Opinion
CIVIL ACTION NO. 06-0354.
September 28, 2007
MEMORANDUM OPINION ORDER
I. INTRODUCTION
This case is brought under the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C. § 1400 et seq., as an appeal of the Texas Education Agency ("TEA") hearing officer's decision in D.B. b/n/f C.B. v. Houston Indep. Sch. Dist., Docket No. 272-SE-0405. Plaintiff also asserts causes of action under the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act ("Section 504"), and the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("Section 1983"). Pending before the court are Defendants Houston Independent School District's ("HISD's") and TEA's motions for summary judgment (Docs. 33 35 respectively). Plaintiff D.B. b/n/f C.B. (hereafter "D.B.") filed a response (Doc. 41) to which HISD has replied (Doc. 42).
The IDEA was amended on December 3, 2004 and became effective on July 1, 2005. See Individuals with Disabilities Education Improvement Act of 2004, Pub.L. No. 108-446, 118 Stat. 2647, 2803. The underlying due process hearing request was filed on April 21, 2005, prior to the effective date of IDEA 2004. All citations herein are to the 1997 IDEA, and to the applicable Code of Federal Regulations, unless otherwise indicated.
42 U.S.C. § 12101 et seq.
29 U.S.C. § 701 et seq.
The Act requires that special education students receive individualized instruction in accordance with an Individual Education Plan ("IEP") developed by a team of school administrators, teachers, and the child's parents. See 20 U.S.C. §§ 1401(11), 1414(d). An IEP must contain, inter alia, a statement of the child's current educational performance and measurable educational goals. 20 U.S.C. § 1414(d)(1)(A)-(B). The crux of this case is whether the absence of a behavior IEP coupled with steady academic and behavioral decline, amounts to a denial of a free appropriate public education ("FAPE"). The court finds that it does and, consequently, ORDERS that partial summary judgment for plaintiff is GRANTED; that TEA's motion is GRANTED; and that HISD's motion is GRANTED-IN-PART and DENIED-IN-PART.
II. LEGAL STANDARD
(A) General Standard of Review in IDEA Cases
When a district court reviews a hearing officer's decision under the IDEA, the court's review is "virtually de novo." Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 808 (5th Cir. 2003) (quoting Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993)). Although "due weight" is to be given to the hearing officer's findings, they are not conclusive and the court "must ultimately reach an independent decision based on a preponderance of the evidence." Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000), cert. denied, 531 U.S. 817 (2000) (quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997 ), cert. denied, 522 U.S. 1047 (1998)); see also Teague, 999 F.2d at 131. The district court should not defer to the hearing officer's findings when its own review of the evidence indicates that the hearing officer erroneously assessed the facts or erroneously applied the law to the facts. Teague, 999 F.2d at 131. In this respect, the procedure is more akin to an appeal from an administrative determination rather than a standard summary judgment analysis. The burden of proof is on the party challenging the IEP, in this case, the Plaintiff. See Bobby R., 200 F.3d at 347. Finally, "[t]he Court's task is not to second-guess state and local policy decisions." Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989). Rather, it is determine whether state and local school officials have complied with the Act. Id.
(B) Assessing the Adequacy of an IEP
Congress enacted the Act to guarantee that all disabled children have access to "a free appropriate public education . . . designed to meet their unique needs." 20 U.S.C. § 1400(d). In 1982 in Board of Education v. Rowley, the Supreme Court explained that the issue of whether a school district provides FAPE hinges on a two-pronged inquiry: first, whether the school district complied with the procedures prescribed in the IDEA; and, second, whether the resulting IEP is "reasonably calculated to enable the child to receive educational benefits." 458 U.S. 176, 207 (1982); see also Cypress-Fairbanks, 118 F.3d at 249.
1. The Rowley Procedural Prong
The IDEA procedures guarantee parents the right to examine all school records, the right to participate in the development of an IEP for their children, and the right to an impartial due process hearing at which they can air their complaints about the school district's "identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6); see also 20 U.S.C. §§ 1415(b)(1)-(5), 1415(f). A procedural violation alone may "warrant a finding that, as a matter of law, the school has failed to provide a free appropriate public education." Adam J., 328 F.3d at 811 (quoting Buser by Buser v. Corpus Christi Indep. Sch., 51 F.3d 490, 493 (5th Cir. 1995)). The procedural violation, however, must result in the loss of an educational opportunity to be actionable. Id. at 812.
2. The Rowley Substantive Prong
The Fifth Circuit identifies four factors to indicate whether an IEP is reasonably calculated to provide a meaningful educational benefit. These factors are whether: (1) the program is individualized; (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. Cypress-Fairbanks, 118 F.3d at 253; Bobby R., 200 F.3d at 347-48.
III. RELEVANT FACTS
This case centers on the special education services provided to D.B., a HISD student, during his 2004-2005, sixth-grade year at Thomas Middle School ("Thomas"). D.B. lives with his mother, C.B., and his grandmother, M.B., and has struggled with behavior issues from a very early age. D.B. has undergone many psychological evaluations over the years, leading to a plethora of diagnoses including Attention Deficit Hyperactivity Disorder ("ADHD"), Oppositional Defiance Disorder ("ODD"), Major Depressive Disorder, Bipolar Disorder, mixed, and, most recently, Asperger's Syndrome. He received special education services from HISD under the eligibility category of emotional disturbance.
