Opinion
CIVIL ACTION NO. 4:19-CV-00814-RWS
2021-03-02
J.B., B/N/F LAUREN and Eric B., Plaintiff, v. FRISCO INDEPENDENT SCHOOL DISTRICT, Defendant.
Anna Rebecca Skupin, Clyde Moody Siebman, Siebman Forrest Burg & Smith LLP, Sherman, TX, Roy Tress Atwood, Atwood Gameros LLP, Dallas, TX, for Plaintiff. Meredith Prykryl Walker, Alexandra Marie Mosser, Nona C. Matthews, Walsh Gallegos Trevino Russo & Kyle PC, Irving, TX, Donald Craig Wood, Walsh Gallegos Trevino Russo & Kyle PC, San Antonio, TX, for Defendant.
Anna Rebecca Skupin, Clyde Moody Siebman, Siebman Forrest Burg & Smith LLP, Sherman, TX, Roy Tress Atwood, Atwood Gameros LLP, Dallas, TX, for Plaintiff.
Meredith Prykryl Walker, Alexandra Marie Mosser, Nona C. Matthews, Walsh Gallegos Trevino Russo & Kyle PC, Irving, TX, Donald Craig Wood, Walsh Gallegos Trevino Russo & Kyle PC, San Antonio, TX, for Defendant.
ORDER
ROBERT W. SCHROEDER III, UNITED STATES DISTRICT JUDGE
Plaintiff J.B. b/n/f Lauren and Eric B. filed this lawsuit asserting claims against Frisco Independent School District ("Frisco ISD") under the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act. Docket No. 34. Frisco ISD moved for judgment on the administrative record regarding J.B.’s IDEA claim. Docket No. 30. The Magistrate Judge recommends granting Frisco ISD's motion. Docket No. 68 ("Report and Recommendation"). J.B. filed objections to the Report and Recommendation, and also a Motion to Reconsider and Motion to Supplement the Record. Docket Nos. 70, 72, 77. Frisco ISD filed responses and surreplies. Docket Nos. 74, 81, 75, 82, 83, 91. And J.B. filed replies. Docket Nos. 78, 79, 84. The Court conducted a de novo review of the Magistrate Judge's findings and conclusions.
BACKGROUND
J.B. originally filed his Complaint in the Eastern District of Texas on November 8, 2019. Docket No. 1. On April 8, 2020, J.B. filed his Amended Complaint, the live pleading, asserting one claim under the IDEA and two claims under Section 504. Docket No. 34. J.B. is challenging the Special Education Hearing Officer's ("SEHO") determination that Frisco ISD provided him with a free appropriate public education ("FAPE") while he was enrolled as a student during the relevant time period. Frisco ISD's Motion for Judgment on the Administrative Record asks the Court to affirm the SEHO's decision, and thus seeks dismissal of J.B.’s one claim under the IDEA. Docket Nos. 30, 39. J.B. opposes the dismissal request, arguing the SEHO erred. Docket Nos. 37, 42. On November 24, 2020, the Magistrate Judge recommended the Motion for Judgment on the Administrative Record be granted and J.B.’s IDEA claim be dismissed, leaving J.B.’s two claims under Section 504. Docket No. 68. After entry of the report, J.B. timely filed objections and further moved the court to reconsider and allow supplementation of the record. Docket Nos. 70, 72, 77.
1 As a general rule, "a district court reviewing a magistrate judge's R & R has wide discretion to consider and reconsider the magistrate judge's recommendation." Saqui v. Pride Cent. Am., LLC, 595 F.3d 206, 211 (5th Cir. 2010). Accordingly, the Court now takes up both of J.B.’s pending motions while also considering the Report and Recommendation and J.B.’s corresponding objections. See Mars, Inc. v. TruRX LLC, No. 6:13-CV-526, 2015 WL 11232358, at *1 (E.D. Tex. Aug. 6, 2015) (considering, at the same time, both the defendant's objection and request to reconsider the magistrate judge's recommendation); Fuller v. Moya, No. 9:08CV202, 2008 WL 5204116, at *1 (E.D. Tex. Dec. 11, 2008) (same).
MOTION TO SUPPLEMENT AND MOTION TO RECONSIDER
2 J.B. filed a Motion to Reconsider and Motion to Supplement the Record on December 18 and December 23, 2020, respectively. Docket Nos. 72, 77. In the Motion to Reconsider, J.B. asks the Court to reconsider the Magistrate Judge's finding and recommendation based on "evidence not previously and timely produced" by Frisco ISD. Docket No. 72. And in the Motion to Supplement the Record, J.B. asks the Court to allow in the record additional documents that Frisco ISD produced after the Report and Recommendation was entered. Docket No. 77. The motions largely overlap and address the same arguments; thus, the Court considers them together.
34 Under IDEA, a court "shall hear additional evidence at the request of a party[.]" 20 U.S.C. § 1415(i)(2)(C)(ii). "The determination of what is additional evidence must be left to the discretion of the trial court." E.R. by E.R. v. Spring Branch, 909 F.3d 754, 764 (5th Cir. 2018) (per curiam) (quoting Town of Burlington v. Dep't of Educ. for Mass., 736 F.2d 773, 790 (1st Cir. 1984) ) (internal quotation marks omitted). In this context, "courts should avoid turning the administrative hearing into a mere dress rehearsal followed by an unrestricted trial de novo." E.R. by E.R., 909 F.3d at 764 (quoting Schaffer v. Weast, 554 F.3d 470, 476 (4th Cir. 2009) ) (internal quotation marks omitted). This is because the norm is for a court to simply render a decision based on the administrative record. E.R. by E.R., 909 F.3d at 764 (quoting West Platte R-II Sch. Dist. v. Wilson, 439 F.3d 782, 785 (8th Cir. 2006) ). J.B. provides no meritorious basis for the departure from the norm of rendering a decision based on the administrative record. See E.R. by E.R., 909 F.3d at 764.
J.B. asks the Court to supplement the administrative record based upon Frisco ISD's recent production of a document entitled "Overview of Special Education Department Structures, Supports, and Programing: 2016-2017 School Year." Docket No. 77 at 1–2. Because Frisco ISD purportedly failed to follow certain procedures outlined in this document that could have led to earlier behavioral support, J.B. argues he was denied a FAPE. Id. at 2, 5. J.B. also insinuates Frisco ISD deliberately withheld the document. Id. at 2–4. In response and in its surreply, Frisco ISD notes J.B. did not submit a discovery request prior to the due process hearing that encompassed this entire document and that, in any event, the document is not "relevant." Docket Nos. 83 at 2–3; 91 at 1–2. Frisco ISD also advances that there is no authority for the proposition that a school district's failure to follow internal guidelines constitutes a violation under the IDEA. Docket No. 83 at 5. In reply, J.B. argues that Frisco ISD's failure to disclose the document based on the non-use of the "magic words" is "discovery gamesmanship." Docket No. 84 at 2.
The dispute presented by the instant motions revolves around J.B.’s Request for Production 5, sent prior to the due-process hearing (the "SAIL Request"). Docket No. 77 at 2. This request states in full: "Any documents reflecting policies relating to and the location of Social and Interpersonal Learning [("SAIL")] classrooms within the Frisco Independent School District." Docket No. 77-2 at 6. J.B. contends the entire thirty-six-page document entitled "Overview of Special Education Department Structures, Supports, and Programming: 2016-2017 School Year" (Docket No. 77-1) should have been produced in response to the SAIL Request because the document discusses "Process for Requesting a Change of Placement: SBS or SAIL." Docket Nos. 77 at 1–2; 77-1 at 35–37.
The Court is unpersuaded that Frisco ISD deliberately or improperly withheld the document. In response to Request for Production 5 and after asserting objections and in advance of the due process hearing, Frisco ISD produced those pages discussing SAIL, specifically the section entitled "Process for Requesting a Change of Placement: SBS or SAIL"; the top of each produced page is labeled "From Special Education Department Overview"; and the bottom of each produced page is bates-stamped FISD DPH (Frisco ISD Due Process Hearing). Docket No. 76-18 at 10–13, AR 1188–91. The pages produced are responsive to the request. J.B. points to no additional request at the due process hearing level after receiving this document. And J.B. himself admitted and utilized the produced document in the underlying due process hearing before the SEHO. AR 1188, 2286–2287. Nonetheless, J.B. now says he should have received the entire "Special Education Department Overview" document, including certain portions discussing behavior procedures: "Behavior Support and Referral Process." Docket No. 77 at 2–3.
56 Even if the Court agreed that J.B.’s due process hearing discovery request encompassed the entire "Special Education Department Overview" document, the Court's ultimate analysis would not change. J.B. failed to carry his burden to establish the SEHO erred. See Seth B. ex rel. Donald B. v. Orleans Parish Sch. Bd., 810 F.3d 961, 972 (5th Cir. 2016). The IDEA guarantees a "basic floor" of opportunity. Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 396 (5th Cir. 2012). Without authority, J.B. implies a school district's own policies and procedures outlined in the document impose a legal obligation above and beyond the statutory "basic floor." Such a reading would be inconsistent with the IDEA's structure and existing case law. A school district satisfies its IDEA obligations if it complies with the Act's procedural requirements and the Individualized Education Program ("IEP") is reasonably calculated to enable the child to receive educational benefits. That was properly the focus of the Magistrate Judge's analysis. Moreover, procedures related to the SAIL program, which is what J.B. sought in Request for Production 5 at the underlying due process level, are immaterial to whether J.B. should have been provided a Functional Behavior Assessment or Behavior Intervention Plan within a certain time period. And the remaining pages of the Special Education Department Overview that J.B. seeks to admit reference a Functional Behavior Assessment or Behavior Intervention Plan only when describing (1) the role of a behavior specialist and licensed specialist in school psychology; and (2) what type of evidence may be considered and reviewed by school personnel. Docket Nos. 77-1 at 7–8, 11, 35–36. The document does not substantively address Functional Behavior Assessments or Behavior Intervention Plans (the crux of Plaintiff's objections to the Magistrate Judge's findings); it does not answer the question of whether J.B.’s IEP was individualized. For the foregoing reasons, the Court declines to exercise its discretion to allow additional evidence at this stage. See E.R. by E.R., 909 F.3d at 764.
REPORT AND RECOMMENDATION
On November 24, 2020, the Magistrate Judge entered a Report and Recommendation recommending Frisco ISD's Motion for Judgment on the Administrative Record be granted. Docket No. 68. Therein, the Magistrate Judge details how J.B. failed to meet his burden of establishing the SEHO erred. Id. at 15–32.
