Opinion
Civil Action No. 3:01-CV-1746-P
April 11, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are the following:
1. Plaintiff Venus Independent School District's Motion for Judgment as a Matter of Law, with an appendix, filed January 30, 2002;
2. Defendants' Response to Plaintiffs Motion for Judgment as a Matter of Law and Brief in Support, with an appendix, filed February 19, 2002;
3. Plaintiff Venus Independent School District's Reply to Defendant's (sic) Response to Plaintiffs Motion for Judgment, filed March 11, 2002;
4. Defendants' Motion for Summary Judgment, with brief in support and appendix, filed January 30, 2002;
5. Plaintiff Venus Independent School District's Response to Defendants' Motion for Summary Judgment, with brief in support and appendix, filed February 19, 2002;
6. Defendant's (sic) Reply to Plaintiffs Response to Defendant's (sic) Motion for Summary Judgment and Brief in Support, with appendix, filed March 6, 2002; and
7. Defendant's (sic) Motion to Strike Plaintiffs Late Filed Reply Brief and Memorandum in Support, filed March 28, 2002.
After a thorough review of the entire case file, the administrative record, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Plaintiffs Motion for Judgment as a Matter of Law should be DENIED, and Defendants' Motion for Summary Judgment should be GRANTED. Further, the Court is of the opinion Defendants' Motion to Strike Plaintiffs Reply should be DENIED.
BACKGROUND
This case arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (2000 Supp. 2001). In this action Plaintiff Venus Independent School District ("VISD") seeks declaratory and injunctive relief, as well as an order reversing the decision of a State of Texas Special Education Hearing Officer ("Hearing Officer"), finding that Defendant Daniel S. should have been classified as a student with other health impairment and/or serious emotional disturbance, and was a student in need of special education within the meaning of the IDEA.
Daniel S. is currently a seventh grade student residing within the VISD, and during the 2000-2001 school year attended the sixth grade at the Venus Middle School. Pl's Orig. Compl. at 2. Daniel lives with his parents Ron and Patricia S., both full time computer consultants who served as next friends of Daniel during the administrative proceedings, as well as an older sister who also attends a VISD school. Id.
By all accounts, Daniel is an intellectually gifted student with a full performance IQ level of approximately 137. Id. Unfortunately, Daniel is also a student with a history of behavior problems at school. Before he and his family moved to Venus, Daniel attended a school in Arlington, Texas. See Decision of Hearing Officer ("Hr'g Order") at 3 (Administrative Record "AR", Vol.I at 6). A 1995 evaluation performed by the Arlington Independent School District ("AISD") found Daniel to have anxiety and Attention Deficit-Hyperactivity Disorder ("ADHD"). Id. Daniel's pediatrician, Dr. Carlson, placed him on Ritalin to address those problems. Id. However, the use of Ritalin was discontinued when Daniel entered VISD, due to longstanding issues of appetite and afternoon "drug washout." Id.
The Hearing Officer also found there is history for both ADHD and depression in Daniel's Family. See Hr'g Order at 3 (AR, Vol. I at 6).
The record in this case reflects that Daniel had a number of behavioral problems and discipline referrals during the fifth grade. Id. In September 2000, Daniel's parents initiated a referral under Section 504 of the Americans with Disabilities Act, for behavior he had exhibited during the 1999-2000 school year. Id. The "504 Committee" at VISD determined that Daniel was not eligible for services under Section 504 because he did not demonstrate an "educational need" in that he was making good grades and did not appear to have learning problems per se. Id.
Discipline records also show that during the fall semester of the 2000-2001 school year, Daniel engaged in a number of disruptive behaviors at school, including: he picked up another student by the ears; blew drool through his pen onto an art table; talked or acted out during classes; stood up and danced during class; made noise during class; ran through the hall; talked and ran around the room; told a substitute teacher "I hate teachers"; used profanity in a note; used offensive language toward school personnel; refused to follow directions; wadded up a discipline referral note following a conference with the principal; laughed out loud in class; and read a magazine instead of doing schoolwork. See Hr'g Order at 4 (AR, Vol. I at 7); see also generally Petitioner's Hearing Exhibits (AR, Vol. III at 109-164). In addition, Daniel also painted his nose with black paint; yelled at a teacher; refused to follow bus driver directions; poured salt and pepper into another student's milk; failed to remain in his assigned seat; wandered around the classroom without permission; goofed off and failed to complete work; stood up in his chair; dropped books; and used a rubber band to shoot a pencil at another student. See Hr'g Order at 4 (AR, Vol. I at 7). In all, from August 2000 to January 2001, Daniel had five referrals for insubordination, three for gross acts of disrespect, two for mild acts of disrespect, one for excessive conduct marks, and one for fighting with another student. Id. Moreover, his conduct report show Daniel was given five one-to-three day suspensions and twelve in school suspensions ("ISS") during this time period. Id.; see also Petitioner's Hearing Exhibits (AR, Vol. III at 152-154).