Asperger's Syndrome is an Autistic Spectrum Disorder characterized by a severe and sustained impairment in social interaction and the development of restricted, repetitive patterns of behavior, interests, and activities. (Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. ("DSM-IV") Admin. R. vol. III at 882.)
In 2002, psychiatrist Dr. Kay Lewis ("Lewis") assessed D.B. for school placement. ( See Lewis Evaluation, dated August 7, 2004, Admin. R. vol. II at 132-34 (hereafter "Lewis Eval. I").) Her initial impression was ADHD, Motor Tic Disorder, and Major Depressive Disorder. ( Id.) In 2004, Lewis modified her diagnosis of D.B. as Bipolar Disorder, mixed, and ADHD. ( Id.) A year later, she diagnosed D.B. with Asperger's Syndrome. ( See Lewis Evaluation, dated August 9, 2005, Admin. R. vol. III at 847-49 (hereafter "Lewis Eval. II").)
From 2002 to 2005, beginning in the fourth-grade, D.B. attended three different HISD schools: Caldwell Elementary ("Caldwell"), Grimes Elementary ("Grimes"), and Thomas. At Caldwell, D.B. exhibited disruptive behavior problems, including frequent outbursts, excessive talking, and defiant and off-task behaviors. (Admin. R. vol. II at 113.) As a result, an Admission, Review, and Dismissal ("ARD") committee was convened. Finding that D.B. would benefit from a smaller, more structured setting, the committee removed D.B. from his regular education placement at Caldwell and placed him in a behavior services class ("BSC") at Grimes. ( Id. at 156.) In conjunction with this placement, the committee completed a functional behavior assessment ("FBA") and developed a behavior intervention plan ("BIP") and behavior IEP. ( Id. at 157-62.) Later, a counseling IEP was included. ( See id. at 172, 175.)
A BSC is a smaller, more restrictive setting where special education students with similar behavioral needs may be placed within HISD. ( See Final Decision, dated Nov. 4, 2005, ¶ 1, Admin. R. vol. I at 6.)
The requirements for an FBA are not well defined by federal law or regulation; nevertheless, a proper FBA attempts to identify the likely triggers to and the appropriate interventions for problem behaviors. An FBA may, therefore, aid an IEP Team in developing appropriate IEPs.
The IDEA requires that "in 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).
The parties do not clarify the distinction between a BIP and a behavior IEP. For the purposes of this opinion, "BIP" will refer to the intervention techniques that the ARD committee evaluates and enforces, and "behavior IEP" will refer to the individually-tailored plan with behavior goals and objectives.
In 2003, the Grimes ARD committee conducted a new FBA and revised D.B.'s BIP and behavior IEP to target his tantrums and attention problems. ( Id. 238-41.) Nevertheless, D.B.'s behavior continued to cause problems, and at the end of D.B.'s fifth-grade year at Grimes, the ARD committee recommended, and C.B. agreed, to move D.B. into another behavior class at Thomas for his 2004-2005, sixth-grade year.
D.B.'s year at Thomas did not begin well. On the first day of classes, D.B. had a severe outburst with no apparent provocation. In response, associate principal Bill Sorrells, Jr. ("Sorrells") scheduled a staff meeting to which he invited C.B. and M.B. ( See Admin. R. vol. II at 430-33.) Eleven HISD personnel were present including the classroom teacher, the teacher's aide, the campus police officer, the school nurse, the school counselor, the special education department chair, and the special education administrator. ( Id.) The meeting was not an ARD meeting, but an opportunity for everyone to be "on the same page." ( Id.) The parties discussed the previous day's incident, D.B.'s general likes and dislikes, and suggestions about how to respond to D.B.'s behaviors. ( See id.) C.B. indicated that she wanted to know about any problems at school, and the parties agreed to communicate accordingly. ( Id.)
D.B. continued to have behavior problems throughout the year: He did not interact well with his peers; he was defiant with authority and frequently used profanity ( see Admin. R. vol. II at 382-415); he also exhibited odd behaviors such as always removing his shoes immediately upon entering a room and spending hours alone on the school playground putting rocks in bottles. (Final Decision ¶ 2, Admin. R. vol. I at 7.) D.B.'s behavior was sometimes aggressive, and some outbursts escalated to breaking furniture, throwing school desks, and/or biting, kicking, scratching, and spitting on school personnel. ( Id. ¶ 6; see generally Admin. R. vol. II at 382-415; see also Hr'g Tr. 379 and 837-38.) The only consistent thing the Thomas personnel did in response to D.B.'s behavior was call C.B. and inform her of the problems.
