JOHN McBRYDE, District Judge.
Came on for consideration in the above-captioned action the complaint of plaintiff, C.C. individually, by and through his next friends, Charles Cripps and Kristie Cripps, seeking vacatur of the findings, decisions, and rulings made in the underlying Due Process Hearing by a Special Education Hearing Officer ("SEHO"), and rendition of judgment in favor of plaintiff as to the issues presented in that hearing. Having considered the complaint, the answer of defendant, Hurst-Euless-Bedford Independent School District ("the District"), the written contentions and briefs filed by the parties, the administrative record, and applicable legal authorities, the court concludes that the relief sought by plaintiff should be denied, and that the findings, decisions, and rulings of the SEHO should be affirmed.
As a condition of the State of Texas's receipt of federal education funding under the Individuals with Disabilities Education Act ("IDEA"), the District must (1) provide each disabled child within its jurisdictional boundaries a Free Appropriate Public Education ("FAPE"), and (2) assure that such education is offered, to the greatest extent possible, alongside children who are not disabled in the "least restrictive environment" suitable for the disabled student's needs. 20 U.S.C. 1412(1) & 1412(5). In order to provide a FAPE to a student with a disability, the student's education "is required to be tailored to the unique needs of the handicapped child by means of an individualized education plan [("IEP")]."
The FAPE, however, "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."
The IDEA requires any state or local educational agency receiving funds under the IDEA to "establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies." 20 U.S.C. 1415(a). Such procedural safeguards include allowing parents to play a significant role in the development of an IEP.
such an agency is also required to provide parents with an opportunity to present complaints "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child . . ." 20 U.S.C. 1415 (b) (6). If such complaints cannot be resolved at the preliminary stage, the parents may proceed to an impartial due process hearing which is generally limited substantively to whether the child received a FAPE. 20 U.S.C. 1415 (f) (1) (A) & 1415 (f) (3) (E) (i). After parents have exhausted those administrative procedures, if they are still dissatisfied with the result, they may bring a civil action in a federal district court, without regard to the amount in controversy. 20 U.S.C. 1415 (i) (2) (A).
Additional procedural safeguards are required when a school district seeks to place a student with a disability in a Disciplinary Alternative Education Program ("DAEP"). When such placement is to be for a period exceeding ten school days, the ARDC must make a manifestation determination, 20 U.S.C. 1415(k) (1) (C), which requires a finding as to whether "the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability . . ." and whether "the conduct in question was the direct result of the local educational agency's failure to implement the IEP." 20 U.S.C. 1415(k) (1) (E). However, no such manifestation determination is required when a student is sent to a DAEP for (1) less than ten school days, or (2) less than forty-five school days for engaging in conduct constituting special circumstances. 20 U.S.C. 1415(k)(1)(B) & (G). The same appeals process described above may also be followed to appeal the manifestation determination.
Plaintiff initiated this action by filing a complaint on August 11, 2014, in cause number 4:14-CV-646-A, which contained various causes of action. On December 24, 2014, the court severed the instant appeal into the above-captioned action. Plaintiff's original complaint in this severed appeal action filed January 5, 2015, asks the court to find that the SEHO erred in his findings, decisions, and rulings, and that plaintiff is entitled to damages for injuries allegedly sustained by him and his parents, punitive damages, and attorney's fees.
When a federal district court reviews a decision rendered by a SEHO's in a due process hearing under the IDEA, the court must accord "due weight" to the SEHO's findings, but must ultimately reach an independent decision based on the preponderance of the evidence.
The following is a summary of pertinent facts established by the administrative record:
On November 2, 2012, plaintiff and his parents entered into a mediation agreement with the District while he was a student at Central Junior High School, a school within the District. AR at 760-764.
The FIE was completed on or about December 19, 2012,
Plaintiff received a number of disciplinary referrals while at BJH. By the time the BIP was implemented, he had already received a number of lunch detentions, in-school suspensions, at least one Saturday school detention, and had been placed in a DAEP for a few days.
Following the investigation, Emery concluded that plaintiff's actions were conduct consistent with the felony of improper photography,
On March 4, 2013, the ARDC met to conduct a manifestation determination review ("MDR").
20 U.S.C.A. 1415(k) (1) (E).The ARDC decision was negative as to both questions. AR at 908. Plaintiff's advocate, Debra Liva,
Prior to requesting a Due Process Hearing pursuant to the IDEA, plaintiff appealed the Disciplinary Alternative Education Placement Order through the general education procedure.
On April 11, 2013, the ARDC reconvened but plaintiff's parents were not in attendance.
On January 13, 2014, plaintiff requested a due process hearing pursuant to the IDEA.
In this appeal, plaintiff challenged the following findings of the SEHO: (1) R.L. had a reasonable expectation of privacy and thus plaintiff engaged in conduct punishable as a felony; (2) the District did not violate the IDEA by failing to adjust plaintiff's IEP and placement after it was informed that the Tarrant County Juvenile Justice Authority ("TCJJA") declined to prosecute plaintiff; (3) plaintiff was provided a FAPE; (4) plaintiff received academic and non-academic benefits, despite the fact that he had a number of failing grades and only met with the Behavior Interventionist four times; (5) the academic environment was not hostile; (6) he did not have jurisdiction to entertain plaintiff's motion for expedited rehearing.