OBJECTIONS
J.B. cabins his objections to the Magistrate Judge's conclusion regarding the first and fourth "Michael F." factors. See Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997). J.B. objects to the Magistrate Judge's conclusion regarding the first Michael F. factor that "J.B.’s IEP was individualized, adequately identified his behavioral impediments, and implemented numerous strategies to address his behavior." Docket Nos. 68 at 22–23; 70 at 2. J.B. next objects to the Magistrate Judge's conclusion regarding the fourth Michael F. factor that "J.B. demonstrated positive non-academic benefits," exhibited "improved behavior," and had behavior that "was generally not concerning" leading up to November 2018. Docket Nos. 68 at 28; 70 at 5. Similarly, J.B. takes issue with the Magistrate Judge's conclusion when analyzing the fourth Michael F. factor that Frisco ISD "had a cohesive plan to meet J.B.’s behavioral needs." Docket Nos. 68 at 29; 70 at 7–8. J.B. does not object to the Magistrate Judge's analysis of the second and third Michael F. factors. Docket No. 68 at 24–27.
Frisco ISD urges the Court to overrule the objections and adopt the Report and Recommendation. Regarding the first Michael F. factor, Frisco ISD points to J.B.’s stipulation as to behavioral support in his IEPs and argues there is no requirement to complete a Functional Behavior Assessment or implement a Behavior Intervention Plan. Docket No. 74 at 2–3. And regarding the fourth Michael F. factor, Frisco ISD points to J.B.’s improved behavior in second grade and its response when J.B.’s behavior worsened in third grade, arguing "the IDEA does not require perfection." Id. 4–7.
In his reply and addressing the first Michael F. factor, J.B. notes that he did not stipulate as to whether the IEP was individualized, and that Frisco ISD did not timely conduct a Functional Behavior Assessment or implement a Behavior Intervention Plan. Docket No. 79 at 2. As to the fourth Michael F. factor, J.B. argues the amendments to J.B.’s IEPs demonstrate Frisco ISD had the tools to provide J.B. a FAPE but failed to timely use them. Id. at 2–3. Frisco ISD rejoins that, under the first Michael F. factor, J.B.’s IEP addressed his behavior with services and accommodations and that his behavior did not warrant a Functional Behavior Assessment or Behavior Intervention Plan until October 2018. Docket No. 81 at 1–2. And regarding the fourth Michael F. factor, Frisco ISD further retorts that J.B. is trying to improperly impart a "remediation" requirement under the IDEA and that J.B. ignores his non-academic progress. Id. at 2–3.
DE NOVO REVIEW
78 The only claim addressed in the Motion for Judgment on the Administrative Record, Report and Recommendation and instant briefing is J.B.’s claim under the IDEA. J.B.’s objections regarding the first Michael F. factor are unavailing. The first factor is whether the IEP was "individualized on the basis of the student's assessment and performance." Klein, 690 F.3d at 396 (quoting Michael F., 118 F.3d at 253 ). The Magistrate Judge detailed Frisco ISD's consideration of J.B.’s needs when formulating his IEP, including assessments, outside evaluations, input from employees and his parents, goals and objectives related to behavior and behavioral support in the general education environment. Docket No. 68 at 19. The Magistrate Judge also rejected J.B.’s argument that he was denied a FAPE because Frisco ISD did not perform a Functional Behavior Assessment early enough to address his needs. Id. at 19–24.
J.B. objects because the temporary, initial IEP did not identify behavioral problems, the next IEP did not include behavioral strategies and any future behavioral accommodations were generic. Docket No. 70 at 2–4. In J.B.’s view, this supports his argument that Frisco ISD should have completed a Functional Behavior Assessment earlier. Id. at 3. Frisco ISD completed a Functional Behavior Assessment in mid-October 2018—approximately two months after J.B. started third grade. AR 532–41, 1003. And, as the Magistrate Judge noted, there is no general requirement to complete a Functional Behavior Assessment. See also M.W. ex rel. S.W. v. New York City Dep't of Educ., 725 F.3d 131, 140 (2d Cir. 2013) ; Park Hill Sch. Dist. v. Dass, 655 F.3d 762, 767 (8th Cir. 2011) (rejecting the argument that failure to complete a behavior intervention plan denied a child a FAPE, as the school district used strategies to address the child's behavior). Rather, when a child's "behavior impedes the child's learning or that of others," the school district must use "positive behavioral interventions and supports, and other strategies, to address that behavior[.]" 20 U.S.C. § 1414(d)(3)(B)(i) ; 34 C.F.R. § 300.324(a)(2)(i). J.B. points to no authority indicating failure to provide a Functional Behavior Assessment within a certain time period warrants concluding J.B. was denied a FAPE. To the contrary, courts have routinely found that failure to conduct a Functional Behavior Assessment does not necessarily result in the denial of a FAPE. See Rosaria M. v. Madison City Bd. of Educ., 325 F.R.D. 429, 439-40 (N.D. Ala. 2018) ; see also R.E. v. New York City Dep't of Educ., 694 F.3d 167, 190 (2d Cir. 2012).
Further, J.B.’s initial IEP contained behavioral support. AR 1002. In connection with the April 2018 IEP, J.B.’s parents and the rest of the Admission, Review, and Dismissal committee agreed J.B.’s behavior was improving, Frisco ISD should continue to collect behavioral data and J.B.’s new IEP should include new goals and support. AR 410–14, 429–31, 1002, 2470–71. As to J.B.’s argument that the behavioral accommodations were generic and thus warranted a Functional Behavior Assessment, Frisco ISD took extensive action to address J.B.’s behavior, including collecting data, intervention, support, goals, strategies and frequent meetings with parents and Frisco ISD staff. AR 348, 351–53, 362, 412–14, 417–19, 429–30, 444–46, 449–51, 546–48, 554–56, 560–65, 572, 624–26, 632–34, 1002–05, 2453–54, 2470–71. J.B.’s objection is thus overruled.
9101112 J.B.’s next objects to the Magistrate Judge's conclusion regarding the fourth Michael F. factor. As evidence that his behavior "devolved," J.B. points to eighteen behavior-related incidents: two incidents where he was restrained, four "room clears" and the two times he was removed from the classroom. Docket No. 70 at 5–6. J.B. further takes issue with the Magistrate Judge's conclusion that Frisco ISD "had a cohesive plan to meet J.B.’s behavioral needs" because, in J.B.’s view, the IDEA is concerned with whether the plan "works" rather than whether the plan is "cohesive." Id. at 7. J.B.’s characterization of the IDEA, however, is incorrect. The fourth Michael F. factor is whether "positive academic and non-academic benefits are demonstrated." Klein, 690 F.3d at 396 (quoting Michael F., 118 F.3d at 253 ). The IDEA does not require perfection; rather, "the whole educational experience, and its adaptation to confer ‘benefits’ on the child, is the ultimate statutory goal." Klein, 690 F.3d at 397. To be sure, "remediation may often by part of an IEP." Id. But "overall educational benefit, not solely disability remediation, is IDEA's statutory goal." Id. at 398.
13 Here, it is undisputed that J.B. obtained positive academic benefits. Docket No. 68 at 28. Thus, the parties only reasonably contest whether J.B. obtained positive non-academic benefits. Although J.B. points to certain incidents involving his behavior, these incidents do not tell the whole story. The administrative record reflects J.B. often met behavior expectations and demonstrated progress on his IEP goals. AR 429–30, 701–74, 1254–55, 1307, 1395, 1441, 2470–72. Indeed, J.B.’s parents and the rest of the Admission, Review, and Dismissal committee agreed in April 2018 that J.B.’s behavior improved. Id. at 410–14, 429–31, 1002, 2470–71. It was not until August 2018 that J.B.’s parents expressed dissatisfaction with J.B.’s progress, and Frisco ISD agreed to conduct a Functional Behavior Assessment thereafter. Id. at 464–65, 1002. Again, IDEA provides a floor, and remediation is not the ultimate statutory goal. Klein, 690 F.3d at 396–98. Here, J.B. undeniably obtained academic progress. J.B. also obtained non-academic progress, albeit not perfection. The Court's role "is not to second-guess the decisions of school officials or to substitute [its] plans for the education of disabled students with the court's." Shafi v. Lewisville Indep. Sch. Dist., No. 4:15-CV-599, 2016 WL 7242768, at *10 (E.D. Tex. Dec. 15, 2016) (quoting R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1010 (5th Cir. 2010) ). J.B.’s objection is overruled.
In reaching this decision, the Court is mindful of the Supreme Court's recent instruction that examination of an IEP is not "an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, ––– U.S. ––––, 137 S. Ct. 988, 1001, 197 L.Ed.2d 335 (2017) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ). The Court is similarly mindful that it is J.B.’s burden to demonstrate the SEHO erred when it concluded J.B. was not denied a FAPE. Seth B., 810 F.3d at 972. Yet J.B. does not challenge two of the four Michael F. factors, and his discussion of the remaining factors does not move him over the proverbial finish line.
Having conducted a de novo review, the Court is of the opinion that Frisco ISD's Motion for Judgment on the Administrative Record is meritorious. The Court is also of the opinion that the findings and conclusions of the Magistrate Judge are correct. Accordingly, the Court ADOPTS the Report and Recommendation of the United States Magistrate Judge as the findings and conclusions of this Court. The Court further finds J.B.’s objections are without merit and OVERRULES each one. It is therefore
ORDERED that J.B.’s Motion for Reconsideration (Docket No. 72) and Motion to Supplement the Record (Docket No. 77) are both DENIED. It is further
ORDERED that Frisco ISD's Motion for Judgment on the Administrative Record (Docket No. 30) is GRANTED. The decision of the SEHO is AFFIRMED, and J.B.’s claim under the IDEA is DISMISSED WITH PREJUDICE.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Christine A. Nowak, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Frisco Independent School District's ("Defendant" or "Frisco ISD") Motion for Judgment on the Administrative Record ("Motion") [Dkt. 30] wherein Defendant seeks dismissal of Plaintiff J.B. b/n/f Lauren and Eric B.’s ("Plaintiff") claim under the Individuals with Disabilities Education Act ("IDEA"). After reviewing the Motion, Plaintiff's Response [Dkt. 37], Defendant's Reply [Dkt. 39], Plaintiff's Sur-reply [Dkt. 42], the administrative record, and all other relevant filings, the Court recommends Defendant's Motion [Dkt. 30] be granted. Plaintiff's claim under the IDEA should be dismissed, as set forth herein.
BACKGROUND
Summary of Issue Presented
Plaintiff's Amended Complaint, filed after the instant Motion, asserts one claim under IDEA and two claims under Section 504 arising out of J.B.’s education while enrolled in Frisco ISD [Dkt. 34]. The pending Motion solely seeks dismissal of the claim under the IDEA. Defendant contends the singular issue before the Court "is whether the [Special Education Hearing Officer ("SEHO")] correctly determined Frisco ISD provided J.B. with a free appropriate public education ("FAPE") during the relevant time period" [Dkt. 30 at 5]. Plaintiff agrees with the framing of the issue but argues to the contrary that the SEHO "incorrectly determined" Defendant provided J.B. with a FAPE during the relevant time period [Dkt. 37 at 4, 6].