Thereafter, sometime in October of 2000, Daniel's parents requested that Daniel be referred for special education. The VISD initiated a comprehensive individual assessment ("CIA") of Daniel on October 5, 2000, collecting various sociological, health, and behavioral-type information. Hr'g Order at 4 (AR, Vol. I at 7). In addition, a multi-disciplinary team from the Johnson County Special Education Co-op ("Co-op") conducted an educational evaluation and found that Daniel did not qualify for special education as a student with a learning disability. Id.; see also AR, Vol. III at 554-565 (Comprehensive Individual Assessment Report).
The CIA report concluded that:
"Testing results from the Differential Ability Scales ("DAS") indicate that Dan functions overall in the superior range. He had some scatter between the cluster scores. All cluster scores remained in the superior range. Dan's strongest area appears to be his verbal skills, especially verbal comprehension. Dan's weakest areas appear to be in fluid reasoning and spatial understanding. Dan may have difficulty learning new tasks and trouble with his abstract reasoning. However, Dan's level of functioning clearly exceeds the average range of functioning, and these weaknesses will have little impact in the general classroom. These weaknesses can also be associated with Dan's ADHD and limited impulse control, which cause him to make hasty decisions before full thought can be used to make his decision . . . [However,] Dan does not qualify for special education as a student with a learning disability at this time . . . [since he] does not demonstrate significant educational/development deficits . . . [and] does not demonstrate significant emotional/behavioral deficits . . . to meet eligibility for special education services based on . . . `Learning Disabled.'"See AR, Vol. III at 564.
Also as part of this CIA examination, Dr. Robert Hansen, a licensed psychologist, conducted a psychological evaluation of Daniel on November 28, 2000. Hr'g Order at 4 (AR, Vol. I at 7); see also generally AR, Vol. III at 198-209 (Hanson Report). In his analysis, Dr. Hanson concluded that Daniel did not meet IDEA eligibility for special education support services as a "seriously emotionally disturbed student," or that there was an "academic need" for such support services. See AR, Vol. III at 200. However, in reaching this conclusion, Dr. Hanson did find that Daniel readily endorsed the symptom cluster established in the DSM-IV for ADHD, though he stated also a provisional diagnosis of Oppositional Defiant Disorder ("ODD") seemed warranted. See Id.
Dr. Hanson emphasized that Daniel was currently obtaining passing grades but with occasional and short-lived failure experiences in varied classes as a result of homework noncompliance. See Id. As such, Dr. Hanson recommended a need for organizational instruction from both school personnel and family members in order to develop academic self-reliance. See Id.
Dr. Lisa Elliot, together with her assistant Lance Garrison, also evaluated Daniel sometime in December of 2000 at the request of Daniel's parents and upon recommendation from Dr. Carlson, Daniel's pediatrician. Hr'g Order at 4 (AR, Vol. I at 7); see also generally AR, Vol. III at 187-191 (Elliot Report). In her report, Dr. Elliot found that Daniel was a child with mild to moderate deficits in attention, as well as peer relational and school difficulties, characterized by verbal and at times physically aggressive behavior. See AR, Vol. III at 189. These problems, she concluded, led to significant difficulties functioning effectively in school and with peer relations. Id. Dr. Elliot also stated that: "[a]lthough Daniel exhibits some deficits in attention, they are not such that they can adequately explain his current behavioral difficulties. Daniel appears to be a very bright child as was evident in his ability to converse at a high level with the examiner and was his teacher's impressions. This, with his statement of schoolwork being hard to get into, may suggest he is not being adequately challenged." Id.
In her findings, Dr. Elliot also suggested that Daniel appeared to experience considerable anxiety and intrusive ideation regarding his difficulties at school, noting that "[t]he lack of sufficient remedy provided by the school, his impulse control difficulties, and poor peer relations have made adequate adjustment emotionally and behaviorally difficult. Such ongoing difficulties put him at risk of developing clinically significant level of depression and more severe anxiety problems, which could further impair him socially, emotionally, and academically." Id. Nevertheless, Dr. Elliot concluded that, though the results of the various tests performed were consistent with and supported the observations of Daniel's parents that he had attention deficits, multiple teacher reports and the behavioral observations made during her evaluation suggested no significant attention deficits. See AR, Vol. III at 190. As such, "the results suggest that while he likely has some difficulty sustaining attention, these difficulties do not meet necessary criteria to consider a diagnosis of Attention Deficit Hyperactivity Disorder." Id. Dr. Elliot noted that likely remedies included a combination of social skills training, short-term individual psychotherapy, and the collaborative development of a clearly defined behavior management plan based on principles of positive reinforcement. Id.