In response, the District maintained that (1) plaintiff demonstrated positive academic and non-academic benefits from the IEP and the District was not required to ensure that plaintiff's disabilities were remediated overnight, (2) the SEHO did not have jurisdiction to review the District's finding that plaintiff engaged in conduct punishable as a felony, though his finding was correct, (3) even if the District did receive notice that the TCJJA had decided not to prosecute plaintiff for a felony, such notification did not obligate the ARDC to reevaluate plaintiff's DAEP placement, (4) plaintiff was educated in the least restrictive environment, and (5) there is no evidence that the District was a hostile environment.
Plaintiff contended that the SEHO erred in upholding the District's finding that plaintiff engaged in conduct punishable as a felony. The SEHO found "that the District correctly concluded that [plaintiff]: (a) photographed R. [L.] in a bathroom and transmitted those photographs, (b) without R. [L.]'s consent, and (c) with the intent to invadeR. [L.]'s privacy." AR at 34. Plaintiff's contention is that, owing to the fact that R.L. used the toilet area without a door and allegedly posed for the photographs, the evidence does not support the SEHO's finding. The District responded that the SEHO's determination was correct, but argued that the IDEA does not give either the SEHO or this court jurisdiction to review the District's determination that plaintiff's conduct constituted a felony.
A person has committed the crime of improper photography if such person, "photographs . . . a visual image of another at a location that is a bathroom (A) without the other person's consent; and (B) with intent to: (i) invade the privacy of the other person. . . ." Tex. Penal Code. 21.15(b). Plaintiff admitted to taking three photographs of R.L. on the toilet. AR at 995-996, 1558. Based on his investigation, Emery found that plaintiff did not have R.L.'s consent to take the photographs and that plaintiff intended to invade R.L.'s privacy.
Under the IDEA, a parent of a child with a disability may request a due process hearing. 20 U.S.C. 1415 (f) (1) (A). Such hearing is solely to resolve complaints about (a) "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child . . .", or (b) the manifestation determination. 20 U.S.C. 1415(f) & (b) & (k). The SEHO's finding that plaintiff engaged in conduct punishable as a felony is not relevant to the issues he was to decide.
The IDEA provides that when the ARDC makes a negative manifestation determination, "the relevant disciplinary procedures applicable to children without disabilities [are] applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities. . . ." 20 U.S.C.A. 1415 (k) (1) (B) & (C).
Because the factual findings of the SEHO regarding R.L.'s consent and plaintiff's intent to invade R.L.'s privacy are not relevant to the inquiry under the IDEA, the court need not address the jurisdictional question presented by the District.
Plaintiff contended that the TCJJA declined to prosecute him for the felony of improper photography because of insufficient evidence and so notified the District, and that, based upon that new information, the District should have adjusted his placement. Assuming,
The month after the SEHO issued his decision and order from which the instant appeal was taken, plaintiff, through his attorney, submitted to the SEHO a document titled "Motion For Expedited Rehearing" by which he sought a reopening of his due process hearing, apparently for the purpose of entering into the hearing record prints of the photographs that plaintiff took of R.L. while the latter was seated on the toilet. AR at 303-308. After the District filed a response to that motion,
Plaintiff caused this court to become involved in his attempt to obtain a rehearing by filing a motion on October 21, 2014, in this action when it was pending as Case No. 4:14-CV-646-A, asking that this court order a remand so that the "Hearing Officer [could] admit the evidence previously denied. . . ." Case No. 4:14-CV-646-A, Doc. 19 at 2. By that motion, plaintiff sought a ruling that the proceeding be remanded to the SEHO not only for the purpose of having the SEHO reopen the hearing to take into account prints of the photographs, but also for the purpose of permitting plaintiff, through his attorney, to put into the record of the due process hearing school records pertaining to non-party students.
This court continues to be of the view that a remand was not appropriate, and would not have been required even if the only ground for the requested remand were, as stated in the June 2014 motion directed to the SEHO, to cause witness descriptions of what the photographs depicted to be clarified by an inclusion in the record of the due process hearing of prints of the photographs. There is no indication in the record that the officials of the District would have made any decisions different from those they made if they had perceived the photographs differently from what they said at the hearing, nor is there any suggestion in the record that the SEHO would have made any findings or rulings different from those contained in his May 2014 Decision and Order if he had seen prints of the photographs before he made his findings and rulings. Therefore, the issue of whether the SEHO had jurisdiction to reopen the hearing to receive prints of the photographs in evidence is moot because the record indicates that if the hearing had been reopened, and the photographs received into the hearing record, the outcome would have been the same.
In order to provide a student a FAPE, the ARDC prepares and implements an IEP, which must be "likely to produce progress, not regression or trivial educational advancement."
Plaintiff contended that he was denied a FAPE, because (1) he was not educated in the least restrictive environment, (2) no positive academic or non-academic benefits were demonstrated, and (3) his IEP was not developed in a collaborative manner by key stakeholders nor was it provided commensurate with his unique individualized needs.