An amended complaint usually moots any previously filed dispositive motion. See Griffin v. Am. Zurich Ins. Co. , 697 F. App'x 793, 797 (5th Cir. 2017). The instant case is an exception. Plaintiff's Original Complaint asserted two causes of action: one under the IDEA and the other under Section 504 [Dkt. 1 at 11-15]. Plaintiff's Amended Complaint, filed on April 8, 2020, after the instant Motion, asserts three causes of action: one under the IDEA and two under Section 504 [Dkt. 34 at 14-20]. On April 14, 2020, the Court ordered Defendant to file a notice as to the impact, if any, of the Amended Complaint on the instant Motion [Dkt. 35]. Defendant avers that "the nature of an administrative appeal of a [SEHO] decision lends itself to consideration of a pending [Motion for Judgment on the Administrative Record] regardless of the subsequent filing of an amended complaint" because the Court solely looks to the administrative record when resolving a motion for judgment on the administrative record, "which contains all of the evidence submitted in the due process hearing and relevant to Plaintiff's appeal of the SEHO's decision" [Dkt. 36 at 1-2]. Defendant further avers the question before the Court remains the same notwithstanding the filing of an amended complaint—"whether the SEHO correctly determined [Defendant] provided J.B. with a free appropriate public education" [Dkt. 36 at 2]. Plaintiff agrees that the filing of the Amended Complaint "does not impact the Court's consideration of the Motion for Judgment on the Administrate Record" [Dkt. 37 at 4 n.2]. The Court also agrees. Moreover, as indicated herein, the Original Complaint and Amended Complaint are substantially similar. Compare [Dkt. 1], with [Dkt. 34].
The "relevant time period" hereinafter refers to February 13, 2018 (while J.B. was in second grade) to January 2019 (while J.B. was in third grade) [Dkts. 30 at 9 n.24; 37 at 6]; [AR 23].
Therefore, Plaintiff's two claims under Section 504 of the Rehabilitation Act asserted in the Amended Complaint [Dkt. 34] are not implicated in the undersigned's recommendation. The Court will solely consider herein the Parties’ arguments as to whether the SEHO erred when it determined Defendant provided J.B. with a FAPE during the relevant time period. And as further detailed herein, the Court need not reach the issue of whether J.B.’s private school placement was "appropriate" and subject to reimbursement.
The Child's Education and Accommodations
J.B. was enrolled as a kindergarten student during the 2015-2016 school year at an elementary school in Frisco ISD where he remained until the end of the Fall 2018 semester when J.B. withdrew to attend private school [AR 6, 1001]. On March 9, 2018, Defendant, through an Admission, Review, and Dismissal ("ARD") committee meeting, determined J.B. was eligible for special education and related services as a student with Autism [AR 344-46]. J.B. also received services from Defendant through the Gifted and Talented program while he was enrolled [AR 273].
In August 2017, when J.B. started his second-grade year, a Student Support Team and J.B.’s mother reviewed J.B.’s progress by examining J.B.’s diagnosis and medications, which ultimately resulted in new behavioral accommodations and an agreement for Defendant to monitor J.B.’s behavior [AR 273]. Three months later, in November 2017, Defendant's staff recommended an evaluation for eligibility for special education and related services; J.B.’s parents declined to provide consent for Defendant to conduct a Full and Individual Evaluation ("FIE") and instead elected to obtain a private evaluation [AR 1001]. In late November 2017, Defendant's Section 504 committee conducted a meeting alongside J.B.’s parents and Defendant's Licensed Specialist in School Psychology, Dr. LaQuanta Stewart, which noted J.B. "is above grade level in math and reading" but "sometimes has difficulty with staying on task" [AR 277-79]. The Section 504 meeting resulted in a review of and update to J.B.’s accommodations [AR 278-81]. Approximately one month later, in early January 2018, the Section 504 committee met again to further update J.B.’s accommodations [AR 287-91].
Two days after this second Section 504 committee meeting, on January 11, 2018, J.B.’s parents obtained the first private evaluation of J.B., by licensed clinical psychologist Dr. Morgan Grahovec, who diagnosed J.B. with Asperger's Syndrome, ADHD, Major Depressive Disorder, Single Episode, in Partial Remission, and Dysgraphia and recommended special education services [AR 294, 301, 305, 1001]. Dr. Grahovec specifically stated J.B. "would benefit from a behavior modification plan at school based upon Applied Behavior Analysis" [AR 306]. As a result, in February 2018, J.B.’s parents requested Defendant provide special education services [AR 362, 1001].
J.B. subsequently received a second and third private evaluation, each of which were Independent Educational Evaluations ("IEEs"), at Defendant's expense on August 15, 2018, and September 7, 2018 [AR 1002-03]. These private evaluations involved speech and occupational therapy, respectively.
On February 21, 2018, J.B.’s parents consented to Defendant's provision of a FIE, and Defendant expedited this evaluation [AR 317, 1001]. It is undisputed that Defendant did not request consent for a Functional Behavioral Assessment ("FBA") at the time it obtained consent to conduct the FIE. On February 26, 2018, J.B.’s second-grade teacher, Brandy Bedell, completed a "Teacher Information for Students Experiencing Learning / Behavioral Challenges" that documented J.B.’s daily behavior problems [AR 328-43].
On March 9, 2018, Defendant convened the first and/or initial ARD committee meeting, which included J.B.’s father but not mother [AR 344, 362-63, 1001-02]. The ARD committee created an initial Individualized Education Program ("IEP"), which included behavior support, de-escalation, social skills, and direct instruction [AR 1002]. The initial IEP did not include an FBA or a Behavior Intervention Plan ("BIP") based on the ARD committee's evaluation of the frequency, intensity, and duration of J.B.’s behavior [AR 1002, 2450-51]. The ARD committee did note J.B. "exhibits significant behavioral challenges" that were affecting his "educational performance or the learning of others" [AR 348]. The ARD committee agreed to collect Antecedent, Behavior, Consequence data ("ABC data") regarding J.B.’s behavior starting "the Monday after spring break" and that "a decision will be made regarding an FBA" [AR 352, 362]. The Parties both stipulate that this "March 9, 2018, ARD committee meeting ended in consensus" [AR 1002].
Frisco ISD defines a BIP as:
A BIP should identify problematic behaviors, replacement behaviors, the positive interventions, strategies and supports to address the behaviors. The BIP should also outline the function of the behavior and consequences of the behavior(s). The plan should illustrate the expected response of teachers and school when a behavior occurs. A BIP intends to provide a plan for preventing and responding to behaviors that affect a student's access to education.
https://www.friscoisd.org/docs/default-source/in-home-parent-training/special-education-acronyms.pdf (last visited Sept. 18, 2020).
In March and April 2018, J.B.’s special education teacher, Heather Williams, reported J.B. demonstrated improvement, including "in the areas of behavior, emotional regulation, and social skills" [AR 1307-08, 1395]. In March 2018, J.B.’s second-grade classroom teacher, Brandy Bedell, also reported J.B. demonstrated improved behavior [AR 1309-11].
On April 11, 2018, Defendant completed J.B.’s FIE [AR 1002], which resulted in a recommendation for special-education eligibility for Autism and an Other Health Impairment ("OHI") based on ADHD and noted J.B.’s behavior was impeding his learning [AR 390-93]. The ARD committee then convened for a second meeting on April 27, 2018 [AR 1002], which included both J.B.’s father and mother [AR 431]. There, the ARD committee added OHI as an eligibility category, new goals, and additional support [AR 410-14, 429-30, 1002]. The ARD committee further noted J.B.’s behavioral improvement [AR 429-30, 2470], and J.B.’s parents agreed [AR 429-30]. The ARD committee also agreed to continue collecting behavioral data [AR 429-30, 2470-71]. The Parties both stipulate this "April 27, 2018, ARD committee meeting ended in consensus" [AR 1002]. Approximately one month later, at the end of J.B.’s second-grade year, J.B. earned "A"s on his report card, performed "at the expected level" for both reading and mathematics, and demonstrated new coping skills [AR 684-85, 1255-58, 1441].
On August 10, 2018, prior to the start of J.B.’s third-grade year, the ARD committee met for the third time [AR 1002], which included both J.B.’s father and mother [AR 464-65]. The ARD committee requested a speech evaluation, and J.B.’s parents expressed dissatisfaction with J.B.’s progress [AR 1002]. The ARD committee agreed to conduct an FBA and expedite the assessment [AR 1002]. Defendant also granted J.B.’s parents’ request for an IEE at Defendant's expense [AR 1002]. The Parties, consistent with the first two ARD committee meetings, stipulate this "August 18, 2018, ARD committee ended in consensus" [AR 1002].
At the start of the third-grade school year, J.B. was enrolled in Allyson Magera's third-grade class [AR 1329-31]. J.B.’s special-education teacher, Mary Lamson, reported J.B. was "doing really well" [AR 1404]. J.B.’s behavior, however, appeared to worsen after J.B.’s medication changed [AR 1703]. Thus, on September 19, 2018, J.B.’s IEP was amended to include additional weekly support [AR 1003]. Two weeks later, on October 3, 2018, J.B.’s IEP was again amended, this time to include even more weekly support [AR 1003]. And on October 9, 2018, J.B.’s IEP was further amended [AR 1003].
On October 15, 2018, Defendant completed J.B.’s speech evaluation [AR 982-1000] and FBA [AR 532-41, 1003]. The FBA included multiple observations by Dr. Stewart, which noted J.B. was using the skills and strategies he was taught [AR 2457, 2479-81]. There were only six instances of refusal or disrespectful behavior [AR 539, 2488-89] and four instances of physical behavior [AR 540, 2490-91] between August 22, 2018, and October 2, 2018. After J.B. again changed his medication [AR 1699, 2478-79], Dr. Stewart recommended a BIP [AR 541, 2495] even though J.B. demonstrated progress in meeting some annual goals and objectives [AR 690-691]. Thereafter, in November 2018, J.B. had an incident where he punched the Assistant Principal in the stomach [AR 977]. That same month, J.B.’s medication was again changed [AR 1699].
On November 7, 2018, the ARD committee met for the fourth time [AR 573-74, 1003], which included J.B.’s mother [AR 574-75]. Before recessing, the ARD committee added an OT consultation to J.B.’s IEP [AR 573-74, 1003]. On November 13, 2018, the ARD committee reconvened and added speech goals and speech therapy to J.B.’s IEP [AR 573, 1003] before again recessing. On November 26, 2018, the ARD committee reconvened and developed an exit plan in response to a behavioral episode in the classroom, reviewed J.B.’s BIP, and modified goals [AR 573]. A Behavior Specialist, Candace Barefoot, then observed J.B. on multiple occasions in late November and early December 2018 [AR 1519-39, 2542-50]. J.B.’s behavior escalated [AR 979-81, 1003, 1361] in late November 2018 around the same time he once more changed medication [AR 1361, 1374, 1691, 1704].