Thereafter, an Admission, Review, and Dismissal ("ARD") Committee meeting was held on January 10, 2001, to review the results of the various assessments and to discuss Daniel's eligibility for special education services. Hr'g Order at 5 (AR, Vol. 1 at 8); see generally AR, Vol. III at 514-517 (January ARD Committee Brief). The ARD meeting was later reconvened to January 23, 2001. See generally AR, Vol. III at 518-521. The Committee found that Daniel had passed his TAAS test with academic recognition in reading, and though he had made one or two C's each reporting period, he normally made mostly A's and B's. AR, Vol. III at 518. Thus, school personnel found that Daniel did not qualify for special services under either the Other Health Impaired ("OHI") or Serious Emotional Disturbance ("SED") categories, nor that Daniel exhibited an "educational need" for such services. Hr'g Order at 5 (AR, Vol. 1 at 8). Daniel's parents felt otherwise.
The Hearing Officer found there was dispute amongst the parties in this case as to whether Dr. Elliot's assessment of Daniel was adequately discussed or reviewed by the ARD Committee — noting that Daniel's parents felt school district personnel relied strictly on Dr. Hansen's assessment and failed to seriously consider Dr. Elliot's findings. Hr'g Order at 5 (AR, Vol. 1 at 8).
Meanwhile, during this time period, Daniel's pediatrician provided the necessary documentaton to support Daniel's classification as an OHI student based upon a diagnosis of ADUD. Id.; see also AR, Vol. 111 at 192. However, Dr. Carlson neglected to list any of the "functional implications" listed on the school district's OHI form. Id. As such, the Hearing Officer found this was a factor in the ARD Committee's decision that Daniel did not "need" special education services as a student with OHI. Id.
On January 5, 2001, Daniel was placed in the school district's Alternative Education Placement ("AEP") for persistent misconduct and violations of the VISD's code of conduct. Id. The AEP placement basically arose out of Daniel's persistent refusal to do his schoolwork, and for speaking disrespectfully to authority figures during the fall semester. Id.; see also AR, Vol. II at 512-513 (Angela Bailey Testimony). Daniel's parents vigorously protested the implementation of this AEP placement.
AEP is a state mandated disciplinary program designed for students who engage in certain types of misconduct as outlined in a school district's student code of conduct. See Pl.'s Mot. Judg. Matter of Law at 5-6.
Angela Bailey was the Venus Middle School principal for the 2000-2001 school year. Subsequent to the administrative proceedings in this case, the school district promoted Ms. Bailey to the position of assistant superintendent. See Pl's Mot. Judg. Matter of Law at 5 n. 2.
At first, Daniel challenged his AEP teacher and the classroom limits, and was initially oppositional, defiant, and resistant to doing his school work. Hr'g Order at 5 (AR, Vol. I at 8). However, after the first two weeks, his behavior began to improve. Id. Ultimately, he did very well in the AEP, with a few minor infractions here and there. Id. In fact, by the end of his AEP term, Daniel was completing assignments and behaving appropriately, his attitude had improved, and his AEP teacher described him as "cooperative." Id. Also at this time, Daniel had resumed a medication regimen (a daily dose of 36 milligrams of Concerta), similar to Ritalin but without the attendant side effects. Hr'g Order at 5-6 (AR, Vol. 1 at 8-9).
Upon his return from the AEP after 30 days in the program, Daniel's teachers reported that he appeared to make an extra effort to cooperate and stay out of trouble. Hr'g Order at 6 (AR, Vol. I at 9). Though he continued to be "rambunctious" and "free spirited," he now appeared to be more respectful and better able to `catch himself' in order to comply with school rules and understand the consequences for not following them. Id. There was also a significant decrease in the number of discipline referrals made by his teachers after Daniel's return from the AEP — a total of only three. Id. In her decision, the Hearing Officer noted that although Daniel continued to exhibit some noncompliant behavior, such as failing to turn in work and/or refusing to complete assigned work, his parents were supportive and very helpful in ensuring that Daniel's work was turned in when they were notified. Id.
Meanwhile, as a result of the disagreements between school personnel and Daniel's parents over Daniel's placement in the AEP and their disagreements at the January ARD meetings, Daniel's parents filed a request for hearing. Hr'g Order at 7 (AR, Vol. I at 10). While the hearing was pending, the Hearing Officer ordered the parties to collaborate and design a Behavior Intervention Plan ("BIP") which the school district would implement upon Daniel's return to middle school from the AEP. Id. Unfortunately, the parties could not agree on a BIP as Daniel's parents rejected the VISD officials' first draft for being primarily punitive. Id. However, after a few modifications were made, a BIP plan was approved and presented to Daniel's teachers, who then implemented it for the remainder of the spring semester of his sixth grade. Id.
