IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 4, 2007
No. 06-41588 Charles R. Fulbruge III
Clerk
ALVIN INDEPENDENT SCHOOL DISTRICT,
Plaintiff-Appellee,
v.
AD, by next friend Patricia F,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before KING, GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellant A.D. appeals the district court’s judgment in favor of Appellee
Alvin Independent School District (“AISD”), finding that the Special Education
Hearing Officer (“Hearing Officer”) improperly determined that A.D. meets the
definition of “child with a disability” under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400-91. We AFFIRM.
1
I.
A.D. is a student in AISD diagnosed with Attention Deficit Hyperactivity
Disorder (“ADHD”). A.D. receives medical treatment for his ADHD, including
prescriptions for ADHD medications. He has attended AISD schools since he
was three years old, and he participated in the district’s Early Childhood and
Preschool Program for Children with Disabilities on the basis of a speech
impediment. Because of both the speech impediment and the ADHD, A.D.
qualified for special education services through third grade, at which point his
mother and school personnel agreed that he no longer qualified for those
services. After his dismissal from special education, A.D. performed well
throughout elementary school.
Starting in seventh grade, however, A.D. began to exhibit behavioral
problems. He received numerous discipline referrals, and teachers removed him
several times from the classroom and sent him to in-school suspension. A.D. was
placed in the “At Risk” program at Alvin Junior High, which involved a Student
Success Team consisting of several school personnel meeting regularly to discuss
his performance. A.D. continued to pass all of his classes and met the statewide
standards required by the Texas Assessment of Knowledge and Skills (“TAKS”).
A.D.’s behavioral problems continued throughout eighth grade. Around
this time, A.D. faced the tragic death of his baby brother. Additionally, A.D.
2
began to abuse alcohol, developed a strained relationship with his stepfather,
and his mother was expecting a new baby. In response to these events and
A.D.’s ongoing behavioral problems, the Student Success Team met with A.D.
and drafted an “Academic and Behavior Contract,” which required A.D. to abide
by certain standards, such as taking his medication every day, following the
dress code, and completing assignments on time. A.D. signed the contract and
attended all but three of the remaining days in the school year. However, the
behavioral problems continued. The Student Success Team recommended, but
did not implement, two interventions.
A.D.’s behavioral issues culminated in theft of property and robbery of a
school-sponsored concession stand. Due to the latter incident, A.D. was sent to
in-school suspension for ten days, and AISD eventually recommended A.D.’s
placement in an alternative education program. Even with these issues,
however, A.D. passed the eighth grade with one A, three Bs, two Cs, and one D
and passed the TAKS test, receiving an evaluation of “commended” on the
reading portion.
On May 11, 2005, while the disciplinary decision for A.D.’s theft was
pending, A.D.’s mother requested that A.D. receive special education services.
On May 25, 2005, she requested a due process hearing1 before an impartial
1
The due process hearing was requested pursuant to 20 U.S.C. § 1415(b)(1), (f); 34 C.F.R. § 300.502,
.507; 19 TEX. ADMIN. CODE § 89.1170. Any party aggrieved by the outcome of the due process hearing may file a
3
hearing officer selected by the Texas Education Agency, alleging that AISD
violated A.D.’s right to a “free appropriate public education”2 by failing to: (1)
identify A.D. as a child with a disability, (2) evaluate A.D. as a child with a
disability, and (3) place A.D. in special education. In response, the Admissions,
Review, and Dismissal Committee (“ARD Committee”) undertook a “full and
independent evaluation” of A.D. that involved various psychological, behavioral,
and intelligence tests; informal evaluations with a psychologist, an educational
diagnostician, teachers, and A.D.’s mother; and a review of school files. The
ARD Committee requested information from A.D.’s treating physicians but did
not receive it before completion of the written report.
In the written report, A.D.’s cognitive abilities were found to be in the
average range. Dr. Peters, the evaluating psychologist, concluded that A.D.’s
symptoms of ADHD did not prevent him from making age-appropriate academic
and social progress. Ms. McDaniel, the educational diagnostician, concluded
that A.D.’s academic performance was “high average” in basic reading skills and
“average” in all remaining areas. Approximately one month later, AISD received
the information requested from A.D.’s treating physicians, Dr. Kazmi and Dr.
Nguyen, who recommended special education services for A.D. AISD also
civil action in state or federal court. 20 U.S.C. §1415(i)(2); 34 C.F.R. §300.516.
2
See Part III, infra.
4
received a report from Dr. Rasheed, a new, privately obtained psychiatrist, who
recommended special education services. On August 25, 2005, the ARD
Committee met to consider the reports and concluded that A.D. was not eligible
for special education services. A.D.’s mother disagreed with the result and
requested an “independent educational evaluation” pursuant to 20 U.S.C. §
1415(b)(1). AISD denied the request and initiated a due process hearing.3
The due process hearing took place on November 10 and 11, 2005. The
Hearing Officer reviewed the record and heard testimony in support of A.D. from
Dr. Kazmi, Dr. Nguyen, Dr. Rasheed, and Dr. Sharp, a psychologist who
reviewed A.D.’s file but never met him. The Hearing Officer heard testimony
from A.D.’s teachers and Dr. Peters in support of the ARD Committee’s
determination that A.D. was not eligible for special education services. Several
teachers testified that A.D. was well-liked by his teachers and peers and agreed
with Dr. Peters’ conclusion that A.D. was making age-appropriate social
progress. The Hearing Officer concluded that A.D. was a “child with a disability”
entitled to special education services and that AISD failed to provide him with
a “free appropriate public education.” Additionally, the Hearing Officer
concluded that AISD’s “full and independent evaluation” was incomplete because
a licensed physician was not part of the ARD Committee as required by 19 TEX.