It is unclear if both of J.B.’s parents attended the November 13 and November 26, 2018 reconvened ARD committee meetings because there is only one signature page that includes J.B.’s mother's signature [AR 573-75]. However, the notes from both meetings indicate at least J.B.’s mother attended [AR 573].
After Ms. Magera removed J.B. from her classroom on December 5, 2018 [AR 1003-04, 1489], the ARD committee reconvened on December 6, 2018, with J.B.’s mother and attorney in attendance [AR 572, 581-82]. Here, the ARD committee reviewed the proposed BIP and behavior goals [AR 572], and Defendant agreed to provide additional staff training, support, and accommodations for J.B.’s behavioral and emotional needs [AR 572, 1004]. The ARD committee discussed the "components of the BIP that are going to be implement to help present escalation of behaviors" [AR 572]. The Parties stipulate that, on December 6, 2018, this "ARD committee meeting ended in consensus" [AR 1004].
The requested training was completed by December 11, 2018 [AR 1004]. But one week later, on December 18, 2018, J.B. hit another student [AR 1513, 1515, 1665-66], and Ms. Magera removed J.B. from her classroom [AR 1516]. A few days later, J.B.’s parents provided Defendant with written notice of intent to place J.B. in private school at Defendant's expense, and J.B. did not return to Defendant's district in January 2019 [AR 590, 1004]. At the conclusion of the Fall 2018 semester, J.B. again received "A"s on his report cards [AR 687-89]. The ARD committee held a meeting on January 18, 2019, and recommended alternative placement for J.B., including in a centralized SAIL classroom, a more restrictive environment [AR 650-51, 1005]. The Parties stipulate this "January 18, 2019, ARD committee meeting did not end in consensus" [AR 1005]—a departure from the prior ARD committee meetings. The ARD committee then reconvened on January 25, 2019, a meeting the Parties stipulate also did not end in consensus but that included Defendant's continued recommendation of a SAIL classroom and J.B.’s mother's continued request to place J.B. in a private school at Defendant's expense [AR 651-52, 1005, 2536-37]. J.B. began attending a private school in January 2019.
The record reflects that since early 2019 J.B. has had no further medication changes [AR 1704].
The Due Process Hearing and the SEHO's Decision
Plaintiff filed a Request for Special Education Due Process Hearing on February 13, 2019 [AR 1005]. On May 28 and 29, 2019, the SEHO held the due process hearing [AR 4]. Both Plaintiff and Defendant were represented by counsel [AR 4]. The SEHO then issued a decision August 23, 2019 [AR 33]. In the SEHO's decision, the SEHO characterizes the issues presented:
The parents of a child can request an "impartial due process hearing" before a SEHO after "a complaint has been received under subsection (b)(6) or (k)." 20 U.S.C. § 1415(f)(1).
Whether the School District failed to provide Student with FAPE during the 2017-2018 school year through January 2019 proposed IEP, specifically with regard to the following:
a. IEP: Whether the School District failed to provide the supports and accommodations provided in Student's IEP.
b. IEP: Whether the School District failed to timely include a BIP in Student's IEP.
[AR 5]. The SEHO further detailed Plaintiff's request for "reimbursement for private placement and transportation costs" if Defendant "cannot offer appropriate services," and request for Defendant to "fund private placement prospectively until Student transitions to middle school" [AR 6]. The SEHO then details its extensive Findings of Fact [AR 6-22]. This includes the initial ARD committee meeting on March 9, 2018, and subsequent initial IEP [AR 9-10]; second ARD committee meeting on April 27, 2018, and second IEP [AR 11]; third ARD committee meeting on August 10, 2018 [AR 11]; third IEP on October 3, 2018 [AR 13]; FBA on October 15, 2018 [AR 13]; fourth, fifth, sixth, and seventh ARD committee meetings on November 7, November 13, November 26, December 6, 2018, respectively [AR 14]; fourth IEP with a BIP included on December 6, 2018 [AR 14-15]; J.B.’s parents’ December 21, 2018 notification of intent to enroll in private school and seek reimbursement [AR 18]; eighth ARD committee meeting on January 18, 2019 [AR 18]; and ninth ARD committee meeting on January 25, 2019, and subsequent additions to J.B.’s IEP [AR 18].
It is unclear whether the meetings on these dates are properly characterized as individual ARD committee meetings or as one single ARD committee meeting that recessed and reconvened multiple times.
The SEHO then conducted an analysis of the Michael F. factors [AR 25-31], discussed more fully infra , to determine whether Defendant complied with its requirements under the IDEA. First, the SEHO concluded Defendant "implemented an IEP for Student during the relevant time period that was individualized on the basis of assessment and performance" [AR 26]. Specifically, as to a BIP, the SEHO detailed:
Student's initial IEP did not include a BIP; however, it included several accommodations aimed at helping Student with his behaviors, with de-escalation, and with understanding his frustrations. In the Spring of 2018, Student's teachers were collecting data to determine if a BIP was needed .... In August 2018 Parents informed the School District
their belief Student was not making progress. In response to the concern, the School District agreed to conduct an FBA for the purpose of developing a BIP if necessary. Teachers collected ABC data and the FBA was completed on October 15, 2018 before the 45-day deadline for completing an evaluation. The School District incorporated the BIP in Student's IEP during the November 7 – December 6, 2018 ARD meetings. Almost all of the preventions listed in the BIP were already in Student's accommodations. The only completely new prevention was to create and implement a preventative plan to remove Student to a safe place prior to escalation. While this was not listed in his original accommodations Student's 3rd grade teacher attempted to do this as explained by her testimony that she tried to stay ahead of his frustrations. If she knew a particular assignment may cause Student stress, she would stay near his desk and check in on him. Student had "safe" places throughout the school in his general education classroom, in the resource classroom, and in the principal's office.
[AR 26-27]. Second, the SEHO concluded J.B. "was educated in the least restrictive environment" because he was "in all general education classes with non-disabled peers during his second-grade year and the fall of his third-grade year" [AR 28-29]. Third, the SEHO concluded J.B.’s "services were provided in a coordinated, collaborative manner by key stakeholders" [AR 30]. More specifically, the SEHO detailed:
Several ARD meetings occurred over Student's time in the School District. At least one parent, if not both, were present at all ARD meetings as well as a general education teacher, a special education teacher, and an administrator. Parents were in regular contact with the School District. Parents emailed teachers and staff as well as had biweekly meetings with teachers and staff. Teachers and staff discussed amongst themselves how to handle Student and brainstormed strategies to address his needs. When the parents had any concerns about Student's grades or behaviors, ARDs were held or emails were exchanged with teachers and administration.
[AR 30-31]. Finally, the SEHO concluded J.B. "received both academic and non-academic benefits from the educational program at issue" [AR 31]. In support, the SEHO pointed to J.B.’s grades, including that he "was at or above grade level in all of his classes" and "was in the GT program" [AR 31]. The SEHO further noted J.B.’s "behavior progress began to decline in November and December 2018" and that Defendant attempted to address this decline in a proposed IEP in January 2019 but was unable to implement it because J.B. was withdrawn from the school district [AR 31]. In sum, the SEHO reached two conclusions. First, J.B. "was provided FAPE during the relevant time period and his IEP was reasonably calculated to address his needs in light of his unique circumstances" [AR 32]. And finally, Plaintiff's "claims arising under any laws other than IDEA are outside the jurisdiction of a [SEHO] in Texas" [AR 32].
The Instant Suit
Plaintiff filed the instant suit in the Eastern District of Texas on November 8, 2019 [Dkt. 1]. On March 20, 2020, Defendant filed the pending Motion for Judgment on the Administrative Record asking the Court to affirm the SEHO's decision [Dkt. 30]. Plaintiff filed a Response on April 17, 2020 [Dkt. 37], Defendant filed a Reply on May 1, 2020 [Dkt. 39], and Plaintiff filed a Sur-reply on May 15, 2020 [Dkt. 42]. The instant Motion is fully briefed and ripe for consideration.
"[T]he plain language of the IDEA provides that any party aggrieved by the findings and decision of a due process hearing brought pursuant to IDEA ‘shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.’ " E.M. v. Lewisville Indep. Sch. Dist. , No. 4:15-CV-00564, 2018 WL 1510668, at *8 (E.D. Tex. Mar. 27, 2018) (quoting 20 U.S.C. § 1415(i)(2)(A) ); see also 20 U.S.C. § 1415(i)(1)(A) ; 34 C.F.R. § 300.516.
EVIDENCE PRESENTED
The Administrative Record, totaling over two-thousand six-hundred pages, includes:
(1) The SEHO's decision [AR 1-35];
(2) Pleadings, Orders, and Disclosure Correspondence [AR 36-269];
(3) Joint Exhibits [AR 270-1006];
(4) Petitioner's Exhibits [AR 1007-1194];
(5) Respondent's Exhibits [AR 1195-1732];
(6) Transcript of Prehearing Telephone Conference (Mar. 12, 2019) [AR 1733-53];
(7) Transcript of Prehearing Telephone Conference (May 24, 2019) [AR 1754-73];
(8) Transcript of Day 1 of 2 of the Due Process Hearing (May 28, 2019) [AR 1774-2228]; and
(9) Transcript of Day 2 of 2 of the Due Process Hearing (May 29, 2019) [AR 2229-640].
ANALYSIS
IDEA Framework
The IDEA seeks "to ensure that all children with disabilities have available to them a free appropriate public education." Seth B. ex rel. Donald B. v. Orleans Parish Sch. Bd. , 810 F.3d 961, 965 (5th Cir. 2016) (quoting 20 U.S.C. § 1400(d)(1)(A) ). More specifically, "the IDEA compels those states receiving federal funding to educate children with disabilities ‘to the maximum extent appropriate ... with children who are not disabled,’ and to do so ‘in the least restrictive environment consistent with their needs.’ " El Paso Indep. Sch. Dist. v. Richard R. , 567 F. Supp. 2d 918, 922 (W.D. Tex. 2008) (quoting 20 U.S.C. § 1412(a)(5) ; Teague Indep. Sch. Dist. v. Todd L. , 999 F.2d 127, 128 (5th Cir. 1993) ). In exchange for such funds, states pledge to ensure a FAPE is available to all children with disabilities residing in the state between the ages of 3 and 21. 20 U.S.C. § 1412(a)(1)(A). "Because the State of Texas receives federal education funding, all school districts within its borders must comply with the IDEA." Richard R. , 567 F. Supp. 2d at 922 (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. , 118 F.3d 245, 247 (5th Cir. 1997) ).