In addition, also while the case was still pending, the parties agreed to submit Daniel to an independent educational evaluation ("IEE"), conducted by Dr. Ray Austin and Mary Crouch in March of 2001. See Hr'g Order at 7 (AR, Vol. I at 10); see also generally AR, Vol. III at 500-509 (Ray Report). In his findings Dr. Austin noted that, at the time of his examination, Daniel was exhibiting "significant symptoms of both an anxiety and depressive disorder." See AR, Vol. III at 508. Among the indicators were Daniel's psychosomatic symptoms, his worry about school, his significant mood fluctuations, difficulties with sleep, increase in weight, loss of interest in daily activities, ruminative thinking, decreased energy level, and crying spells. Id. Dr. Austin also found Daniel to display significant difficulties with attention and concentration, as well as restless and impulsive behavior, representing a longstanding history that varied from the "at risk" to "clinically significant" ranges. See AR, Vol. III at 507-508.
According to Dr. Austin, Daniel was also found to have difficulties with organization throughout the sixth grade. AR, Vol. III at 507. Several events took place within the past year and a half that appeared to have taxed Daniel's capacity to cope, among these his best friend moving away, the move to a new town and school, the departure of a significant care giver, and the transition to the more complex environment of middle school. Id. Thus, in Dr. Austin's opinion, these attention deficits, as well as the difficulties with processing complex or ambiguous situations, made Daniel particularly vulnerable to psychological distress and made him exhibit significant difficulty with impulsive control and perceiving social situations in a realistic fashion. Id. In all, making it more difficult for Daniel to develop and maintain appropriate peer relationships and to avoid and resolve conflicts when they occurred. AR, Vol. III at 508.
Dr. Austin concluded that, based on the results of the rating scales completed by Daniel's parents and teachers, as well as other qualitative observations made during the examination, Daniel's problems with attention, concentration, restlessness and impulsive behavior, though they did not concisely fit within all of the characteristics for the inattentive and combined types of ADHD, were nonetheless of clinically significant levels and had elements of each. See AR, Vol. III at 508. As such, Dr. Austin recommended that Daniel receive more emotional support at school; specifically, the availablity of a school counselor whom he could rely on when stressful situations arose at school. Id. He also recommended individual psychotherapy, implementation of a behavior plan in school to address Daniel's problems with compliance, oppositionality and aggression, as well as modifications in his academic environment to reduce the amount of stimuli cognitively and socially. AR, Vol. III at 509.
Following this evaluation, the ARD Committee met again on May 11, 2001, to review the report submitted by Dr. Austin as an IEE recommendation. See AR, Vol. III at 524-527 (May ARD Committee Brief). The Committee, however, once again found no educational need for Daniel to receive special education. AR, Vol. III at 525. Among its findings, the Committee noted that the general teacher reports stated that Daniel was participating in class and adding a great deal to the classroom discussions, though occasionally he still did fail to turn in work assignments. Id. at 524. Daniel also was making good grades in his classes, was on the A/B honor roll, and had recently performed very well in a talent show in front of 400 students (the only sixth grader to perform). Id.
The ARD Committee minutes reflect that Daniel's parents were primarily concerned, not with Daniel's academic performance at the time, but that his learning was being affected by his inconsistent behavior in class. See Id. at 525. The Committee, however, found Daniel's behavior tended to be typical of his age appropriate peers, and that he was easily redirected to appropriate conduct. Id. at 524-525. Moreover, since returning from AEP, his principal had reported only two office referrals. Id. at 524. Thus, the ARD found that if Daniel could be successful in the general student population and remain educationally successful, he would not be able to be served in the special education population. Id. at 525. The Committee also held that Daniel was already receiving counseling and a behavior plan as part of the regular education process, and his maturity was being credited by the school staff for his most recent successes. Id.
Daniel's father disagreed with the Committee's findings, believing that recent changes noted in Daniel's behavior were due to the fact that the school had removed much of the pressure placed on him by simply ignoring many of his negative behaviors. Id. at 527. He also alleged that Ms. Bailey had told him the day Daniel returned from suspension that she had instructed the teachers to "back off' on making Daniel complete his work at school, a statement which she denied before the ARD Committee. Id. Mr. S also disagreed that Daniel was put in isolation to facilitate completing his homework, as Ms. Bailey had alleged, but because of his disruptions. Id.
