United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
parties' cross-motions for summary judgment stem from a
dispute between student and school district over a Texas
Education Agency (“TEA”) Due Process Hearing
Decision (“The Decision”). Ashley requested the
hearing to determine whether GISD failed to provide her with
a free, appropriate public education (“FAPE”)
from 2009 to 2015 as required by the Individuals with
Disabilities Education Act
(“IDEA”). The Decision found that although some of
Ashley's claims for relief were barred by a one-year
statute of limitations, GISD's continuing failure to
evaluate Ashley for special education services entitled her
to compensatory services and equitable relief.
then brought this suit to assert her status as a prevailing
party who is entitled to attorneys' fees. The
cross-motions for summary judgment require the Court to
decide the following issues based on the administrative
record: 1) whether the Decision correctly granted Ashley
relief; 2) whether Ashley is a prevailing party; and 3)
whether the attorneys' fees sought are reasonable.
Statement of the Undisputed Facts
undisputed facts are as follows. Ashley was born in 1996 and
has exhibited troubling behavior since she was in preschool.
These behaviors can safely be attributed to a variety of
genetic and environmental factors. In 2004, GISD identified
Ashley as a student with disabilities who was eligible for
special education services. GISD developed an Individualized
Educational Plan (“IEP”). Ashley was evaluated
annually through 2008. In 2008, Ashley's family withdrew
her from GISD after she attempted to burn another student
with a hot glue gun. Ashley began homeschooling in 2009,
which was to last for the next four years.
2013, Ashley returned to GISD, enrolling at AIM College and
Career Prep Center (“AIM”). AIM is a GISD charter
school. Ashley's AIM application stated that she had
received special education services for a disability.
Additionally, Ashley's family informed GISD upon her
return that she had received special education services in
the past. They further informed GISD that these services had
never been dismissed. Unable to locate Ashley's records,
GISD determined that she had been dismissed from special
education status and services.
started the ninth grade at AIM in August 2013. In September
2013, she was suspended for performing oral sex on two
students in a faculty restroom. She was also placed on
Disciplinary Alternative Educational Placement for two
months. She was also failing three out of her five classes.
GISD referred Ashley for Section 504 Plan (“504”)
services in November 2013. The Section 504 Committee determined
that Ashley was eligible for 504 accommodations due to PTSD,
ADHS and OCD. The Committee did not address her confirmed
diagnoses of Triple-X Disorder and depressive disorders.
Accommodations included “additional time to complete
assignments, reminders to stay on task,
“chunking” material, a quiet place to work, and,
small group testing.” Dkt. 1-2, ¶ 36. GISD did not
design or implement a behavior plan.
academic and behavioral performance improved after the fall
of 2013, and she was ultimately successful in ninth grade
(2013-14) at AIM. She began to struggle once again-both
academically and behaviorally-in tenth grade (2014-15). She
was hospitalized once again in September 2014. She was twice
caught stealing in October 2014. She scored below the 20th
percentile on multiple sections of the 2014 PSAT. She
completed less than half of the expected credits for her fall
semester (August 2014-December 2014).
response to Ashley's continuing struggles, GISD scheduled
another 504 Conference in February 2015 over protests from
Ashley's family. Ashley, now represented by counsel,
submitted a Special Education Due Process Hearing Request
letter on February 9, 2015. During a Resolution Session held
prior to the Hearing, the parties agreed that GISD would
conduct a Full Individual Evaluation (“FIE”). The
FIE, completed in April 2015, found that Ashley suffered from
poor self-esteem, and exhibited learning disabilities in the
areas of reading, math, and written expression. The FIE
concluded that Ashley was eligible for special education
services. The FIE did not assess Ashley's sensory needs.
Nor did it assess the need for post-school transition,
in-home training, parent training, sexuality education, or
Education Hearing Officer (“SEHO”) Ann Vevier
Lockwood conducted the Due Process Hearing, which concluded
in May 2015. Both Ashley and GISD were represented by
counsel. Ashley argued that GISD had denied her the right to
a FAPE from 2009 through 2015. Ashley sought the following
i. That the district be ordered to provide to the student
eligibility for special education and related services, an
appropriate IEP in the least restrictive environment, which
is a residential placement….
ii. If the district cannot or will not provide appropriate
services to the student, then the parents seek reimbursement
for the placement they assembled for the student. This would
include reimbursement for private services, evaluations and
mileage, incurred in the absence of a provision of FAPE by
the district and whether the family is entitled to have the
district fund private placement, evaluations and/or related
services going forward for the time determined by the hearing
officer to be appropriate.
iii. Compensatory educational services due to the
district's denial of FAPE in the amounts and types
determined by the hearing officer to be appropriate to
compensate the student for any violations of law the hearing
iv. Any relief that the hearing officer deems appropriate or
which is recommended by the student's experts and
Dkt. 1-1, p. 18.