The IDEA "guarantees only a ‘basic floor’ of opportunity, ‘specifically designed to meet the child's unique needs, supported by services that will permit him to benefit from the instruction.’ " Klein Indep. Sch. Dist. v. Hovem , 690 F.3d 390, 396 (5th Cir. 2012) (citing Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley , 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ). "The IDEA concerns itself not with labels, but with whether a student is receiving a free and appropriate education." Lauren C. by and through Tracey K. v. Lewisville Indep. Sch. Dist. , 904 F.3d 363, 377 (5th Cir. 2018) (citing Heather S. v. State of Wisconsin , 125 F.3d 1045, 1055 (7th Cir. 1997) ). "One of the components of a FAPE is ‘special education,’ defined as ‘specially designed instruction ... to meet the unique needs of a child with a disability.’ " Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1 , ––– U.S. ––––, 137 S. Ct. 988, 1000, 197 L.Ed.2d 335 (2017) (quoting 20 U.S.C. § 1401(9), (29) ); see also 20 U.S.C. § 1401(9) (defining FAPE). "Once a school accepts that one of its students is eligible under the IDEA, the school must develop an [IEP] for that student." Dall. Indep. Sch. Dist. v. Woody , 865 F.3d 303, 309 (5th Cir. 2017) (citing Michael F. , 118 F.3d at 247 ). An IEP is the vehicle in which the required FAPE "is tailored to the unique needs of a particular child." Endrew F. , 137 S. Ct. at 1000 (quoting Rowley , 458 U.S. at 181, 102 S.Ct. 3034 ) (internal quotation marks omitted). More specifically, the IEP is a written statement that is prepared at a meeting of qualified representatives of the local educational agency, the child's teacher, parent or parents, and where appropriate, the child. 20 U.S.C. § 1414(d)(1)(A)-(B). Indeed, creating an IEP involves "the student's parents, teachers, and counselors working together to determine what is best for the child." A.L. v. Alamo Heights Indep. Sch. Dist. , No. SA-16-CV-00307-RCL, 2018 WL 4955220, at *1 (W.D. Tex. Oct. 12, 2018) (citing 20 U.S.C. § 1414(d) ). "The IEP includes a statement of the special education, related services and accommodations the school will provide to the child." Klein , 690 F.3d at 395 (citing 20 U.S.C. § 1414(d)(1)(A) ). "An IEP need not be the best possible one, nor does it entitle a disabled child to a program that maximizes the child's potential." Klein , 690 F.3d at 396 (citing Michael F. , 118 F.3d at 247-48 ). "Nevertheless, a school district must provide the student with a meaningful educational benefit." Klein , 690 F.3d at 396 (citing Hous. Indep. Sch. Dist. v. V.P. ex rel. Juan P. , 582 F.3d 576, 583 (5th Cir. 2009) ). And after "school officials and parents agree on the IEP, the school district must put it into effect." Klein , 690 F.3d at 395 (citing 20 U.S.C. § 1414(d)(2)(A) ).
Relevant herein, "[p]arents who remove their child from a public school setting because they believe that the public education programs fails to provide a FAPE and who place their child in a private school for that reason are entitled to reimbursement if the court holds that [1] the proposed IEP did not provide a FAPE and [2] the private school placement was ‘appropriate.’ " Klein , 690 F.3d at 396 (citing School Comm. of Burlington v. Dep't of Educ. of Mass. , 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) ); 34 C.F.R. § 300.148(c).
Right to Appeal and Standard of Review
Under the IDEA, any party aggrieved by a decision of an SEHO has the right to appeal the decision to the district court. 20 U.S.C. § 1415(i)(1)(A). An IDEA appeal "essentially asks the Court to decide the case based on the administrative record." Caldwell Indep. Sch. Dist. v. L.P. , 994 F. Supp. 2d 811, 817 (W.D. Tex. 2012) (citing Austin Indep. Sch. Dist. v. Robert M. , 168 F. Supp. 2d 635, 638 (W.D. Tex. 2001) ). A district court reviews the SEHO's determination "virtually de novo. " Lisa M. v. Leander Indep. Sch. Dist. , 924 F.3d 205, 213 (5th Cir. 2019) (quoting Teague , 999 F.2d at 131 ). More specifically, "although the district court is to give due weight to the hearing officer's findings, the court must ultimately reach an independent decision based on a preponderance of the evidence." Lisa M. , 924 F.3d at 213 (quoting Woody , 865 F.3d at 309 ) (internal quotation marks and alterations omitted).
To reach this independent decision, a court must "receive the records of the administrative proceedings and, basing its decision on the preponderance of the evidence, ... grant such relief as the court determines is appropriate." Lisa M. , 924 F.3d at 213 (quoting 20 U.S.C. § 1415(i)(2)(C) ) (internal quotation marks omitted). And on appeal, a court must consider whether the "student had a present need for special education services, such that the reviewing court should not judge a school district's determination in hindsight." Lisa M. , 924 F.3d at 213 (quoting D. L. by & through J.L. v. Clear Creek Indep. Sch. Dist. , 695 F. App'x 733, 738 (5th Cir. 2017) (per curiam)) (internal quotation marks omitted). The burden of persuasion is on the party challenging the SEHO's decision. Seth B. , 810 F.3d at 972.
Rather than "second guess the decisions of school officials or to substitute their plans for the education of disabled students with the court's," the judiciary's role in an appeal of the SEHO's determination is "limited to determine whether those officials complied with IDEA." R.H. v. Plano Indep. Sch. Dist. , 607 F.3d 1003, 1011 (5th Cir. 2010) (citing Flour Bluff Indep. Sch. Dist. v. Katherine M. , 91 F.3d 689, 693 (5th Cir. 1996) ). In other words, review under the IDEA "is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." E.M. , 2018 WL 1510668, at *5 (citing Rowley , 458 U.S. at 206, 102 S.Ct. 3034 ) (internal quotation marks omitted). Indeed, because "Congress left the choice of educational policies and methods ... in the hands of state and local school officials, the role of the judiciary under the IDEA is purposefully limited." Seth B. , 810 F.3d at 972 (quoting White ex rel. White v. Ascension Parish Sch. Board , 343 F.3d 373, 377 (5th Cir. 2003) ) (internal quotation marks omitted); see also E.M. , 2018 WL 1510668, at *5.
Parties’ Contentions
A district court's review of a SEHO's decision is twofold: the court must (1) determine whether the school district complied with the IDEA's procedural requirements; and (2) then determine if the student's IEP is reasonably calculated to provide meaningful educational benefits. Klein , 690 F.3d at 396 (citing Rowley , 458 U.S. at 206-07, 102 S.Ct. 3034 ). Here, Plaintiff and Defendant do not focus on the procedural requirements, instead presenting two competing theories related to the substantive requirements encompassed by the second step of the Court's review (i.e., the sufficiency of the IEP). At the second step of the analysis, the Court looks to four factors to determine whether the IEP was reasonably calculated: "(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." Klein , 690 F.3d at 396 (quoting Michael F. , 118 F.3d at 253 ). And while the Court is not required to consider or weigh these four Michael F. factors in any particular way, the Fifth Circuit has noted that the fourth factor is one of the most critical factors in this analysis. See Klein , 690 F.3d at 396, 399.
The Fifth Circuit has recently concluded that the "four Michael F. factors and the Supreme Court's holding in Endrew F. do not conflict." E. R. by E. R. v. Spring Branch Indep. Sch. Dist. , 909 F.3d 754, 765 (5th Cir. 2018).
Only two of the four relevant factors are seriously in question in the instant case—factors one and four—with the majority of Plaintiff's complaints involving the first factor. Plaintiff contends Defendant denied J.B. a FAPE because Defendant "allowed J.B.’s frustrations and negative behaviors to escalate without a BIP until it was too late," which "drove" J.B. "out of the general education classroom" [Dkt. 37 at 5, 25]. Plaintiff further contends "by the time of his first IEP [in February 2018], J.B. had well documented behavior problems. Yet, the March 9, 2018 and subsequent IEPs until December 2018 failed to include a BIP" [Dkts. 37 at 26-28; 42 at 5]. As a result, under the first Michael F. factor, Plaintiff contends the IEP was not sufficiently individualized because "J.B.’s assessments and performance showed the need for an FBA and development of a BIP in second grade and that the accommodations provided were insufficient" [Dkt. 37 at 29]. And as to the fourth Michael F. factor, Plaintiff contends the SEHO "too narrowly defined the time frame of J.B.’s decline in behavior to November and December of third grade and attributed it to medication changes" [Dkt. 37 at 30]. Plaintiff also points to J.B.’s failure to meet behavior expectations, refusal to complete class work, outbursts, inability to stay in school for the complete day, and removal from his teacher's classroom [Dkt. 37 at 30].
Conversely, Defendant contends it provided J.B. a FAPE by creating an IEP that was individualized, administered in the least restrictive environment, provided in a coordinated and collaborative manner by key stakeholders, and resulted in positive academic and non-academic benefits [Dkt. 30 at 2]. Defendant more specifically contends J.B.’s behavior did not initially warrant an FBA or BIP but that it otherwise "considered and included positive behavioral supports" [Dkts. 30 at 12; 39 at 9]. As a result, Defendant argues Plaintiff cannot meet the burden of establishing a denial of a FAPE during the relevant time period because Defendant provided an appropriate IEP under the Michael F. factors [Dkt. 30 at 26-33, 36]. Defendant also argues Plaintiff is not entitled to reimbursement for J.B.’s private placement because Plaintiff cannot demonstrate that (1) Defendant violated the IDEA, and (2) the private school placement was proper under the IDEA [Dkt. 30 at 34-36].
Some cases refer to the forthcoming factors as "Michael F. factors" or "Michael F. analysis" whereas others refer to "Cypress-Fairbanks factors." Compare Shafi , 2016 WL 7242768, at *6, with K.C. ex rel. M.C. v. Mansfield Indep. Sch. Dist. , 618 F. Supp. 2d 568, 577 (N.D. Tex. 2009). Here, the Court refers to the forthcoming factors as "Michael F. factors."
i. The IEPs
a. Factor One: Individualized
The first factor is whether the IEP was "individualized on the basis of the student's assessment and performance." Klein , 690 F.3d at 396 (quoting Michael F. , 118 F.3d at 253 ). "An IEP is sufficiently individualized when multiple assessments are conducted of the student, the ARD Committee considers these assessments, as well as guardian and teacher input, in developing the student's IEP, accommodations and modifications are made based on the student's performance and guardian input, and the IEP goals are revised or added to based on new assessment data." T.L. as Next Friend of J.M. v. Florence Ind. Sch. Dist. , No. 1:18-CV-1016-RP, 2020 WL 4434928, at *6 (W.D. Tex. July 31, 2020) (citing Z.C. v. Killeen Indep. Sch. Dist. , No. W:14-CV-086, 2015 WL 11123347, at *6 (W.D. Tex. Feb. 17, 2015) ). "This court's job is to determine ‘whether the [IEP] is reasonable , not whether the court regards it as ideal.’ " Renee J. v. Houston Indep. Sch. Dist. , 333 F. Supp. 3d 674, 688 (S.D. Tex. 2017) (quoting Endrew F. , 137 S. Ct. at 999 ) (emphasis in original). The SEHO concluded as to this first factor:
First, the evidence showed the School District implemented an IEP for Student during the relevant time period that was individualized on the basis of assessment and performance. Student's IEP goals and objectives were developed to address Student's area of need in social skills. The PLAAFPs used as the basis for formulating IEP goals and objectives in this area were derived from private assessments, School District assessments, parent input, and teacher input. The ARD committee reviewed a private neuropsychological evaluation, a School District FIE, and FBA, a private OT evaluation, a School District OT evaluation, and a private speech evaluation during the relevant time period. Student's special education identification was changed to add speech impairment and a BIP was added to his IEP based on these evaluations. Student's accommodations were adjusted at various times to add items to improve his social skills. The School District's LSSP trained staff on techniques to help teach Student social skills and de-escalate him.