Thereafter, Daniel's parents filed for an administrative due process hearing under the IDEA. The hearing was held on June 14-15, 2001. See AR, Vol. II at 1-564 (Hearing Transcript). On July 26, 2001, the Hearing Officer rendered her decision in this case, holding that the VISD should have classified Daniel as a student with other health impairment and/or serious emotional disturbance beginning in March 2001 as a student in need of special education within the meaning of IDEA. See Hr'g Order at 14 (AR, Vol. 1 at 17). The Hearing Officer also held that the school district's disciplinary action in placing Daniel in AEP was appropriate under IDEA, and that the RIP implemented in the spring 2001 was appropriate and provided Daniel with the requisite educational benefit within the meaning of the Act. See Hr'g Order at 14-15 (AR, Vol. 1 at 17-18).
The VISD now appeals the Hearing Officer's Order, seeking a reversal of these findings namely that. Daniel did not qualify for services under the IDEA. See Pl's Mot. for Judg. as Matter of Law at 7. Daniel's parents, meanwhile, ask this Court to sustain the administrative officer's decision that Daniel qualified for services under IDEA. See Def.'s Br. Supp. Mot. Summ. J. at 19. Each of these arguments will be considered in turn.
As neither party raised any issues with regard to the Hearing Officer's findings that the disciplinary action in placing Daniel in AEP was appropriate under IDEA, or that the RIP implemented in the spring 2001 was appropriate the Act, the Court shall not address those issues in this order.
DISCUSSION
I. Standard of Review
The standard of review under which this Court must consider the Plaintiffs challenge to the administrative officer's decision differs from that governing the typical review of summary judgment outlined in Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See Heather S. v. State of Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997); see also Sylvie M. v. Bd. of Ed. of Dripping Springs Indep. Sch. Dist., 48 F. Supp.2d 681, 694 (W.D. Tex. 1999). Under the IDEA, "any party aggrieved by the finding and decision made [by a hearing officer following an impartial due process hearing], shall have the right to bring a civil action with respect to the complaint presented . . . without regard to the amount in controversy." 20 U.S.C. § 1415 (i)(2)(A), (3) (2000). In any such action, the court shall (i) receive the records of the administrative proceedings; (ii) hear additional evidence at the request of a party; and (iii) grant such relief as it determines appropriate based upon the preponderance of the evidence. See 20 U.S.C. § 1415 (i)(2)(B) (2000).
The provision that a reviewing court base its decision on the "preponderance of the evidence" is by no means an invitation to the courts to substitute their own notion of sound educational policy for those of the school authorities which they review. Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982). This is so because the requirement that the court also "receive the records of the [state] administrative proceedings" carries with it the implied requirement that "due weight" be given to these proceedings. Id. This "due weight" which the court must give to the hearings below is not to the testimony of witnesses or to the evidence both of which the court must independently evaluate — but to the decisions of the hearing officer. See Heather S., 125 F.3d at 1053.
The IDEA, however, does not require that the district court defer to the administrative 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. See Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993). The court must ultimately reach an independent decision based on a preponderance of the evidence. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997) (emphasis added). Therefore, the district courts s review of a hearing officer's decision is one "virtually de novo." See Teague, 999 F.2d at 131; see also Cypress Fairbanks, 118 F.3d at 252 ("[G]iven its adducing of new evidence, even evidence of matters that have occurred since the administrative hearing under review, the district court proceeding under the IDEA is a hybrid, akin to a `trial de novo'").
Within this framework, the burden of proof remains on the Plaintiff as the party challenging the ruling of the administrative hearing officer. See Natchez-Adams Sch. Dist. v. Searing, 918 F. Supp.1028, 1032 (S.D. Miss. 1996) (citations omitted).
II. Defendants' Motion to Strike Plaintiffs Late Filed Reply
As a preliminary matter, the Court considers Defendants' Motion to Strike Plaintiffs Reply filed on March II, 2002. Defendants argue that under Local Rule 7.1(f), "unless otherwise directed by the presiding judge, a party who has filed an opposed motion may file a reply brief within 15 days from the date the response is filed." See Mot. to Strike Pl.'s Reply at 2. Having filed their Response to Plaintiffs Motion for Judgment as a Matter of Law on February 12, 2002, Defendants assert that Plaintiffs deadline to file a reply brief in this case was March 6, 2001, thus exceeding the deadline by five (5) days. VISD did not submit a response to Defendants' motion in order to provide a reason for its tardiness.