When C.B. requested an ARD meeting to discuss evaluating D.B. for autism, the Thomas ARD committee met on October 19, 2004. (Admin. R. vol. II at 267-84.) At the meeting, C.B. requested a psycho-education and psychological evaluation to determine whether D.B. qualified for Asperger's. ( Id. at 283.) The school agreed to do the evaluation for autism, but the evaluation remained incomplete until March 2005. ( See Hr'g Tr. 488-89; see also Admin. R. vol. II at 143-46.) Despite D.B.'s severe behavior problems, the ARD committee did not make any changes to D.B.'s behavior IEP or review his behavior intervention plan.
D.B. had two behavior teachers during his sixth-grade year at Thomas: Zacchaeus Woods ("Woods") in the fall 2004 semester and Reginald Williams ("Williams") in the spring 2005 semester. Both Woods and Williams used a point-based leveling system whereby points were gained or lost for behavior. Woods testified that he had neither seen the 2003 BIP nor implemented the 2003 behavior IEP for D.B. ( See Hr'g Tr. 175.) Williams, unlike Woods, attempted to integrate the 2003 behavior IEP, but as the hearing officer found, `[t]he record is ambiguous regarding any IEPs that were in place for D.B.'s counseling and behavior intervention programs." (Final Decision ¶ 18, Admin. R. vol. I at 13.) The hearing officer concluded that "D.B.'s teachers and counselors in the 2004-2005 school year were, at least for the most part, unfamiliar with these [IEPs] from past years and have not been following them in planning D.B.'s programs or reporting D.B.'s performance under these plans to his parents." ( Id.)
In December 2004, Woods resigned in lieu of termination after assaulting another teacher at Thomas. (Admin. R. vol. II at 423-28.)
Bertha Johnson ("Johnson"), a special education coordinator for HISD, performed an audit of D.B.'s special education folder in late spring 2005. ( Id. at 17 and 71.) At that time, no updated counseling or behavior IEP, BIP, or FBA had been completed. (Hr'g Tr. 66-69; see also Johnson Memo, dated April 12, 2005, Admin. R. vol. III at 638.) Nor did D.B.'s folder contain a record of behavior or counseling objectives, goals, or documented progress.
On May 13, 2005, the ARD committee reconvened. ( See id. vol. II at 291-319.) The meeting lasted almost seven hours. (Hr'g Tr. 785.) During that time, the ARD committee (1) reviewed the results of D.B.'s recent Full and Individual Evaluation ("FIE"), completed on March 4, 2005 (Admin R. vol. II at 317); (2) reviewed the results of D.B.'s psychological evaluation, completed on April 3, 2005; (3) developed an IEP for the 2005-2006 school year; and (4) discussed compensatory services.
HISD evaluation specialist Cheryl Villareal ("Villareal") presented the test results from the 2005 FIE. In comparison to the FIE assessment from three years prior (hereafter "2002 FIE"), D.B.'s cognitive and academic performance had significantly declined. D.B.'s intellectual functioning went from "average" to "low," and his composite cognitive ability score dropped twelve points between his fourth and sixth-grade years. Moreover, D.B. was well-below grade level in many basic areas of academic achievement.
HISD psychologist Dr. Celia Lonnecker, Ph.D. ("Lonnecker") conducted D.B.'s psychological evaluation. (Lonnecker Psychological Evaluation, Admin. R. vol. I at 143-46 (hereafter "Lonnecker Eval.").) Based on a battery of psychological tests and on C.B.'s indication that D.B. was not developmentally delayed before the age of three, Lonnecker concluded "the probability of Autism is low." ( Id. at 145.) C.B. adamantly disagreed with Lonnecker's conclusion, and requested an independent evaluation to test for autism. (Admin. R. vol. II at 317; see also Hr'g Tr. 511, 514.) The rest of the committee, however, refused to consent to an additional psychological evaluation.
Next, the ARD committee turned its attention to developing an IEP for the following 2005-2006 school year. After conducting an FBA (Admin. R. vol. II at 311-13), the committee formulated a behavior IEP to decrease the following "two" behaviors: (1) being out of an assigned area; and (2) using profanity, tantrums (outbursts), screaming, throwing books, turning over desks, kicking, biting, spitting, and pulling objects off the wall. ( Id. at 314.) The committee also developed an updated counseling IEP with similar goals. ( Id. at 300.) The school district recommended the proposed IEP be implemented at ABC East, a more restrictive placement. ( See id. at 317.) C.B. opposed the move.
The form indicates that these behaviors are "behavior[s] to be increased" The court assumes HISD meant the opposite.
Finally, the ARD committee discussed compensatory services for the lack of formal counseling and behavior IEPs. HISD offered thirty-six (36) hours of compensatory counseling and an unspecified amount of compensatory time in the Extended Summer Program offered at ABC East to compensate for the absence of these IEPs. ( Id. at 316.) C.B. declined HISD's offer, and the ARD committee did not reach mutual agreement.