3
It is unclear from the record whether the due process hearing was conducted pursuant to the
request from A.D.’s mother or AISD.
5
ADMIN. CODE §89.1040(c)(8) and, thus, determined that A.D. was entitled to an
“independent educational evaluation.”
AISD appealed the decision in federal district court, and both parties filed
cross-motions for summary judgment. On October 6, 2006, the district court
granted AISD’s motion for summary judgment and denied A.D.’s motion, finding
that A.D. did not need special education and related services by reason of his
ADHD and was, therefore, not a “child with a disability” under the IDEA. A.D.
now appeals.
II.
A district court must accord “due weight” to the Hearing Officer’s findings.
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. ex rel. Barry F., 118 F.3d 245,
252 (5th Cir. 1997) (citation omitted). However, the district court “must
ultimately reach an independent decision based on a preponderance of the
evidence.” Id. Accordingly, the district court’s review of the Hearing Officer’s
decision is “virtually de novo.” Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127,
131 (5th Cir. 1993).
Our review of the district court’s findings of underlying fact, including
whether or not a student received an educational benefit, is for clear error.
Michael F., 118 F.3d at 252; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341,
347 (5th Cir. 2000). We apply these standards to IDEA cases notwithstanding
6
their resolution before the district court on summary judgment motions. See,
e.g., Bobby R., 200 F.3d at 345.
III.
The IDEA4 places several conditions on the provision of federal aid to state
special education programs, including that the state provide a “free appropriate
public education”5 to children with disabilities. 20 U.S. C. §1412(a)(1). A “free
appropriate public education”, which involves special education and related
services, see 20 U.S.C. §1401(9), must be “specifically designed to meet the child’s
unique needs, supported by services that will permit him ‘to benefit’ from the
instruction.” Michael F., 118 F.3d at 247-48. It thereby guarantees a “child with
a disability” as defined under the IDEA a “basic floor” of educational
4
The IDEA was reauthorized in 2004, and the new version became effective on July 1, 2005, after
the events of this case but before the case was heard and decided by the Hearing Officer. See Individuals
with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647, 2803
(codified as amended at 20 U.S.C. §§ 1400-1491). Similarly, the implementing regulations were recently
rewritten, with the revisions taking effect on October 13, 2006. See Assistance to States for the Education
of Children with Disabilities, 71 Fed. Reg. 46540 (August 14, 2006) (codified as amended at 34 C.F.R. §
300 et seq.). This opinion cites to the prior version of the IDEA and its implementing regulations. See
Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 207 (5th Cir. 1998) (citing
“to the version of the IDEA in effect at the time of the events in th[e] case”).
5
In full, 20 U.S.C. § 1401(9) defines a “free appropriate public education” as:
special education and related services that--
(A) have been provided at public expense, under public supervision and
direction, and without charge; (B) meet the standards of the State
educational agency; (C) include an appropriate preschool, elementary
school, or secondary school education in the State involved; and (D) are
provided in conformity with the individualized education program required
under section 1414(d) of this title.
7
opportunity. See Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982). The Supreme
Court notes that a “free appropriate public education” does not require states “to
maximize the potential of each handicapped child. . . .” Id. at 200.
Only certain students with disabilities, however, are eligible for IDEA’s
benefits. Specifically, to qualify for special education services a student must
both: (1) have a qualifying disability and (2) “by reason thereof, need[] special
education and related services.” 20 U.S.C. §1401(3)(A). In making this
determination, a state or local education agency (here, the ARD Committee)
must conduct a “full and individual evaluation” following statutorily prescribed
standards. 20 U.S.C. § 1414.
In this case, there is no dispute that A.D. satisfies the first prong because
ADHD is considered an “other health impairment,” a recognized qualifying
disability. 20 U.S.C. § 1401(3)(A)(i). Thus, the central dispute pertains to the
second prong: by reason of his ADHD, does A.D. need special education and
related services? AISD contends that A.D. does not need special education
services because his educational performance is adequate without them, and, in
the alternative, any need for special education services derives from sources
other than his ADHD.
A.
First, A.D. contends that the district court erred by failing to accord “due
8
weight” to the Hearing Officer’s decision. This argument is flawed. In Teague
Independent School District v. Todd L., we held that, in applying the due weight
standard, “the hearing officer’s findings are not conclusive and the district court
may take additional evidence and reach an independent conclusion based upon
the preponderance of the evidence.” 999 F.2d 127, 131 (5th Cir. 1993). In
undertaking its review, “the district court [need not] defer to [the hearing
officer’s] findings when its own review of the evidence indicates that the hearing
officer erroneously assessed the facts or erroneously applied the law to the facts.”