Plaintiff contended that he was not educated in the least restrictive environment because he was placed in a DAEP instead of in-school suspension or detention. The IDEA required the District to "assure that such education is offered, to the greatest extent possible, in the educational `mainstream' that is, side by side with non-disabled children, in the least restrictive environment consistent with the disabled student's needs."
Plaintiff next contended he did not receive an academic or non-academic beriefit. Presumably included in this contention is plaintiff's argument that the SEHO erred in making findings of fact that (1) he received an academic benefit despite having a number of failing grades, and (2) he derived a benefit from his four meetings with the Behavior Interventionist.
The Fifth Circuit "ha[s] not held that district courts must apply the four factors in any particular way. [Its] cases state only that these factors are indicators of an IEP's appropriateness intended to guide a district court in the fact-intensive inquiry of evaluating whether an IEP provided an educational benefit."
Considering the limited time frame and the fact that the party challenging the IEP bears the burden of proving that the IEP is deficient, the court concludes that plaintiff has failed to prove that positive academic and non-academic benefits were not demonstrated.
Plaintiff contended that his IEP was not individualized because the ARDC did not consider the notice allegedly sent to the District by the TCJJA.
In developing the IEP, the ARDC "must consider— (i) [t]he strengths of the child; (ii) [t]he concerns of the parents for enhancing the education of their child; (iii) [t] he results of the initial or most recent evaluation of the child; and (iv) [t]he academic, developmental, and functional needs of the child." 34 C.F.R. 300.324 (a) (1). The ARDC must also, "[i]n the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. . . ." 34 C.F.R. 300.324(a)(2)(i). The only information regarding plaintiff which the TCJJA could have presented to the ARDC is that they decided not to prosecute the case. Even assuming,
Plaintiff attempted to bolster this contention through his argument that provisions of the Texas Education Code and the Texas Code of Criminal Procedure evinced a desire by the Texas state legislature that the District consider such a TCJJA notice. However, such argument is unavailing. The Texas Education Code authorizes, but does not mandate, that the Superintendent or his designee consider such a notice from the TCJJA in determining whether there is a reasonable belief that the student engaged in conduct defined as a felony offense.
Plaintiff incorrectly contended that the TCJJA was a key stakeholder that needed to be included in the IEP development process. The IDEA required that the IEP team include the parents, at least one of the student's regular education teachers, at least one of the student's special education teachers, a representative of the school District who is qualified to provide specially designed instructions and is sufficiently knowledgeable about the general education curriculum and availability of resources, and an individual who can interpret the instructional implications of evaluation results. 20 U.S.C. 1414 (d) (1) (B). In addition, at the parents' or agency's discretion, the team may include other individuals who have knowledge or special expertise regarding the student.
Plaintiff's sole contention regarding this factor is that the TCJJA was not included as a stakeholder. He and his parents made no argument that the meetings of the ARDC were not collaborative or that they were unheard. The court therefore does not find that the IEP services were not provided in a coordinated and collaborative manner by the key stakeholders.
Plaintiff's final contention seems to be that hostility of the District deprived him of a FAPE. Within this segment of his brief, plaintiff contended that the SEHO erred in (1) excluding the disciplinary records of other children, and (2) determining that the environment was not hostile. The court has previously held that the disciplinary records of other children are not relevant to this appeal.
Plaintiff's hostile academic environment claim seems to be that the District punished him more harshly than other students in an effort to remove him from the regular education setting, causing him to be denied a FAPE.
Plaintiff, who bears the burden of proving that he was deprived of a FAPE, has not persuaded the court that the District created a hostile environment that deprived him of an educational opportunity or interfered with his educational opportunities.
Under the IDEA, a district court has discretion to "grant such relief as [it] determines is appropriate." Michael Z, 580 F.3d at 292 (alteration in the original) (citation and internal quotation omitted). "When parents unilaterally remove their child from a public school, reimbursement for the expenses of private schooling may be an appropriate form of relief in some situations."
As the court has already determined that plaintiff has not met his burden of proving that the District did not offer him an individualized and appropriate IEP or did not make a FAPE available, plaintiff cannot satisfy the first prong of this analysis. Nor has plaintiff persuaded the court that private placement of plaintiff was proper under the IDEA. Thus, the court concludes that neither plaintiff nor his parents are entitled to reimbursement for home school costs, nor are they entitled to any other reimbursement or to damages they are seeking for alleged injuries.
The IDEA provided that "the court, in its discretion, may award reasonable attorneys' fees as part of the costs . . . to a prevailing party who is the parent of a child with a disability." 20 U.S.C. 1415(i) (3) (B). "Under the IDEA, a prevailing party is one that attains a remedy that both (1) alters the legal relationship between the school district and the handicapped child and (2) fosters the purposes of the IDEA."
In reaching the decisions and making the findings expressed in this memorandum opinion and order, the court applied the standard of review prescribed by the Fifth circuit for use in a case such as this.
Therefore,
The court ORDERS that all relief sought by plaintiff in his complaint be, and is hereby, denied, and that the findings, decisions, and rulings of the SEHO affirmed.
