . a de minimis procedural
violation will not suffice.” Houston, however, involved the
failure to implement an IEP, not procedural violations in
determining one, and thus did not address the question presented
here. Houston, 200 F.3d at 347 (noting that the plaintiff “does not
assert that [the school district] did not comply with the lengthy
procedures prescribed by the IDEA”).
14
alleged in this case, we, like the state hearing officer, conclude
that even if the determination of Adam’s January 25, 2000 IEP was
procedurally deficient in some respects, he has not established
that any procedural deficiency resulted in a loss of educational
opportunity or infringed his parents’ opportunity to participate in
the IEP process.25 On the contrary, as Adam himself asserts, “[t]he
documentary evidence shows that Adam’s mother (if not both parents)
were [sic] present at every one of his ARD meetings” and his
parents frequently submitted supplemental “parent statements” to
express their concerns and frustrations. Given Adam’s parents’
active participation in the crafting of his IEPs, and the absence
of any demonstrable “lost educational opportunity,” we conclude
that the procedural requirements of the IDEA were substantially
satisfied, even if some information was omitted from Adam’s IEP.26
We recognize that Adam’s parents are frustrated by their son’s
academic progress and that they obviously believe that his courses
at Fossil Ridge have not been sufficiently challenging, given his
ability and aptitude. Although we understand and sympathize with
their plight, our focus is necessarily narrow. Adam’s parents
simply have not demonstrated that (1) a procedural violation of the
IDEA produced substantive harm, or (2) Adam’s IEPs were not
25
W.G., 960 F.2d at 1484.
26
Doe v. Defendant I, 898 F.2d 1186, 1191 (6th Cir. 1990)
(“Adequate parental involvement and participation in formulating an
IEP,” not adherence to a “laundry list of items” are the “primary
concern in requiring that procedures be strictly followed.”).
15
reasonably calculated to provide an educational benefit.27 We are
constrained, therefore, to agree with the district court that the
District has complied with the requirements of the IDEA.
III. Conclusion
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
27
See Rowley, 458 U.S. at 207 (cautioning that “courts must
be careful to avoid imposing their view of preferable educational
methods upon the States”).
16
17
18
19
Adam J. Ex Rel. Robert J. v. Keller Independent School District
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-05-02
Citations: 328 F.3d 804
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