A decision to allow a party to supplement the record is within the court's discretion. See Nat'l Gypsum Co. v. Prostok, No. CIV. A. 3:98-CV-0869-P, 2001 WL 1499345 at *9 (N.D. Tex. Oct. 5, 2000) (Solis, J.); see also Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d 1205, 1222 (5th Cir. 1996) (applying this discretion in the context of supplementation under Rule 59(e) or 60(b)). Finding Plaintiffs Reply to be useful in this case, and that Defendants have suffered no prejudice as a result of Plaintiffs late filing, the Court exercises its discretion to allow VISD to supplement the record. As such, the Court shall DENY Defendants' Motion to Strike Plaintiffs Reply to Defendants' Response to Plaintiffs Motion for Judgment.
III. What is Required under the IDEA
Originally codified as the Education for All Handicapped Children Act ("EAHCA") of 1975, the IDEA was designed to encourage state and local education agencies to extend services to those children deemed learning disabled. See Houston Indep. Sch. Dist. v. Booby R., 200 F.3d 341, 345 (5th Cir. 2000). Being a local education agency responsible for complying with the IDEA as a condition of the State of Texas' receipt of federal funding, the statute requires the VISD (1) to provide each disabled child within its jurisdictional boundaries with a "free appropriate public education," and (2) to assure that such education is offered, to the greatest extent possible, in the education mainstream; that is, side by side with non-disabled children, in the least restrictive environment, consistent with the disabled student's needs. See Cypress-Fairbanks, 118 F.3d at 245 (citing 20 U.S.C. § 1400 (c), 1412(a)(1), (5)); see also Teague, 999 F.2d at 128.
The "free appropriate public education" that a disabled student is entitled to receive under the IDEA must be tailored to his particular needs by means of an individualized educational program ("IEP"), 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. Cypress-Fairbanks, 118 F.3d at 245. In Texas, the persons charged with preparing the IEP are known collectively as an Admissions, Review and Dismissal Committee ("ARD Committee"). Id.
The term "individualized education program" or "IEP" is defined under the Act as a written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) and that includes
(i) a statement of the child's present levels of education performance;
(ii) a statement of measurable annual goals, including benchmarks or short term objectives;
(iii) a statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child;
(iv) an explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular class;
(vii) (I) beginning at age 14, and updated annually, a statement of the transition service needs of the child under the applicable components of the child's IEP that focuses on the child's courses of study (such as participation in advanced placement courses or avocational education program); and
(viii) a statement of —
(I) how the child's progress toward the annual goals described in clause (ii) will be measured; and (II) how the child's parents will be regularly informed (by means such as periodic report cards).See 20 U.S.C. § 1401 (11), 1414(d).
The "free appropriate public education" tailored by an ARD Committee and described in an IEP, 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. Id. (citing Rowley, 458 U.S. at 188-189). In order words, the IDEA guarantees only a "basic floor of opportunity" for every disabled child, consisting of "specialized instruction and related services which are individually designed to provide educational benefit." Id. (citing Rowley, 458 U.S. at 201). Thus, the educational benefit that an IEP is designed to achieve must simply be "meaningful." Id.
A federal court's review of a special hearing officer's decision requires a two-part inquiry. First, the court must decide whether the State, through its local education agency or intermediate educational unit, complied with the procedures set forth in the IDEA. Rowley, 458 U.S. at 206-207. Second, the court must determine whether the IEP developed for the disabled child was "reasonably calculated to enable the child to receive educational benefits." Id. Because there is no challenge to the procedures used in this case, the Court proceeds to examine the second prong of the test. See Buser by Buser v. Corpus Christi Indep. Sch., 51 F.3d 490, 492 (5th Cir. 1995).
IV. Eligibility for Special Education Under the IDEA
The term "child with disability" means a child —
(i) with mental retardation, hearing impairments (including deafness), speech or language impairments (including blindness), serious emotional disturbance (hereinafter "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii) who, by reason thereof, needs special education and related services.See 20 U.S.C. § 1401 (3)(A)(i)-(ii) (2000) (emphasis added). Under the regulations promulgated by the Department of Education, "emotional disturbance" is defined as a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:
(A) an inability to learn that cannot be explained by intellectual, sensory, or health factors;
(B) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers;
(C) inappropriate types of behavior or feelings under normal circumstances;
(D) a general pervasive mood of unhappiness or depression; and
(E) a tendency to develop physical symptoms or fears associated with personal or school problems.See 34 C.F Ri. § 300.7(c)(4) (2001). Similarly, the term "other health impairment" means having limited strength, vitality 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 asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) adversely affects a child's educational performance.See 34 C.F.R. § 300.7 (c)(9) (2001) (emphasis added).