D.B. filed for a special education due process hearing on April 21, 2005. A three-day hearing was held in August 2005. Most of the testimony dealt with diagnostic issues and an appropriate placement for D.B. HISD claimed that D.B. did not have an autistic-spectrum disorder and that the proposed placement at ABC East was appropriate. D.B. argued that autism was a more appropriate diagnosis and that ABC East, which mainly serves children with emotional disturbances, would not be an adequate placement. D.B. proposed two private placements: Monarch School and Memorial Hall. The specific issues before the hearing officer included: (1) whether placement of D.B. in the BSC class at Thomas was consistent with the least restrictive environment principles in the IDEA; (2) whether D.B. suffered physical and verbal abuse from HISD personnel or from improperly supervised fellow students at Thomas; (3) whether D.B. suffers from an autistic disorder; (4) whether a proposed future placement of D.B. in ABC East would be appropriate if approved by the ARD committee; (5) whether proper counseling and behavior IEPs were in place for the 2004-2005 school year; and (6) whether D.B. was entitled to reimbursement for hiring Dr. Gerald Harris ("Harris"), a psychologist who evaluated D.B. for autism after HISD declined C.B.'s request for an independent psychological evaluation. ( See Synopsis, Admin. R. vol. I at 19-20.)
A bevy of mental health professionals weighed in on the correct diagnosis and placement for D.B. Lewis and Harris testified on behalf of D.B. Lewis, who had diagnosed D.B. with Asperger's on August 9, 2005, was unfamiliar with either of D.B.'s preferred schools, but thought both were more appropriate than ABC East. ( See id. at 102.) Harris diagnosed pervasive development disorder not otherwise specified, or PDD-NOS. (Harris Evaluation Report, July 27 and 28, 2005, Admin. R. at 862-75 (hereafter "Harris Eval.").) He also recommended placement at either the Monarch School or Memorial Hall. (Hr'g Tr. 275.)
Lonnecker and HISD's special education psychologist, Dr. Leslie Crossman ("Crossman"), offered their testimony on behalf of HISD. Lonnecker reaffirmed her conclusion that D.B. did not have Asperger's or any other autistic-based disorder. She believed his behaviors were characteristic of his existing diagnoses, i.e., ADHD, ODD, and Bipolar Disorder. ( See id. at 197-99.) Lonnecker testified that D.B. would benefit from placement at ABC East because of the small student-teacher ratio and the specific behavioral interventions. ( Id. at 208.) She was critical of Lewis's and Harris's belated and conflicting autistic-spectrum diagnoses, noting that neither seemed to have talked to school personnel in reaching their conclusions. Crossman testified that the most appropriate placement for D.B. was ABC East. ( Id. at 683.)
The hearing officer found Lewis, Lonnecker, and Crossman the more persuasive of the experts. (Final Decision ¶ 9, Admin. R. vol. I at 9.) He concluded that "the diagnosis of whether D.B. is autistic is uncertain," but found enough evidence suggesting an autistic disorder to require the ARD committee to consider the "autism supplement" in drafting D.B.'s future IEPs. ( Id. ¶ 17 at 12-13.) The hearing officer further concluded that D.B.'s initial placement in the BSC class at Thomas did not violate D.B.'s right to placement in the least restrictive environment ("LRE") because (1) C.B. had consented to the placement; and (2) the placement found "support in appropriate ARD committee findings and the recommendations of the public and private doctors and treatment personnel who have worked with D.B. over the years." ( Id. ¶ 1 at 6-7.) He further determined that ABC East would be an appropriate placement for D.B. ( Id. ¶ 17 at 12-13.)
Under 19 TEX. ADMIN. CODE § 89.1055(e), the following factors shall be considered and, when needed, addressed in the IEP for students with autism/pervasive developmental disorders: (1) extended educational programming; (2) daily schedules reflecting minimal unstructured time; (3) in-home training or viable alternatives; (4) prioritized behavioral objectives; (5) prevocational and vocational needs of students 12 years of age or older; (6) parent training; and (7) suitable staff-to-students ratio.
With respect to D.B.'s education program at Thomas, the hearing officer held that although HISD had failed to implement appropriately drawn IEPs for counseling and behavior, D.B. did not suffer a loss of educational opportunity. As such, D.B. was not denied FAPE despite the "technical violation[s]" of the IDEA. ( Id. at 15.) D.B. was awarded 36 compensatory hours of counseling to remedy HISD's failure to adequately prepare or implement these IEPs. ( Id. at 15-16.) Based on the credibility of the HISD witnesses, the hearing officer found that no HISD personnel had physically or verbally abused D.B. (Final Decision ¶ 4, Admin. R. vol. I at 7.) In closing, the hearing officer denied D.B.'s request for reimbursement and rejected D.B.'s attempts to reopen the litigation to cover "extra grievances" that apparently occurred after D.B. filed for a due process hearing. ( Id. at 16-17.)
On February 2, 2006, D.B. filed suit in this court, claiming that the hearing officer "ignored the facts establishing the physical violence against DB" as well as "hazing and abuse he suffered because of his disability"; "ignored the evidence" of HISD's failure to properly diagnose DB; and, finally, "misinterpreted the evidence and relevant progress data demonstrating the failure to implement an appropriate program and placement for DB and lack of progress." (Pl.'s First Am. Compl. ¶ 5.2, Doc. 16.) D.B. also asserts an independent cause of action against TEA alleging that the hearing officer fell asleep during the due process hearing, thereby denying D.B. a fair and impartial hearing. ( Id.) HISD and TEA have moved for summary judgment on all claims asserted.