Student's initial IEP did not include a BIP; however, it included several accommodations aimed at helping Student with his behaviors, with de-escalation, and with understanding his frustrations. In the Spring of 2018, Student's teachers were collecting data to determine if a BIP was needed. Student's behavior improved after Spring Break in 2018, which coincided with a change in his medication. In August 2018 Parents informed the School District their belief Student was not making progress. In response to the concern, the School District agreed to conduct an FBA for the purpose of developing a BIP if necessary. Teachers collected ABC data and the FBA was completed on October 15, 2018 before the 45 day deadline for completing an evaluation. The School District incorporated the BIP in Student's IEP during the November 7 – December 6, 2018 ARD meetings. Almost all of the preventions listed in the BIP were already in Student's accommodations. The only completely new prevention was to create and implement a preventative plan to remove Student to a safe place prior to escalation. While this was not listed in his original accommodations Student's 3rd grade teacher attempted to do this as explained by her testimony that she tried to stay ahead of his frustrations. If she knew a particular assignment may cause Student stress, she would stay near his desk and check on him. Student had "safe" places throughout the school in his general education classroom, in the resource classroom, and in the principal's office.
[AR 26-27].
The administrative record contains ample evidence of Defendant considering J.B.’s needs in formulating his IEP. The administrative record demonstrates the ARD committee relied on an FIE, an FBA, assessments, results, outside evaluations, and input from Defendant's employees and J.B.’s parents [AR 294-313, 318-43, 345-95, 409, 411-12, 429-30, 441, 443-44, 461-62, 471-98, 543, 545-46, 572-74, 620-21, 623-24, 650-62]. As a result, the ARD committee agreed upon goals and objectives to address J.B.’s behavior, attention, social skills, speech, and language [AR 350, 415-16, 447-48, 549-53, 560-64, 627-31, 638-45, 1002-05]. J.B.’s IEPs also included behavioral support in the general education environment [AR 348, 353, 412-14, 419, 423-25, 444-46, 451, 455-57, 546-48, 556-58, 624-25, 634, 645-46, 1002-05]. Indeed, J.B.’s initial IEP included behavior support such as goals on coping skills for de-escalation, social strategies, and instruction for sixty minutes per week [AR 1002]. See 20 U.S.C. § 1414(d)(3)(B)(i) ("The IEP Team shall ... in 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[.]"). The administrative record demonstrates Defendant consistently evaluated, consulted, prescribed, and addressed J.B.’s individualized needs—a comprehensive process that included extensive collaboration between J.B.’s parents and numerous qualified professionals.
Again, Plaintiff's principal opposition to this conclusion is that "J.B.’s assessments and performance showed the need for an FBA and development of a BIP beginning in second grade and that the accommodations provided were insufficient" [Dkt. 37 at 29]. Plaintiff re-states this proposition in his Sur-reply: "[t]he question then becomes did FISD know enough about J.B.’s behavioral problems that FISD should have completed a functional behavioral assessment and established a behavior intervention plan ... as part of J.B.’s IEP before it was too late" [Dkt. 42 at 5]. In sum, Plaintiff argues that additional (or earlier) evaluations were required for J.B. to receive a FAPE and J.B.’s IEP could not be individualized because it did not contain a BIP until December 2018. In support of such position, Plaintiff points to both the language of the IEPs and Dr. Grahovec's recommendation for a BIP in February 2018 [Dkt. 37 at 31].
The Court is unpersuaded that Defendant's alleged failure to complete an additional evaluation—an FBA—and/or a BIP sooner following Dr. Grahovec's recommendation carries Plaintiff's burden to render J.B.’s IEP not "individualized." "[I]n the case of a child whose behavior impedes the child's learning or that of others, [the IEP Team shall] consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior[.]" 20 U.S.C. § 1414(d)(3)(B)(i) ; 34 C.F.R. § 300.324(a)(2)(i) ; see also 19 TEX. ADMIN. CODE § 89.1055(e)(4) (describing examples of "positive behavior support strategies"). An FBA is generally considered "a systematic set of strategies that are used to determine the underlying function or purpose of a behavior so that an effective behavior management plan can be developed." Banks v. St. James Par. Sch. Bd. , No. 2:65-CV-16173, 2017 WL 2554472, at *5 (E.D. La. Jan. 30, 2017). However, the applicable "regulations suggest—but do not require—that an FBA be used to develop a BIP." R.P. ex rel. R.P. v. Alamo Heights Indep. Sch. Dist. , 703 F.3d 801, 813 (5th Cir. 2012) (citing 19 TEX. ADMIN. CODE § 89.1055 ). "Failure to conduct an FBA, therefore, does not render an IEP legally inadequate under the IDEA so long as the IEP adequately identifies a student's behavioral impediments and implements strategies to address that behavior." M.W. ex rel. S.W. v. New York City Dep't of Educ. , 725 F.3d 131, 140 (2d Cir. 2013). Based upon the Court's review of applicable authority, specific programs or strategies are not mandated so long as the educational organization takes appropriate steps to address a student's behavior; an FBA and BIP are simply examples of positive behavior support and are not the only way to provide positive behavioral support. See R.P. , 703 F.3d at 813. Stated differently, even when an FBA or BIP are not conducted at all, courts have found a student may be provided with a FAPE if the designed program adequately addresses the student's needs. See, e.g., Rosaria M. v. Madison City Bd. of Educ. , 325 F.R.D. 429, 439-40 (N.D. Ala. 2018) (concluding the school district's evaluation of the child's "behavior was not inadequate" even though it did not conduct an FBA because the district evaluated in the child "in several behavioral areas, using input from her teacher and her parents," and "created and implemented a plan to address [the child's] most problematic behaviors"). Plaintiff's own cited authority, R.E. v. New York City Dep't of Educ. , buttresses this conclusion. See 694 F.3d 167, 190 (2d Cir. 2012) ("The failure to conduct an FBA will not always rise to the level of a denial of a FAPE, but when an FBA is not conducted, the court must take particular care to ensure that the IEP adequately addresses the child's problem behaviors.").
Courts have considered an FBA under the first Michael F. factor. See, e.g., R.C. , 958 F. Supp. 2d at 733.
Here, the IEPs were reasonably calculated to enable J.B. to make appropriate progress. An FBA and BIP were, in fact, prepared; albeit late in Plaintiff's estimation. To that end, the Court has carefully considered the administrative record and determined that it supports the SEHO's conclusion: "Student's initial IEP did not include a BIP; however, it included several accommodations aimed at helping Student with his behaviors, with de-escalation, and with understanding his frustrations .... Almost all of the preventions listed in the [eventual] BIP were already in Student's accommodations" [AR 27]. As outlined in the preceding paragraphs, prior to conducting the FBA, Defendant provided J.B. extensive behavioral support; the plan created and implemented for J.B. was based on "acceptable ways of evaluating a child's behavioral needs under Texas regulations." See R.P. , 703 F.3d at 813. Again, the administrative record details the many FIE, assessments, results, outside evaluations, input from Defendant's employees and J.B.’s parents, the ARD committee's agreed upon goals and objectives to address J.B.’s behavior, and the behavioral support in the general education environment denoted in J.B.’s IEP (including coping skills, strategies, and weekly instruction as early as the initial IEP)—all prior to the October 2018 FBA. Defendant was well aware of J.B.’s behavioral needs throughout his time in the District and worked to address J.B.’s behavioral problems. The school officials most intimately associated with J.B.’s educational and non-educational advancement made an informed, professional decision that an FBA (or BIP) was not necessary during the March 2018 initial ARD committee meeting [AR 2450-53]. Nonetheless, Defendant consistently revisited and retooled its approach, in concert with J.B.’s parents, to address J.B.’s behavioral needs. Defendant collected ABC data to determine whether an FBA would be appropriate [AR 352, 362, 429-30, 2453-54, 2470-71]. And prior to the formal FBA in October 2018, Defendant took countless steps to accommodate and preemptively address J.B.’s particularized needs while collecting data, including positive behavioral interventions and support as well as other strategies to address his behavior, the bulk of which were ultimately listed in the BIP [AR 348, 351-53, 362, 412-14, 417-19, 444-46, 449-51, 546-48, 554-56, 560-65, 572, 624-26, 632-34, 1002-05]. Indeed, Plaintiff concedes that J.B.’s initial IEP contained behavioral support [AR 1002], and there was consensus regarding such behavioral support.
After the October 15, 2018 FBA, Dr. Stewart recommended a BIP, but the BIP could not be implemented into J.B.’s IEP until the ARD committee made such a determination [AR 2495]. The ARD committee meeting began on November 7, 2018, and concluded on December 6, 2018 [AR 572-74] after it recessed and reconvened multiple times. During the pendency of the ARD committee's conclusion, J.B. had accommodations and goals for his behavior [AR 2494-95].
In fact, the delay between the first request and the FBA is properly considered approximately six months, rather than eight months, because of a two-month summer break typically associated with elementary schools.
The fact that the positive behavioral support did not take the form of an FBA until October 2018 or a BIP until December 2018 does not run afoul of the first Michael F. factor. The administrative record demonstrates J.B.’s IEP was individualized, adequately identified his behavioral impediments, and implemented numerous strategies to address his behavior. See Shafi v. Lewisville Indep. Sch. Dist. , No. 4:15-CV-599, 2016 WL 7242768, at *2, 11 (E.D. Tex. Dec. 15, 2016) (opining "The ARD discussed whether an FBA or BIP was needed, but decided to monitor [the student's] behavior rather than conduct an FBA because [the student] was progressing" in finding the child's IEP sufficiently individualized where the IEP was based on multiple assessments and evaluations performed on the student and the IEP strategies were discussed with the child's parent(s)); see also G.I. v. Lewisville Indep. Sch. Dist. , No. 4:12CV385, 2013 WL 4523581, at *14 (E.D. Tex. Aug. 23, 2013) (concluding, in the alternative, that the plaintiffs could not show that the defendant violated the IDEA by failing to conduct an FBA because the defendant "appropriately addressed" the child's behaviors); T.L. , 2020 WL 4434928, at *7 ("The ARD Committee met frequently—far more frequently than required by the Act—reviewed each and every evaluation and assessment, and developed specific accommodations, services, and strategies in response to the evaluations, assessments, progress reports and observations of [the child].").