The Hearing Officer in this case determined that "it was not unreasonable for the school district to conclude that Daniel did not meet IDEA eligibility as a student with SED or OHI at the time of the January ARD meetings. However, by March [2001], the school district had more information (specifically Dr. Austin's evaluation) which confirmed that Daniel did indeed have both attentional and emotional deficits that qualified him for special education." See Hr'g Order at 10 (AR, Vol. 1 at 13). The Hearing Officer based this conclusion on the finding that, although VISD had early reason to suspect Daniel was both OHI (on the basis of ADHD) and/or suffered from emotional disturbance because of his disruptive and often inappropriate behavior during the fall semester of 2000 (as well as the number of disciplinary referrals and disciplinary measures involving him), there was sufficient confusion in the conflicting expert opinions which warranted the earlier findings of ineligibility under the IDEA. See Hr'g Order at 9 (AR, Vol. I at 12). That is, although Drs. Carison, Hanson and Elliot had all agreed that Daniel had exhibited some attentional deficits, the evidence also showed that (1) Dr. Carlson had submitted the required OHI form but had not described any functional implications; (2) Daniel was not taking any medication for ADHD at the time of the CIA; (3) Dr. Hanson, accepting the presence of ADHD, also made a diagnosis of ODD, which fell within the class of emotional disorders classified as a social maladjustment and thus outside the SED classification; and (4) Dr. Elliot, finding Daniel had a number of emotional issues, including being "at risk" for depression and anxiety, could not say in early December that the symptoms were "clinically significant" for purposes of a SED classification or that there was sufficient clinical data to meet ADHD classification. See Hr'g Order at 9-10 (AR, Vol. I at 12-13). Nonetheless, the Hearing Officer found that when VISD received the evaluation performed by Dr. Austin, at that point it should have realized Daniel's emotional and attentional issues had risen to clinically significant levels, and thus the school district should have identified Daniel as a student with OHI (arising from his ADHD) and as a student with SED. See Hr'g Order at 11 (AR, Vol. I at 14).
The Court agrees with the Hearing Officer's findings that by the time the January ARD Committee meetings took place, VISD was not obligated to find Daniel met IDEA eligibility as a student with either SED or OHI, based of the conflicting psychological evaluations available to the parties up to that point. The Court also agrees with the Hearing Officer that by March of 2001, VISD had sufficient information to find Daniel had both attentional and emotional deficits which qualified him for special education. More specifically, Dr. Austin's conclusions after his IEE examination were that Daniel exhibited "significant symptoms of both an anxiety and depressive disorder," as well as "difficulties with attention and concentration . . . restlessness and impulsive behavior . . . at clinically significant levels." See AR, Vol. III at 506-508. The evidence also establishes that by March 2001, VISD had sufficient knowledge of Daniel's disruptive and inappropriate behavior history, in addition to the diagnosis of clinically significant levels of ADHD, to suspect both SED and OHI. Under the regulations of the Department of Education, "emotional disturbance" or SED status specifically includes such behavioral manifestations as "an inability to build or maintain satisfactory interpersonal relationships with peers and teachers," "inappropriate types of behavior or feeling under normal circumstances," and "a tendency to develop fears associated with personal of school problems," which Daniel exhibited during the fall 2000 semester, and to a lesser extent during the spring semester. See 34 C.F.R. § 300.7 (c)(4). Moreover, the evaluations performed of Daniel, specifically that of Dr. Austin, demonstrated conclusive findings of significant symptoms characteristic of an ADHD diagnosis, a listed disorder under the Department of Education's definitions for OHI. See 34 C.F.R. § 300.7 (c)(9)(i).
It is undisputed here that Daniel's academic performance was well above average, however, a true measure of a child's educational performance is not strictly limited to an evaluation of his performance in academics. As the Hearing Officer noted, "behavior scales completed by Daniel's teachers showed he continued to exhibit significant levels of oppositional behavior as well as lability in a majority of his classroom environments. Teacher feedback showed problems with hyperactivity, restlessness, and impulsivity. Anxiety and social interaction problems at school were also suggested by the data. A comparison of teacher rating scales from the fall of 2000 to those compiled in the spring showed that although Daniel displayed less aggressive behavior by the spring he was still significantly oppositional. Daniel continued to demand frequent attention from teachers and displayed many negative behaviors to obtain it." Hr'g Order at 7 (AR, Vol. at 10). Therefore, the Court finds that Daniel's behavioral problems clearly affected his overall educational performance at school, and were sufficient to warrant a finding of a "child with a disability" under the IDEA.
The Hearing Officer found that at the end of his first semester in the sixth grade, Daniel's grades ranged from a 75 in social studies to an 89 in reading, with grades in the 90's for art and physical education, and in the mid and high 80's for the rest of his academic subjects. Hr'g Order at 8 (AR, Vol. at 11). At the end of the second semester, Daniel's grades ranged from an 85 in math to a 92 in study skills, with a 90 in social studies, an 87 in English, an 88 in community problem solving, and also made a 96 in PE. Id. In fact, Daniel was promoted to the seventh grade and placed in the advanced seventh grade math class. Id. Daniel also passed both portions of the TAAS test and received an Academic Recognition in reading. Id.