IV. ANALYSIS
(A) Applying Adam J. to the facts of this case, the court finds that the lack of a behavior IEP resulted in the loss of an educational opportunity and, consequently, to a denial of a FAPE.
The hearing officer determined that D.B.'s counseling and behavior IEPs did not meet IDEA requirements and were not properly implemented by D.B.'s counselors and teachers during the 2004-2005 school year. ( See Final Decision ¶ 18, Admin. R. vol. I at 13.) Nevertheless, he concluded that D.B. did not suffer a loss of an educational opportunity and was not, therefore, denied FAPE. ( Id. at 15.) HISD has not appealed the portion of the hearing officer's decision regarding the procedural inadequacies in D.B.'s 2004-2005 IEPs. Accordingly, the court examines only the more narrow issue of whether these procedural violations resulted in a loss of educational opportunity. See Adam J., 328 F.3d at 811-12 (holding that a procedural violation may deny FAPE as a matter of law if coupled with a loss of educational opportunity) (quoting Buser by Buser v. Corpus Christi Indep. Sch., 51 F.3d 490, 493 (5th Cir. 1995)). The court finds that these violations did result in a loss of an educational opportunity and, consequently, vacates those portions of the Final Decision holding otherwise.
Although HISD denies that such procedural deficiencies exist, the issue is not properly preserved before this court. Even if it were, the record supports the hearing officer's finding that HISD did not comply with the procedural requirements of the IDEA.
The hearing officer's decision does not adequately address whether D.B. suffered a loss of educational opportunity. The hearing officer mistakenly conflates loss of educational opportunity with active parental participation in the IEP formulation process. ( See Final Decision n. 6, Admin. R. vol. I at 15.) In Adam J., the Fifth Circuit examined alleged procedural violations in a student's IEP and found that the student had "not established that any procedural deficiency resulted in a loss of educational opportunity or infringed his parents' opportunity to participate in the IEP process." 328 F.3d at 812 (citing W.G. v. Bd. of Trustees, 960 F.2d 1479, 1484 (9th Cir. 1992)) (emphasis added). As Adam J. makes clear, parental participation and "lost educational opportunity" are two related, but ultimately separate, inquires.
The contours of "lost educational opportunity" are not well-defined. In this case, it bears reiterating that D.B. qualified for special education because of behavior. He was moved three times in as many years because of behavior. The proposed 2005-2006 IEP placed D.B. in a different, more restrictive environment because of behavior. Yet, the last behavior IEP for D.B. was drafted 2 years before the due process hearing. For two years, D.B. had no adequate behavior goals or objectives, and no identifiable basis to measure behavioral progress during his sixth-grade year. When assessed in conjunction with the evidence of D.B.'s academic decline, the loss of educational opportunity begins to emerge.
Because of D.B.'s many evaluations over the years, a wealth of objective data has been accumulated to aid the court in determining his academic progress, or lack thereof. For example, D.B. was tested with the Woodcock-Johnson III Tests of Achievement ("Woodcock-Johnson III") in both 2002 and 2005. The court can compare D.B.'s progress by examining these results side by side:
The Standard Score ("SS") compares the student's performance with that of other children at the same age or grade level. The average SS is 100.
The Grade Equivalency ("GE") describes student performance in terms of the statistical performance of an average student at a given grade level. The whole number represents the grade, and the decimal number represents the month within that grade. The GE was not reported on the 2002 test on record. Shaded portions represent unavailable data.
The Age Equivalency ("AE") is a measure of a person's ability, skill, or knowledge, expressed in terms of the age at which the average person attains that level of performance. The whole number represents the age, and the decimal number represents the additional months. The norms on the 2005 test were based on an age of 9.8 (i.e., 9 years, 8 months).
The AE norms on the 2005 test were based on the age of 12.1 (i.e., 12 years, 1 month).
The hearing officer did not address or compare any of these tests; instead, he relied exclusively on Crossman's interpretation of the Woodcock-Johnson III results and D.B.'s passing grades. (Final Decision ¶ 19, Admin. R. at 14.) With respect to the decline in D.B.'s Standard Score on the Woodcock-Johnson III, Crossman testified that it is normal for a child with a disability to show a drop in the standard scores over time. (Hr'g Tr. 727.) Crossman stated that age and grade equivalency scores are therefore a better estimate of progress. ( Id. at 728.) Because no grade equivalency score was reported on the 2002 Woodcock-Johnson III report, Crossman compared D.B.'s age equivalency scores. ( Id. at 729.) She claimed that the increase in D.B.'s age equivalency scores on the Woodcock-Johnson III indicates that D.B. made academic progress. ( Id. at 730.) She concluded "based on the test scores and [D.B.'s] grades" that D.B. made academic progress. ( Id. at 732.) The court disagrees because (1) there are trends in the Woodcock-Johnson III results that do not indicate progress; and, more importantly, (2) this interpretation of the results does not take into account the other objective data, which demonstrates a stark academic decline over three years.
