United States District Court, W.D. Texas, Waco Division
WILLIAM V. AND JENNY V., AS PARENTS / GUARDIANS / NEXT FRIENDS OF W.V., A MINOR INDIVIDUAL WITH A DISABILITY, Plaintiffs,
COPPERAS COVE INDEPENDENT SCHOOL DISTRICT, Defendant.
MEMORANDUM AND ORDER
ALBRIGHT UNITED STATES DISTRICT JUDGE.
the Court are the Motion for Judgment on the Administrative
Record or Alternative Motion for Summary Judgment filed by
Copperas Cove Independent School District (the
“District”), Def.'s Mot. Summ. J. [ECF No.
69], Motion for Judgment on the Administrative Record or
Alternatively Motion for Summary Judgment filed by William V.
and Jenny V., Pls.' Mot. Summ. J. [ECF No. 70], Response
to Summary Judgment filed by Plaintiffs, Pls.' Summ. J.
Resp. [ECF No. 71], Response to Summary Judgment filed by
Defendant, Def.'s Summ. J. Resp. [ECF No. 72], Objections
to Summary Judgment Motion filed by Defendant, Def.'s
Objs. [ECF No. 73], Response to Objections filed by
Plaintiffs, Pls.' Objs. Resp. [ECF No. 74], Reply in
Support of Objections filed by Defendant, Def.'s Objs.
Reply [ECF No. 76], Reply in Support of Summary Judgment
filed by Plaintiffs, Pls.' Summ. J. Reply [ECF No. 78],
Reply in Support of Summary Judgment filed by Defendants,
Def.'s Summ. J. Reply [ECF No. 79], Motion to Strike
Amended Complaint filed by Defendant, Def.'s Mot. Strike
[ECF No. 84], Response to Motion to Strike filed by
Plaintiffs, Pls.' Strike Resp. [ECF No. 86], Reply in
Support of Motion to Strike filed by Defendant, Def.'s
Strike Reply [ECF No. 90], Motion for Leave to File
Supplemental Motion for Summary Judgment filed by Defendant,
Def.'s Mot. Supp. [ECF No. 87], Response to Motion to
Supplement filed by Plaintiffs, Pls.' Supp. Resp. [ECF
No. 89], and Reply in Support of Motion to Supplement filed
by Defendant, Def.'s Supp. Reply [ECF No. 90]. For the
reasons that follow, the Court ORDERS
Defendant's Motion for Judgment be
GRANTED, Plaintiffs' Motion be
DENIED, and Defendant's Objections,
Motion to Supplement, and Motion to Strike be
DENIED as moot.
W.V. is a fourth-grader with dyslexia and
documented-difficulty in reading and articulation. Pls.'
First Am. Compl. at 6 [ECF No. 2]. Before entering the
District as a first grader, W.V.'s prior school developed
a Speech Impairment (“SI”) program for W.V. due
to articulation errors inconsistent with W.V.'s age and
development. Administrative Record (“A.R.”) at 8
[ECF No. 9-3]. The District accepted the prior
school's program when W.V. entered in September 2015 and
began providing him Speech Therapy. Id.
April 18, 2016, Plaintiff Jenny V. requested the District
evaluate W.V. for a Specific Learning Disability
(“SLD”). Id. at 12. A District
representative responded W.V. would continue to receive the
benefits set by the District and its Admission, Review, and
Dismissal Committee's (“ARDC”) program.
Id. The District formally responded on April 28,
2016 with a Notice of Action that W.V. would not be tested
for an SLD but would be tested for dyslexia. A.R. at 12.
Jenny V. met with the District's Special Education
Director on April 29, 2016 to request SLD testing in addition
to dyslexia testing. A.R. at 13. The Director concluded the
data only supported dyslexia screening. Id. at
13-14. On May 31, 2016, the ARDC stated W.V. would receive
dyslexia services daily for the next year, would be given
extra time to complete assignments, receive additional
instruction as needed, receive on-task reminders, and have
materials read to him, among other assistance. Id.
September 6, 2016, a TPRI test administered to W.V. resulted in a
“still developing” score in all areas. A.R. at
17-18. W.V. also began receiving assistance under the Wilson
Reading System to improve reading accuracy and spelling.
Id. at 19. On September 12, 2016 the ARDC reconvened
to conduct a review of W.V.'s performance. Id.