Plaintiff argues that J.B.’s IEPs failed to incorporate Applied Behavior Analysis [Dkt. 37 at 27]. The Texas Administrative Code lists Applied Behavioral Analysis as one example of a strategy rather than a requirement and further lists a BIP as one example of behavior support following an FBA and not a requirement. See 19 Tex. Admin. Code § 89.1055(e)(4) ("positive behavior support strategies based on relevant information, for example ... a behavioral intervention plan developed from a functional behavioral assessment"), (e)(11) ("for example ... applied behavior analysis"). As stated in the body, the fact that the positive behavioral support did not take the form of a BIP until December 2018 does not run afoul of the Autism Supplement nor, as detailed herein, the first Michael F factor. Section 89.1055(e), for context, is referred to as the "Autism Supplement." See Tex. Educ. Agency , https://tea.texas.gov/academics/special-student-populations/special-education/programs-and-services/autism (last visited Nov. 23, 2020).
In sum, J.B. was not denied a FAPE by Defendant's decision to not conduct a formal FBA until October 2018 or to earlier prepare a BIP. Defendant considered, collaborated, addressed, and re-addressed J.B.’s behavior with a multifaceted approach by numerous qualified professionals, and his parents, on numerous occasions.
The first Michael F. factor weighs in favor of finding J.B. received a FAPE.
The SEHO also concluded "Student's IEP was implemented by his general education teacher, his special education teacher, and the School District staff" [AR 28]. Failure to implement an IEP is generally a separate claim than challenging the adequacy of an IEP. See Spring Branch Indep. Sch. Dist. v. O.W. by Hannah W. , 961 F.3d 781, 795 (5th Cir. 2020). Here, Defendant preemptively argues it appropriately implemented J.B.’s IEP [Dkt. 30 at 33-34]. Plaintiff does not contest implementation of the IEP. Rather, Plaintiff's briefing as to the claim under the IDEA is cabined to the adequacy of the IEP (and, therefore, whether J.B. was denied a FAPE). See [Dkts. 37; 42].
b. Factor Two: Least Restrictive Environment
The next Michael F. factor is whether the IEP was "administered in the least restrictive environment." Klein , 690 F.3d at 396 (quoting Michael F. , 118 F.3d at 253 ). "The IDEA requires that children with disabilities be educated alongside children who are not disabled to the maximum extent appropriate and feasible." A.L. , 2018 WL 4955220, at *8 (citing 34 C.F.R. § 300.114(a)(2) ); see also E.M. , 2018 WL 1510668, at *14 (citing 20 U.S.C. § 1412(a)(5)(A) ). "Thus, ‘least restrictive environment’ denotes not only freedom from restraint, but the freedom of the child to associate with his or her family and able-bodied peers to the maximum extent possible." E.M. , 2018 WL 1510668, at *14 (quoting Teague , 999 F.2d at 128 n.2 ) (internal quotation marks omitted).
The SEHO concluded as to this second factor in relevant part:
Second, the evidence showed Student was educated in the least restrictive environment .... Student was in all general education classes with non-disabled peers during his second grade year and the fall of his third grade year. On the continuum of educational settings, general education is the least restrictive and a residential treatment center is the most restrictive.
[AR 28-30]. Because J.B. was in a general education classroom, he was in the least restrictive environment. See A.L. , 2018 WL 4955220, at *8 ; Klein , 690 F.3d at 398. Indeed, Plaintiff did not address this factor until the Sur-reply and therein concedes "least restrictive environment was not an issue" [Dkt. 42 at 4]. The second factor weighs in favor of finding J.B. received a FAPE.
Defendant argues Plaintiff waived any argument that the second and third Michael F. factors weigh in favor of J.B.’s appeal by not addressing those factors in the Response brief [Dkt. 39 at 8]. In support, Defendant cites Arkansas v. Wilmington Tr. Nat'l Ass'n , No. 3:18-CV-1481-L, 2020 WL 1249570, at *5 (N.D. Tex. Mar. 16, 2020). Arkansas involves the abandonment or waiver of issues in the motion to dismiss context. Thus, the Court, out of an abundance of caution, declines to render the second and third Michael F. factors abandoned or waived, particularly because Plaintiff's Sur-reply expressly addresses the second and third factors. However, even with consideration of Plaintiff's arguments, the Court still finds that the Michael F. factors weigh in favor of granting Defendant's Motion.
c. Factor Three: Provision of Services in a Coordinated and Collaborative Manner
The subsequent Michael F. factor is whether the services outlined in the IEP were "provided in a coordinated and collaborative manner by the key ‘stakeholders.’ " Klein , 690 F.3d at 396 (quoting Michael F. , 118 F.3d at 253 ). "This factor requires a variety of individuals, including persons with personal relationships to the student and school district employees, to work together to jointly develop the student's IEP." T.L. , 2020 WL 4434928, at *8 (citing Michael F. , 118 F.3d at 253 ). "Furthermore, simply because disagreement exists between the guardian and the School District as to the proper services to provide does not mean that the factor is not met." T.L. , 2020 WL 4434928, at *8 (citing R.C. ex rel. S.K., D.H. v. Keller Indep. Sch. Dist. , 958 F. Supp. 2d 718, 736-37 (N.D. Tex. 2013) ); see also William V. v. Copperas Cove Indep. Sch. Dist. , No. 6:17-CV-00201-ADA-JCM, 2019 WL 5394020, at *9 (W.D. Tex. Oct. 22, 2019) (same). "Absent any evidence of bad faith exclusion of the parents or refusal to listen to or consider the parents’ input, a school district has met IDEA requirements with respect to parental input." T.L. , 2020 WL 4434928, at *8 (quoting White , 343 F.3d at 380 ) (alterations omitted); see also D.C. v. Klein Indep. Sch. Dist. , No. 4:19-CV-00021, 2020 WL 2832968, at *8 (S.D. Tex. May 29, 2020) (same). The SEHO concluded as to this third factor:
Third, the evidence showed Student's services were provided in a coordinated, collaborative manner by key stakeholders. Several ARD meetings occurred over Student's time in the School District. At least one parent, if not both, were present at all ARD meetings as well as a general education teacher, a special education teacher, and an administrator. Parents were in regular contact with the School District. Parents emailed teachers and staff as well as had biweekly meetings with teachers and staff. Teachers and staff discussed amongst themselves how to handle Student and brainstormed strategies to address his needs. When the parents had any concerns about Student's grades or behaviors, ARDs were held or emails were exchanged with teachers and administration.
[AR 30-31].
Similar to the second factor, Plaintiff did not address the third factor until the Sur-Reply, focusing instead on the first and fourth factors in briefing. Plaintiff concedes J.B.’s parents participated in the ARD committee meetings but broadly argues there was not collaboration because Defendant "did not listen to J.B.’s parents’ concerns, for example, when it ignored Mrs. B's request for a behavior plan on February 8, 2018" [Dkt. 42 at 4]; see also [AR 1039]; [Dkts. 37 at 9; 42 at 4 n.8]. Notwithstanding Plaintiff's argument to the contrary, the administrative record demonstrates J.B. received numerous services in a general education setting that were tailored to his individual needs and done in coordination with his teachers and other qualified professionals. There were at least four distinct ARD committee meetings between March 9, 2018, and December 6, 2018. The March 9, 2018 ARD committee meeting included J.B.’s father and ended in consensus [AR 344, 362-63, 1001-02]. Both the April 27, 2018, and August 10, 2018 ARD committee meetings included J.B.’s father and mother and ended in consensus [AR 431, 464-65, 1002]. And the November 7, 2018 ARD committee meeting, which included at least J.B.’s mother, recessed and reconvened multiple times but ultimately ended in consensus on December 6, 2018 [AR 573-75, 1003-04]. It was not until the January 18, 2019 ARD committee meeting—approximately 315 days after the first ARD committee meeting and the extensive collaboration in between—that J.B.’s parents were no longer in consensus with the careful conclusions of other the ARD committee members. Even then, disagreement does not mean that J.B.’s "services were not offered in a coordinated and collaborative fashion." See Shafi , 2016 WL 7242768, at *8 (quoting R.C. , 958 F. Supp. 2d at 736 ). Thus, the record reflects that a variety of individuals, including J.B.’s parents in ARD committee meetings spanning almost one year, worked "together to jointly develop the student's IEP." See T.L. , 2020 WL 4434928, at *8. "Plaintiff has provided no evidence of bad faith exclusion of his parents or a refusal by the District to listen to or consider his parents’ input." R.S. by & through Ruth B. v. Highland Park Indep. Sch. Dist. , No. 3:16-CV-2916-S, 2019 WL 1099753, at *23 (N.D. Tex. Mar. 8, 2019). Therefore, the third Michael F. factor weighs in favor of granting Defendant's Motion.
d. Factor Four: Demonstrable Positive Academic and Non-academic Benefits
The fourth Michael F. factor, whether "positive academic and non-academic benefits are demonstrated," is one of the most critical factors. Klein , 690 F.3d at 396 (quoting Michael F. , 118 F.3d at 253 ). "[E]vidence of an academic benefit militates in favor of finding an IEP is appropriate." Klein , 690 F.3d at 396 (citing Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist. , 328 F.3d 804, 810 (5th Cir. 2003) ). "Courts determine whether academic and non-academic benefits resulted from a student's IEP by looking to the individual student's progress or regress, rather than by comparison to the academic progress achieved by the student's peers." T.L. , 2020 WL 4434928, at *8 (citing Hous. Indep. Sch. Dist. v. Bobby R. , 200 F.3d 341, 349 (5th Cir. 2000) ). Moreover, "when a learning-disabled student is being educated in the regular classrooms of the public education systems, an IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Klein , 690 F.3d at 396 (citing Rowley , 458 U.S. at 204, 102 S.Ct. 3034 ) (internal quotation marks and alterations omitted). "However, the core of the IDEA is to provide access to educational opportunities and requires only the ‘basic floor of opportunity,’ and some meaningful educational benefits more than de minimis, not a perfect education and not the maximum of [the child's] potential." E.M. , 2018 WL 1510668, at *16 (citing V.P. ex rel. Juan P. , 582 F.3d at 583 ). Rather than commanding a bright-line rule, this factor requires the Court to examine the "unique circumstances of the child for whom [the IEP] was created." Renee J. , 333 F. Supp. 3d at 691 (quoting Endrew F. , 137 S. Ct. at 1001 ).