With respect to the Woodcock-Johnson III results, D.B. was at or exceeded the age equivalency level in seven out of twenty-four subtests in 2002. This number declined to five out of twenty-seven subtests in 2005. The time span between the two tests is almost two and one-half years; yet, on average, D.B.'s age equivalency increases only half that amount. Moreover, his age equivalency level decreased in several areas, including Listening Comprehension, Understanding Directions, and Calculation. In other words, D.B. was functioning on a higher age level in fourth grade than he was two years later in the sixth grade. Thus, even assessed in isolation, the Woodcock-Johnson III results do not provide a strong basis for the conclusion that D.B. made academic progress.
The Woodcock-Johnson III results should be considered with the other objective evidence of academic achievement. D.B.'s Stanford test results, which provide a more complete picture of progress over time, also demonstrate a disturbing downward trend. Although D.B. remained at or exceedingly above his grade level equivalency on the fourth and fifth-grade administrations of the test, he fell dramatically below grade level in the 2005 administration. Further, D.B.'s modest progress on the Stanford reading tests is undermined when compared to earlier reading scores on the WRMT — R/NU, which reflect superior achievement in important aspects of reading ability. Not only did D.B.'s academic achievement fail to progress, it also significantly declined during his time within the more restrictive behavior classes at HISD. When coupled with the lack of a behavior IEP, the fact that D.B. had passing grades and showed de minimis age progression on the Woodcock-Johnson III is far outweighed by the lack of progress and regression in many of these same academic areas tested by other objective means. See, e.g., Bobby R., 200 F.3d at 349 (affirming the district court's use of objective data to determine whether the school district conferred an educational benefit to the student). Here, the lack of an appropriate behavior IEP has interfered with D.B.'s ability to achieve academic success. Such interference resulted in the loss of educational opportunity and, therefore, in a denial of FAPE.
The court notes that the Stanford tests did include GE scores that can be adequately compared over time. The argument regarding the impact of mood on D.B.'s performance is undermined by the relative consistency of his performance in subjects on which he historically scored both well and poorly. For example, D.B.'s spelling scores have typically been a strength; even on the 2005 test, his spelling score remained strong (and well-above average) despite having declined steadily over his three years within the HISD. Thus, the court finds the Stanford tests an accurate measure of D.B.'s progress over time.
(B) Alternatively, the 2004-2005 IEP does not meet the Cypress-Fairbanks standards, which results in a denial of FAPE.
As previously stated, the four factors used to measure whether an IEP is reasonably calculated to provide a meaningful educational benefit under the IDEA include: (1) whether the program is individualized on the basis of the student's assessment and performance; (2) whether the program is administered in the least restrictive environment ("LRE"); (3) whether the services are provided in a coordinated and collaborative manner by the key "stakeholders"; and (4) whether positive academic and non-academic benefits are demonstrated. Cypress-Fairbanks, 118 F.3d at 253; Bobby R., 200 F.3d at 347-48.
The reasoning underlying Part A of the court's analysis applies with equal force to the issue of whether the 2004-2005 IEP was individualized on the basis of D.B.'s assessment and performance. The lack of a behavior IEP undercuts HISD's arguments that it provided D.B. with an individualized program. Without identifiable behavior goals and objectives, the ARD committee members did not have an adequate basis for determining D.B.'s behavioral progress in meeting those goals or which behavioral interventions worked and which did not. The academic IEPs provided for D.B.'s 2004-2005 year do not satisfy his behavioral needs and cannot, alone, be used to measure the individuality of D.B.'s program. Thus, the court finds that D.B.'s 2004-2005 IEP was not individualized based on D.B.'s behavioral needs and negatively impacted D.B.'s academic performance.
The IDEA requires that a student be educated in the least restrictive environment appropriate to meet his needs. 20 U.S.C. § 1421(a)(5)(B). The court agrees with the hearing officer that a BSC classroom was the LRE for D.B. D.B. argues that a BSC placement was inappropriate because it was designed for students with emotional disturbances rather than autism. (Pl.'s Resp. ¶ 8.4, Doc. 41.) However, the IDEA does not require that children be classified by their disability so long as each eligible child is regarded as a child with a disability under the Act. 34 C.F.R. § 300.125(d). It is undisputed that D.B. was eligible for special education services, notwithstanding his diagnostic label. Moreover, Plaintiff's argument assumes that D.B. could only be diagnosed as autistic. D.B.'s own mental health expert, on the other hand, testified that mood disorders and other psychological disorders can occur simultaneously. ( See Hr'g Tr. 94-95 (Lewis testimony regarding treating comorbid disorders).) Indeed, the very fact that all the mental health professionals seem to disagree on D.B.'s diagnosis suggests that D.B. is suffering from multiple disorders. Failure to identify (or agree with) a particular disorder is not a per se denial of a FAPE as long as individualized services are being provided.