To qualify under the IDEA the student must also be " in need of special education and related services." See 20 U.S.C. § 1401 (3)(A)(ii) (emphasis added). As the Hearing Officer correctly noted, "educational need" is not strictly limited to academics, but also includes behavioral progress and the acquisition of appropriate social skills as well as academic achievement. See Matthew D. b/n/f Pauline D. v. Goliad Indep. Sch. Dist., Docket No. 059-SE-1098 at 6 (Decision of Hearing Officer Mar. 12, 1999) (finding that a lack of satisfactory interpersonal relationships and inappropriate types of behavior in an eight-year old, in addition to 17 disciplinary referrals in a single year, adversely affected his educational performance). Here, the Hearing Officer found that with over 20 in- and out-of-school suspensions, the documentary evidence showed that Daniel's behavior was a constant challenge to himself, his teachers (particularly in the first half of the 2000 school year) and his parents, and thus required some sort of attention. See Hr'g Order at 10 (AR, Vol. at 13).
And although there was a significant decrease in the number of discipline referrals made by his teachers between the fall and the spring semesters during the 2000-2001 school year (from more than twenty to three), see Hr'g Order at 4, 6 (AR, Vol. I at 7, 9), the evidence also shows that Daniel continued to have problems in the spring term with completing his homework assignments and with his misbehavior. In fact, Daniel's persistent refusal to do his work and disrespectful behavior toward the school staff is what led him to the AEP for six weeks in the first place.
A hearing officer in a case involving similar circumstances to those present here noted that, "the decision of whether a student who is advancing from grade to grade has an impairment for which he or she need special education and related services must be determined on an individual basis." Richard N. R. b/n/f Cynthia G. v. Corpus Christi Indep. Sch. Dist., Docket No. 349-SE-799 at 7 (Decision of Hearing Officer Nov. 29, 1999) (citing 25 IDELR 634 (OSEP, Oct. 29, 1995)). In Richard N. R., the child was a 12-year old sixth grader who the school district, through successive ARD Committees, determined did not need special education services because he demonstrated no academic need, despite the fact that he was qualified for such services as a student with OHI (attention deficit disorder). Id. at 1, 6. The ARD Committees' decisions were based primarily on the child's academic achievement during the fifth and sixth grades, including making the A-B honor roll and passing the fifth grade TAAS test. Id. at 6. The hearing officer, however, found that the ARD Committees erred in refusing to provide special education services by ignoring the child's other educational needs (i.e., his needs within the behavioral and social skills domains). See Id. at 7. In reaching this decision, the hearing officer found significant that (1) the child had attempted to avoid tasks and that his misbehavior had disrupted his education and that of his peers; (2) an independent psychologist's evaluation had confirmed that the child had behavioral and social problems along with some academic weaknesses and that he could benefit from special education services; and most significantly, (3) the child had been recently removed from his regular education placement to an alternative school for persistent misbehavior. Id. Thus, after finding that the child qualified for special education services as an OHI and that he could benefit from special education and related services, the hearing officer ordered that such services be provided by the school district in the nature of counseling, social skills training and an individual behavior management plan to address the types of persistent misbehavior that resulted in his removal from class in the first place. Id. at 7-8.
Here, the Court also finds that Daniel is not only qualified for special education and related services as an student with OHI and SED, but that there is an "academic need" for such support services. As the Supreme Court noted, the achievement of passing marks and the advancement from grade to grade is an important factor in determining educational need, see Rowley, 458 U.S. 207 n. 28, but it is only one factor in this analysis.
CONCLUSION
For the reasons stated above, having considered the entire case file, the administrative record, the parties' briefs, and the applicable law, the Court is of the opinion that Plaintiffs Motion for Judgment as a Matter of Law shall be and is hereby DENIED and Defendants' Motion for Summary Judgment shall be and is hereby GRANTED. Further, the Court is of the opinion Defendants' Motion to Strike Plaintiffs Reply shall be and is hereby DENIED.
The Court thereby AFFIRMS the Hearing Officer's decision, and further ORDERS that Plaintiff comply with the Hearing Officer's directives in designing an appropriate Individual Education Plan for Daniel in accordance with her previous orders.
Defendants have also moved for an award of attorney's fees incurred in defending this suit. The Court thereby directs Plaintiff to file a Response to Defendants' request for attorney's fees within 20 days from the signing of this Order. The Court further directs Defendants to file a reply, if any, within 15 days of Plaintiffs Response.
IT IS SO ORDERED.