The SEHO concluded as to this final factor in relevant part:
Fourth, the evidence supports the conclusion Student received both academic and non-academic benefits from the educational program at issue .... Student made all As in his classes and was in the GT program at his school. Student was successful in academics and was at or above grade level in all of his classes .... Student's behavior progress began to decline in November and December 2018. This decline in behavior coincided with changes in Student's medication. The School District was planning on addressing this decline in the proposed IEP from January 2019. The BIP the School District developed was not implemented due to Student's withdrawal from the School District.
[AR 31].
Plaintiff points to J.B.’s failure to meet behavior expectations, J.B.’s teachers’ summaries of his behavior, J.B.’s refusal to complete class work, J.B.’s numerous outbursts, J.B.’s inability to "stay in school for the complete day later in third grade," and J.B.’s teacher's two requests for J.B. to be permanently removed from her classroom [Dkt. 37 at 30]. J.B. not only passed all of his classes, but also received "A"s and performed "on grade level" during the relevant time period [AR 684-85, 687-89, 1255-58, 1441]. There is no reasonable dispute that J.B. demonstrated positive academic benefits. This evidence weighs in favor of finding the IEP appropriate. See Klein , 690 F.3d at 399. As far as non-academic benefits, Defendant persuasively points out that J.B. demonstrated positive non-academic benefits because he met behavior expectations a vast majority of the time from April 2018 through the end of his second grade year [AR 701-74], observations reflected improved behavior and progress on IEP goals [AR 429-30, 1254-55, 1307, 1395, 1441, 2470-72], and J.B.’s teacher's testimony that demonstrates J.B.’s behavior was generally not concerning—particularly leading up to November 2018 [AR 2054, 2059, 2064-66, 2068, 2089, 2100-02].
In opposition to this finding, Plaintiff cites Neosho R-V Sch. Dist. v. Clark , 315 F.3d 1022, 1028-29 (8th Cir. 2003) [Dkt. 37 at 30]. Neosho is distinguishable. In Neosho , the Eighth Circuit concluded the school district failed to provide the child with "an educational benefit by not developing and implementing an appropriate behavior management plan as required by his IEPs." Id. at 1030. The Eighth Circuit pointed to expert witnesses who "testified that the papers attached to the IEPs were not sufficient to amount to a comprehensive behavior management plan." Id. at 1028. Indeed, "such a plan was never adopted by the IEP, in spite of the fact that [the child's] behavior problem was the major concern at every IEP meeting." Id. The Eighth Circuit also noted the special education teacher and paraprofessional tried to cope with the child's behavioral problems but were "not professionally trained to successfully reduce the inappropriate behavior in a manner fitting to [the child's] disabilities." Id. at 1029.
Plaintiff also cites a case from the Eastern District of Pennsylvania, arguing "J.B.’s behavioral issues were more severe" [Dkt. 37 at 30-31]. There, unlike here, the "Special Education Appeals Panel" reversed in part and affirmed in part the hearing officer's decision after concluding the child's "IEP required ‘a behavior management plan that shaped the desired behaviors and used positive reinforcement rather than the negative consequences provided’ and ‘the District should have known that the program it was provided was not effective.’ " Lauren P. ex rel. David P. v. Wissahickon Sch. Dist. , No. 05-5196, 2007 WL 1810671, at *2 (E.D. Pa. June 20, 2007), aff'd in part, rev'd in part , 310 F. App'x 552 (3d Cir. 2009). The Lauren P. Court, agreeing with the appeals panel, concluded the child's IEP "clearly had the same failing as previous IEPs; it lacked a behavior management plan, and at the time it was created the District knew or should have known that any IEP lacking a behavior management plan was not providing [the child] with an appropriate education." Id. at *9. But as this Court detailed herein, an FBA and BIP are examples of behavioral support that can be provided. And as this Court also detailed herein, J.B., unlike in Lauren P. , was provided with a cohesive plan to meet his behavioral needs.
Here, Defendant, unlike the school district in Neosho , had a cohesive plan to meet J.B.’s behavioral needs. In August 2017, J.B. received new behavioral accommodations, and Defendant agreed to monitor J.B.’s behavior [AR 273]. These accommodations were updated in November 2017 [AR 278-81]. After J.B.’s parents requested, in February 2018, that Defendant provide special education services [AR 362, 1001] following Dr. Grahovec's recommendation that J.B. obtain a behavior medication plan [AR 306], J.B.’s parents consented to a FIE [AR 317, 1001]. In February 2018, J.B.’s teacher documented J.B.’s daily behavior problems [AR 328-43]. The following month, the ARD committee created J.B.’s first IEP, which included behavior support, de-escalation, social skills, and direct instruction [AR 1002]. The ARD committee, including J.B.’s father, all agreed to collect ABC data "the Monday after spring break" and that "a decision will be made regarding an FBA" [AR 344, 352, 362-63, 1001-02]. In April 2018, the ARD committee, including J.B.’s father and mother, noted J.B.’s behavioral improvement and agreed to continue collecting behavioral data but nonetheless added new goals and support [AR 410-14, 429-31, 1002, 2470-71]. After J.B.’s parents expressed dissatisfaction with J.B.’s progress in August 2018, Defendant agreed to conduct an FBA [AR 464-65, 1002]. In September 2018, J.B.’s IEP was amended, again, to include additional weekly support [AR 1003]. More amendments were made to J.B.’s IEP on two separate days in October 2018 [AR 1003]. And on October 15, 2018, Defendant completed an FBA [AR 532-41, 1003]. The ARD committee, including at least J.B.’s mother, subsequently developed in November 2018 an exit plan and modified goals in response to J.B.’s behavior [AR 573-75, 1003]. A behavioral specialist also observed J.B. on multiple occasions in late November and early December 2018 [AR 1519-39, 2542-50]. Finally, the ARD committee, including J.B.’s mother, in December 2018 reviewed a proposed BIP and behavior goals and ultimately agreed that Defendant will provide additional staff training, support, and accommodations for J.B.’s behavioral needs [AR 572, 581-82, 1004]. Staff subsequently completed this training [AR 1004], but J.B. did not return to Frisco ISD in January 2019 [AR 590, 1004]. In sum, Defendant collaborated with J.B.’s parents on numerous occasions to create, implement, and regularly alter a cohesive plan to meet J.B.’s behavioral needs. The fourth Michael F factor weighs in favor of finding J.B. received a FAPE.
Plaintiff also argues, as to the fourth factor, that the SEHO erred by narrowly defining "the time of J.B.’s decline in behavior to November and December of third grade and attributed it to medication changes" [Dkt. 37 at 29-30]. As Defendant aptly responds [Dkt. 39 at 12-13], the record is replete with examples of J.B.’s improved behavior up until the middle of October, as detailed herein. Indeed, J.B.’s father and mother, alongside the rest of the ARD committee in April 2018, agreed that J.B.’s behavior was improving [AR 410-14, 429-31, 1002, 2470-71]. The Court is unprepared to conclude that the fourth factor weighs in favor of Plaintiff based on the record during Fall 2018 but before he was removed from Frisco ISD.
In the IDEA context, "courts should not lightly disregard educators’ decisions on the appropriate educational methods to achieve a FAPE." Klein , 690 F.3d at 398. Indeed, the Supreme Court recently emphasized:
The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule, however, should not be mistaken for "an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review."
Endrew F. , 137 S. Ct. at 1001 (quoting Rowley , 458 U.S. at 206, 102 S.Ct. 3034 ). Considering the administrative record and its bearing on each of the Michael F. factors in light of the applicable standards, the Court finds that Plaintiff has failed to carry the burden of demonstrating J.B. was denied a FAPE. "The IDEA guarantees an appropriate education, not a perfect education." T.L. , 2020 WL 4434928, at *9 (quoting E.R. v. Spring Branch Indep. Sch. Dist. , No. 4:16-CV-0058, 2017 WL 3017282, at *29 (S.D. Tex. June 15, 2017) ). Again, the record fails to demonstrate substantive violations that denied J.B. his right to a FAPE.
ii. SEHO's Recitation of the Record
Finally, to the extent Plaintiff also argues the SEHO erred in the recitation of the record [Dkts. 37 at 23-25; 42 at 2], such argument is immaterial because the Court independently finds that Plaintiff has not met the burden to establish the SEHO erred when it determined J.B. was not denied a FAPE.
In sum, the Court finds that Plaintiff has not met the burden to establish the SEHO erred when it determined J.B. was not denied a FAPE. Again, "Congress left the choice of educational policies and methods ... in the hands of state and local school officials, [and] the role of the judiciary under the IDEA is purposefully limited." Seth B. , 810 F.3d at 972. The Court declines to disturb the SEHO's careful consideration of the record and Defendant's comprehensive steps to preemptively and affirmatively address J.B.’s individualized needs through an IEP analyzed herein under the Michael F. factors. And because the Court reaches this conclusion, it need not consider whether J.B.’s private school placement was "appropriate." See Klein , 690 F.3d at 396 (describing how a court must hold "that the proposed IEP did not provide a FAPE and the private school placement was ‘appropriate’ "); R.C. , 958 F. Supp. 2d at 737 ("As the court has already determined that defendant offered plaintiff an individualized and appropriate IEP and made a FAPE available, plaintiff cannot satisfy the first prong of this analysis.").
CONCLUSION AND RECOMMENDATION
Based on the foregoing, the undersigned recommends Defendant Frisco Independent School District's Motion for Judgment on the Administrative Record [Dkt. 30] be GRANTED . Plaintiff J.B. b/n/f Lauren and Eric B.’s claim under the Individuals with Disabilities Education Act should be DISMISSED WITH PREJUDICE . Plaintiff J.B. b/n/f/ Lauren and Eric B.’s two claims under Section 504 remain.
"In making this finding, the Court is not only mindful of Plaintiff[’s] failure to sustain the[ ] evidentiary burden but also of the Fifth Circuit's guidance regarding the district court's role in suits under the IDEA." Shafi , 2016 WL 7242768, at *10. "Primarily, Fifth Circuit courts have construed the IDEA to create a presumption in favor of the education plan proposed by the school district, and places the burden of proof on the party challenging it." Id. (citing Alamo Heights Indep. Sch. Dist. v. State Bd. of Edu. , 790 F.2d 1153, 1158 (5th Cir. 1986) ; Salley v. St. Tammany Parish Sch. Bd. , 57 F.3d 458, 467 (5th Cir. 1995) ; Teague , 999 F.2d at 132 ). "More importantly, the Fifth Circuit has acknowledged that ‘Congress intentionally left the choice of educational policies and methods where it properly belongs—in the hands of state and local school officials.’ " Shafi , 2016 WL 7242768, at *10 (quoting White , 343 F.3d at 377 ). "The role of the judiciary is not to second-guess the decisions of school officials or to substitute their plans for the education of disabled students with the court's." Shafi , 2016 WL 7242768, at *10 (quoting R.H. , 607 F.3d at 1010 ).
Within fourteen (14) days after service of the magistrate judge's report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds , 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).