Regardless of the specific disability, each qualified child is entitled to receive "specialized instruction and related services which are individually designed to provide educational benefit." Cypress-Fairbanks, 118 F.3d at 248 (quoting Rowley, 458 U.S. at 201). The critical issue, therefore, is whether HISD individually addressed D.B.'s behaviors and provided tailored instruction accordingly. As discussed above, the court finds that D.B.'s behaviors were not individually addressed. Considering the absence of an appropriately individualized IEP for 2004-2005, the movement of D.B. to a more restrictive BSC placement in 2005-2006 may have been unwarranted; however, the initial placement of D.B. in the Thomas BSC did not violate the IDEA's requirement that a special education student be educated in the least restrictive environment.
Neither of the final Cypress-Fairbank factors favors HISD. To demonstrate lack of coordination among the key "stakeholders," a party must "show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP." Bobby R., 200 F.3d at 349. Assuming that the 2003 behavior IEP was properly incorporated into D.B.'s 2004-2005 IEP, the hearing officer found that "D.B.'s teachers and counselors in the 2004-2005 school year were, at least for the most part, unfamiliar with these I.E.P.'s from past years and have not been following them in planning D.B.'s programs or reporting D.B.'s performance under these plans to his parents." (Final Decision ¶ 18, Admin. R. vol. I at 13.) The court finds this failure to be more than de minimis. As D.B.'s special education needs required behavior interventions and modifications, the coordinated implementation of a behavior IEP would have been not only "significant," but critical.
Finally, positive academic and non-academic benefits were not demonstrated for the 2004-2005 school year. The hearing officer relied exclusively on the testimony of Dr. Crossman to conclude that "D.B. has been making educational progress and receiving an educational benefit from HISD that meets the Rowley standard." (Final Decision ¶ 19, Admin. R. vol. I at 14.) As detailed in Section A, supra, the entire academic record does not support either her conclusion or the hearing officer's reliance thereon. While it is not necessary for a student to improve in every area to obtain an educational benefit from his IEP, see Bobby R., 200 F.3d at 350, or for a school district to "cure" a disability, see Daniel R.R., 874 F.2d at 1047, the objective evidence in this case suggests that D.B. did not progress academically. Rather, D.B.'s academic performance declined over time in significant correlation with the lack of an individualized plan to address the behaviors that interfered with his learning. In consideration of all the Cypress-Fairbanks standards, the court concludes that D.B.'s 2004-2005 IEP was not reasonably calculated to provide meaningful educational benefit for D.B.
(C) Remedies for the 2004-2005 denial of FAPE.
Subsequent to the hearing officer's decision, the ARD committee reconvened to address the autism supplement and to reexamine its recommendation that D.B. be moved to ABC East. The ARD committee recommended a new IEP and proposed that D.B. remain at Thomas Middle School. C.B. rejected the committee's offer and unilaterally placed D.B. in a private placement at River Oaks Academy. Plaintiff seeks reimbursement for these costs. A reviewing court may, in the exercise of the equitable authority granted to it under the IDEA, order public school authorities to reimburse parents or guardians of a disabled child for their expenditures on private schooling when they unilaterally remove the child from public education and place the child in private schooling. Cypress-Fairbanks, 118 F.3d at 248; see also School Comm. of Town Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 369 (1985). Such reimbursement is available only if the parents or guardians establish that (1) an IEP calling for placement in a public school was inappropriate under the IDEA, and (2) the private school placement by the parents was proper under the Act. Burlington, 471 U.S. at 370. Nevertheless, the court's authority to order such reimbursement is constrained by the strict administrative exhaustion requirement contained within the IDEA. See 20 U.S.C. § 1415( l) (stating that before initiating a civil suit in federal court, a plaintiff must first exhaust his administrative remedies). Here, D.B. was not removed from public school setting until after a new IEP had been proposed. This IEP has not been subjected to an impartial due process hearing. Nor has Plaintiff demonstrated that such a challenge would be futile or inadequate. See Gardner v. School Bd. Caddo Parish, 958 F.2d 108, 111 (5th Cir. 1992). Plaintiff also fails to satisfy the second Burlington factor. There is no evidence that a public school could not adequately serve D.B.'s special education needs with an adequate behavior education plan. Accordingly, reimbursement for the unilateral placement of D.B. at a private facility is not appropriate.
The remaining issue, therefore, is what type of remedy would adequately compensate D.B. for the denial of FAPE during the 2004-2005 school year. The court finds that an additional 36 hours of compensatory education in social training equitably address the denial of FAPE in this case. The denial of FAPE turned primarily on an the inadequacy of D.B.'s behavior IEP and the consequential impact on D.B.'s educational opportunities. It is equitable, therefore, to require HISD to provide compensatory services for the lack of coordinated and focused social training that D.B. should have received in his behavior services class. Like the compensatory hours in counseling, these additional 36 hours of social training represent one hour per week of a typical school year.
(D) D.B.'s remaining contentions are without merit.