Todd L., 999 F.2d at 131. The district court properly cited and utilized the due
weight standard of review.6
B.
A.D. also argues that the district court applied the wrong legal standard
when determining “need” under 20 U.S.C. § 1401(3)(A). Specifically, A.D. argues
that the district court should have looked to whether or not his ADHD “adversely
affects his educational performance” rather than whether his ADHD adversely
impacts his ability to “benefit from regular education.”7
6
A.D. also asserts that both the district court and this court must apply a clearly erroneous
standard in reviewing the Hearing Officer’s factual findings. This argument is incorrect. Rather, it is the
factual findings of the district court that we review for clear error.
7
A.D. correctly asserts that this standard is used to determine what services need to be provided to
a child after he is deemed eligible for special education services under the IDEA. See Rowley, 458 U.S. at
200. Because A.D. is not eligible for special education services, this standard is inapplicable.
9
A.D.’s argument is flawed for two reasons. First, the “adversely affects a
child’s educational performance” standard is a subpart of the definition of “other
health impairment.”8 34 C.F.R. § 300.8(c)(9). Thus, establishing an adverse
effect on educational performance demonstrates that A.D. has an “other health
impairment.” As described above, however, determining that a child has an
“other health impairment” only fulfills the first prong of the “child with a
disability” analysis under 20 U.S.C. §1401(3)(A). A.D. must still fulfill the
second prong by demonstrating that, by reason of his ADHD, he needs special
education services. Therefore, the fact that A.D.’s ADHD adversely affects his
educational performance does not necessarily mean that he is eligible for special
education services under the IDEA.
Second, contrary to A.D.’s assertion, the district court did not base its
holding upon the “benefit from regular education” standard. Under this
standard, the district court would have focused exclusively on A.D.’s passing
grades and TAKS scores. Rather, the district court also considered “a variety of
sources, including aptitude and achievement tests, parent input, and teacher
recommendations, as well as information about the child’s physical condition,
8
“Other health impairment means having limited strength, viatility, or alertness, including a
heightened alertness to environmental stimuli, that results in limited alertness with respect to the
educational environment, that–(i) Is due to chronic or acute health problems such as. . .attention deficit
hyperactivity disorder. . .and (ii) Adversely affects a child’s educational performance.” 34 C.F.R. §
300.8(c)(9).
10
social or cultural background, and adaptive behavior. . . .” 34 C.F.R. §
300.306(c)(1)(i) (outlining procedures for determining “eligibility and educational
need”). Therefore, in determining whether A.D. needs special education services
by reason of his ADHD, the district court properly considered the unique facts
and circumstances of this case.
C.
Finally, A.D. argues that the district court reached an incorrect conclusion
in holding that he has no need for special education by reason of his disability.
A.D. relies primarily on the reports and testimony of his doctors; his past
behavioral issues; his failing grades on various exams and progress report cards;
and AISD’s attempts to assist A.D., such as the Academic and Behavior Contract
and A.D.’s placement in the “At Risk” program. He argues that the district court
placed undue weight on his academic performance, as determined by the TAKS
test and final class grades.
AISD responds, and the district court agreed, that A.D. does not need
special education services for several reasons. First, A.D.’s passing grades and
success on the TAKS test demonstrate academic progress. See Rowley, 458 U.S.
at 207 n.28 (“[T]he achievement of passing marks and advancement from grade
to grade will be one important factor in determining educational benefit.”).
Second, A.D.’s teachers testified that, despite his behavioral issues, he did not
11
need special education and was achieving social success in school. AISD argues
that the district court properly determined that the testimony of A.D.’s teachers,
who observed his educational progress first-hand, is more reliable than much of
the testimony from A.D.’s physicians, who based their opinions on faulty
information culled from isolated visits, select documents provided by A.D.’s
mother, and statements from A.D.’s mother about what she believed was
happening in school.9 Finally, AISD argues that much of A.D.’s behavioral
problems are derived from non-ADHD related occurrences, such as alcohol abuse
and the tragic death of A.D.’s brother. Thus, AISD asserts, any educational need
is not by reason of A.D.’s ADHD, as required by the statute. We agree with
AISD’s argument and find that the district court’s factual findings were not
clearly erroneous.
After reviewing the record, we hold that the district court properly
considered evidence of A.D.’s academic, behavioral, and social progress in
determining that A.D. does not need special education services by reason of his
ADHD and, therefore, is not a “child with a disability” under the IDEA. Because
we find that A.D. does not qualify for special education services, we need not
9
For example, Dr. Rasheed testified that she drafted her report under the mistaken impression that
A.D. was failing all of his classes and without knowledge of A.D.’s successful performance on the TAKS
test. Moreover, A.D.’s physicians measured “need” according to whether or not A.D.’s potential could be
maximized via special education services. However, as discussed above, a “free appropriate public
education” does not require maximizing a student’s potential.
12
reach his final argument regarding AISD’s alleged procedural errors.
IV.
In light of the foregoing, the decision of the district court is AFFIRMED.
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