The ARDC determined W.V. should undergo a Full Individual
Evaluation (“FIE”) to reassess his needs and
potential for Special Education services, though it did find
based on an October 2015 screening that available assistive
technology was sufficient to accommodate W.V.'s needs.
A.R. at 18-19. The FIE was completed November 16, 2016, with
the following relevant results:
• W.V. no longer met eligibility for a SI;
• The GFTA-2 Test, as used by a Speech Language
Pathologist (“SLP”) employed by the District,
scored W.V. in the average standard range with at least 80%
accuracy in verbal exchanges;
• The District's SLP recommended W.V. no longer
receive Speech Therapy services;
• W.V. no longer met eligibility for a SLD;
• A Cross-Battery Assessment System
(“X-BASS” or “Cross-Battery”) applied
by a District-employed Educational Diagnostician showed none
of W.V.'s global cognitive abilities (i.e. verbal
comprehension, working memory) was below average range (the
identifier of a student with a SLD);
• The Cross Battery applied by the District, using tests
WJ-IV ACH, WJ-IV OL, and KTEA-3, found average or
above-average scores for W.V. in all but reading; and,
• W.V.'s reading scores were consistent with his
dyslexia and showed improvement concurrent with the
District's provided dyslexia services.
A.R. at 21-24.
January 2017, Plaintiffs requested a due process hearing
through the Texas Education Agency. Id. at 4.
Plaintiffs complained the District: (1) denied W.V. a free
appropriate public education (“FAPE”) by
violating its child find duty; (2) failed to comply with
procedural requirements; (3) conducted an inappropriate FIE;
and (4) developed an Individualized Education Program
(“IEP”) that did not meet W.V.'s unique
needs. Id. at 3. A hearing was held on May 30-31,
2017 before a Special Education Hearing Officer
(“SEHO”). Id. at 4. The SEHO rendered a
decision on June 30, 2017 finding in favor of the District on
all counts. Id. at 49.
28, 2017, Plaintiff Jenny V., joined by William V., sued the
District on behalf of W.V., appealing the decision of the
SEHO. Pls.' Compl. at 1. Plaintiffs challenge the
following findings by the SEHO: (1) Plaintiffs did not prove
the District violated the Individuals with Disabilities Act
(“IDEA”); (2) the District's FIE was
appropriate; (3) the District properly identified, evaluated,
and placed W.V.; (4) the District did not commit any
procedural violations; and (5) Plaintiffs were not entitled
to an individualized evaluation at District expense. A.R. at
3- 4. The parties filed cross-motions for summary judgment on
May 31, 2018, each seeking a ruling on the administrative
record. Def.'s Mot. Summ. J. at 1; Pls.' Mot. Summ.
J. at 1. Defendant also filed, on June 14, 2018, an objection
to portions of Plaintiffs' Motion regarding a Department
of Education report, allegations of impropriety by a district
employee, transportation costs as damages, conflicts between
W.V. and other students, and private school costs. Def.'s
Objs. ¶¶ 1- 5. Over the following months, the
parties fully briefed these disputes.
Report and Recommendation was filed by the Magistrate Judge
on October 15, 2018, recommending that the Court grant in
full Defendant Copperas Cove Independent School
District's Motion for Judgment on the Administrative
Record or, in the Alternative, Motion for Summary Judgment
and deny Plaintiffs' opposing Motion for Judgment on the
Administrative Record or, in the Alternative, Motion for
Summary Judgment. On December 10, 2018, this Court entered an
ORDER accepting and adopting the Report and
Recommendation in its entirety except as to the Magistrate
Judge's findings that the District did not procedurally
violate the IDEA because W.V. did not qualify as a student
with an SLD. On appeal to the United States Court of Appeals
for the Fifth Circuit, the Fifth Circuit
VACATED and REMANDED the
case for reconsideration, in light of the appropriate
Individuals with Disabilities Education Act (IDEA) can be
found in Title 20, Chapter 33 of the United States Code. The
purpose of the IDEA is:
to ensure that all children with disabilities have available
to them a free appropriate public education . . . designed to
meet their unique needs and to ensure that the rights of
children with disabilities and parents of such children are
20 U.S.C. § 1400(d)(1)(A)-(B). The IDEA compels those
states receiving federal funding to educate children with
disabilities to the maximum extent appropriate with children
who are not disabled, 20 U.S.C.S. § 1412(a)(5), 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). In exchange
for such funds, States pledge to ensure a free appropriate
public education (FAPE) is available to all children with
disabilities residing in the State between the ages of 3 and
21. 20 U.S.C.S. § 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.