SEHO released the Decision of the Hearing Officer on July 7,
2015. Dkt. 1-2. The Decision made the following conclusions
of law and fact, categorized here based on their favorability
• GISD had a continuing duty to re-evaluate Ashley when
she returned to the school district. GISD should have
recognized that a re-evaluation was overdue and identified
Ashley as a student with a disability upon her enrollment
with AIM. GISD's failure to implement an appropriate
Individualized Educational Plan (“IEP”) harmed
• Ashley met the criteria to be identified as the
following: 1) a Student with an Emotional Disturbance; 2) a
Student with Other Health Impairment; and 3) a Student with
Specific Learning Disabilities.
• Ashley is entitled to compensatory and equitable
relief for GISD's failure to timely meet its Child Find
• A one-year statute of limitations applied time-barred
all claims that arose prior to February 9, 2014.
• Ashley was not entitled to residential placement
because she had not demonstrated that such treatment
constituted the least restrictive environment as required by
• GISD was not required to reimburse Ashley for the
Independent Educational Evaluation (“IEE”) that
she had secured in preparation for the Due Process Hearing.
Reimbursement is appropriate where the parent disagrees with
the school district's recommendation. Here, GISD had not
completed its own evaluation, so there was nothing with which
• Any non-IDEA claims were dismissed for lack of
Dkt. 1-1, pp. 31-34.
21, 2015, Ashley counsel wrote to GISD. Her letter declared
that Ashley was the prevailing party and thus deserving of
attorneys' fees. The letter offered to reduce the
attorneys' fees by 15% in consideration for a timely
settlement. Dkt. 40-2. On July 31, 2015, GISD's counsel
responded, concluding that “the law supports only a
minimal award of attorneys' fees, if it supports any at
all.” Dkt. 27-1. GISD's letter further explained
that, “in the interest of collaborating to secure an
end to this litigation, I am authorized to negotiate a
settlement in which GISD would pay $10, 000 in exchange for a
full release of all existing claims, including attorney's
parties did not reach a settlement agreement. In August 2015,
Ashley instead filed a Complaint with this Court pursuant to
20 U.S.C. § 1415(i)(2)(A). Ashley's Complaint sought
to establish that she was a prevailing party in the Due
Process Decision pursuant to 20 U.S.C. § 1415(i)(3)(B).
GISD disagreed, asserting the following arguments in its
motion for summary judgment: 1) GISD did not violate the
IDEA; 2) alternatively, all relief granted by the Decision
was time-barred; 3) Ashley is not a prevailing party and thus
not entitled to recover attorneys' fees; and 4)
alternatively, the Court should limit or deny attorneys'
fees. Dkt. 27.
Complaint included affidavits from her counsel of record,
Dorene J. Philpot and Deborah Ann Heaton McElvaney regarding
attorneys' fees and costs. A Response (Dkt. 32) and Reply
(Dkt. 33) followed. Ashley also filed a motion for summary
judgment that argued against all relief sought by GISD. Dkt.
40. A Response (Dkt. 46) and Reply (Dkt. 47) followed.
Ashley's Complaint also included causes of action
pursuant to the Rehabilitation Act of 1973 (“Section
504”) and the Americans with Disabilities Act
(“ADA”). See 29 U.S.C. § 701; 42
U.S.C. § 12101. GISD filed a supplement to its motion
for summary judgment arguing against these additional causes.
Dkt. 42. However, per the parties' joint stipulation
(Dkt. 44), the Court dismissed with prejudice all claims
other than those brought under the IDEA. Dkt. 45. Finally,
Ashley filed a supplementary brief with the Court arguing
that GISD bears the burden of proof. Dkt. 49. GISD responded.
Standard of Review
Motion for Summary Judgment and the IDEA
the IDEA, a party aggrieved by an administrative decision may
sue in district court. 20 U.S.C. § 1415(i)(2)(A). The
district court shall receive the administrative record, hear
additional evidence at any party's request, and decide
based on the preponderance of the evidence. 20 U.S.C. §
1415(i)(2)(C). “If no party requests additional
evidence to be heard by the district court, a motion for
summary judgement is simply a procedural device for asking
the Court to decide the case on the basis of the
administrative record.& ...