1. Summary Judgment Standard
A party moving for summary judgment must inform the court of the motion's basis and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003). All reasonable inferences must be drawn in favor of the non-moving party. Matsushita Electric Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Nevertheless, the non-movant must "go beyond the pleadings and by [its] own affidavits or by depositions, answers to interrogatories and admissions on file, designate specific facts that show there is a genuine issue for trial." Webb v. Cardiothoracic Surgery Assoc. of North Texas, P.A., 139 F.3d 532, 536 (5th Cir. 1998). Unsubstantiated and subjective beliefs and conclusory allegations and opinions of fact are not competent summary judgment evidence. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998); Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992).
2. Defendants are entitled to summary judgment on D.B.'s claim that he was denied an impartial due process hearing.
D.B. claims the hearing officer slept through the due process hearing. A thorough review of the due process hearing transcript reveals that D.B.'s charge is baseless. The hearing officer actively engaged in the entire proceeding: he asked pertinent questions; he followed along with exhibits; and he resolved objections. D.B. did not object to the alleged napping at the hearing. (Graff Aff. Doc. 35 Ex. 2.) Nor has Plaintiff directed the court's attention to anything in the record suggesting that the hearing officer was not paying attention. Indeed, there is no such evidence. Accordingly, the court grants Defendants' motions for summary judgment on this claim.
3. The hearing officer did not ignore D.B.'s allegations of abuse.
Contrary to D.B.'s representations, the hearing officer made specific findings of fact concerning D.B.'s allegations of abuse. The hearing officer examined each incident and, based on the credibility of the school personnel involved, concluded that D.B. was not abused at Thomas during his sixth-grade year. The hearing officer, who hears live testimony and can observe witness demeanor, is in the best position to determine issues of credibility. See Carlisle Area Sch. v. Scott P. by through Bess P., 62 F.3d 520, 528-29 (3d Cir. 1995); see also Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 889 (9th Cir. 2001). D.B. has not identified any non-testimonial evidence to support his allegations of abuse, and his allegation that the hearing officer ignored the evidence of abuse is no more than an attempt to circumvent the hearing officer's credibility determinations. As such, the court grants HISD's motion for summary judgment on this issue.
4. Defendants are entitled to summary judgment on D.B.'s non-IDEA claims.
In addition to D.B.'s claims for relief under the IDEA, Plaintiff asserts ADA, Section 504, and Section 1983 claims against HISD and ADA and Section 504 claims against the TEA. (Pl.'s Am. Compl. ¶ 1.1, Doc. 16.) The IDEA provides, in relevant part:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [ 42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [ 29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.20 U.S.C. 1415( l). Plaintiff has not, however, identified what independent "rights, procedures, or remedies" he seeks. D.B. does not address the merits of these claims in either his amended complaint or his response to Defendants' motion for summary judgment. Indeed, with the exception of paragraph 1.1 of D.B.'s amended complaint, these claims are never mentioned again. The gravamen of Plaintiff's complaint is that Defendants violated the IDEA and denied D.B. FAPE. Moreover, Section 1983 liability predicated on violations of the IDEA has been found by several courts to be precluded. Padilla v School Dist. No 1, 233 F.3d 1268, 1272-74 (10th Cir. 2000); Sellers by Sellers v School Bd, 141 F.3d 524, 529-30 (4th Cir. 1998); Diaz-Fonseca v Puerto Rico, 451 F.3d 13, 28-29 (1st Cir. 2006); see also Pedraza v. Alameda Unified Sch. Dist., No. C 05-04977, 2007 U.S. Dist. LEXIS 26541, at *22-25 (N.D. Cal. March 27, 2007). Accordingly, the court grants Defendants' motions for summary judgement on D.B.'s ADA, Section 504, and Section 1983 claims.
5. Defendants did not violate the No Child Left Behind Act
D.B.'s final contention is that the staff at Thomas were not "highly qualified" as required under the No Child Left Behind Act ("NCLB"), 20 U.S.C. § 6301 et seq. Under the NCLB, "highly qualified" is a specifically defined term that involves certification and/or credentialing requirements. See 20 U.S.C. § 7801(23). The administrative record is void of any evidence that HISD personnel were not properly certified or credentialed. As such, the court grants Defendants summary judgment on this final claim.
V. CONCLUSION
A fundamental principle underlying the IDEA is that a special education plan be individually tailored to meet the needs of the special education student. When the special education needs are based on behavior, an individualized behavior plan is integral to providing a student with FAPE. This conclusion is unintentionally underscored by HISD's submission of a video (Doc. 32), which records D.B. in the midst of an aggressive outburst at Thomas. Starkly absent from the video is any response or intervention by the Thomas personnel. Videotaping aggressive behavior is not an adequate plan. D.B. lacked an appropriate behavior plan in his sixth-grade year. He did not receive adequate social skills training. As measured by the objective data, he academically regressed. This is not a free appropriate public education.
Accordingly, it is hereby
ORDERED that HISD's motion for summary judgment (Doc. 33) is GRANTED-IN-PART and DENIED-IN-PART. The court will permit HISDten (10) days from entry of this order to respond to the court's sua sponte grant of partial summary judgment in Plaintiff's favor on the issue of whether HISD provided D.B. with a FAPE during the 2004-2005 school year. It is further
ORDERED that TEA's motion for summary judgment (Doc. 35) is GRANTED;