“child with a disability” means a child who has a
disability, and because of the disability needs special
education and related services. 20 U.S.C.S. §
1401(3)(A). Thus, to qualify for special education, a student
(1) must have one or more of the disabilities recognized by
the IDEA and (2) need special education services.
Id. Once a school accepts that one of its students
is eligible under the IDEA, the school must develop an
individualized educational program (IEP) for that student.
Dall. Indep. Sch. Dist. v. Woody, 865 F.3d 303, 306
(5th Cir. 2017). The IEP is a written statement, prepared at
a meeting of qualified representatives of the local
educational agency, the child's teacher, parent(s), and
where appropriate, the child. 20 U.S.C. § 1414(d). To
ensure that each student receives a FAPE, school districts
must collaborate with parents to develop and implement an IEP
that is “reasonably calculated to enable the child to
receive educational benefits.” 20 U.S.C. §
1400(d)(1)(A); R.H v. Plano Indep. School Dist., 607
F.3d 1003, 1008 (5th Cir. 2010).
event an IEP is necessary, courts take a two-step approach in
reviewing its adequacy: (1) courts first evaluate whether the
school district complied with the procedural requirements of
the IDEA; and (2) then evaluate whether the IEP is reasonably
calculated to enable the student to receive educational
benefits. Klein Indep. School Dist. v Hovem, 690
F.3d 390, 396 (5th Cir. 2012) (citing Bd. Of Educ. v.
Rowley, 458 U.S. 176, 206-07 (1982)). Although the FAPE
that the IDEA demands of the states need not be the best
possible one, nor one that will maximize the child's
educational potential, it must be an education that is
specifically designed to meet the child's unique needs,
supported by services that will permit him “to
benefit” from the instruction. Richard R., 567
F.Supp.2d at 922. To determine whether the IEP is
“reasonably calculated to enable the child to receive
educational benefits, ” courts must evaluate four
factors: (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; (3) whether the services are provided in a
coordinated and collaborative manner by the key
“stakeholders”; and (4) whether there was
positive academic and non-academic benefits demonstrated.
Cypress-Fairbanks Indep. School Dist. v. Michael F.,
118 F.3d 245, 248, 253 (5th Cir. 1997).
judiciary's role under the IDEA is purposefully limited.
Richard R., 567 F.Supp.2d at 922. Therefore, while a
federal district court's review of a state hearing
officer's decision is virtually de novo, this by no means
represents an invitation to the courts to substitute their
own notions of sound educational policy for those of the
school authorities which they review. Id. Instead,
the district court should accord due weight to the state
hearing officer's findings. Id. Operationally,
the “due weight” standard calls upon the district
court to receive the record of the administrative
proceedings, to take additional evidence at the request of
any party, and ultimately, to reach an independent decision
based on a preponderance of the evidence. Id.
Accordingly, the Court uses the two-part inquiry, taking care
not to substitute its own notion of sound educational policy.
Richard R., 567 F.Supp.2d at 926-27. First, the
Court will consider whether the state complied with the
procedures as set forth in the IDEA. Secondly, the Court will
determine if the District's actions were
“reasonably calculated” to enable the child to
receive educational benefits. Id. Under this
two-part test, summary judgment effectively asks the Court to
decide the case based on the administrative record. E.G.
v. Northside Indep. Sch. Dist., No. SA:12-CA-949-FB,
2014 WL 12537177, at *5 (W.D. Tex. March 31, 2014) (Biery,
argue they should be granted summary judgment for six
independent reasons. Pls.' Mot. Summ. J. at 1-20. First,
they argue the District violated the IDEA by unduly delaying
W.V.'s assessment for a SLD. Id. at 3. Second,
they argue the District violated the IDEA by finding W.V. did
not qualify as a student with a SLD. Id. at 5.
Third, they argue the District violated the IDEA by finding
W.V. did not qualify as a student with a Speech and Language
Impairment. Id. at 9. Fourth, they argue the
District violated the IDEA by failing to evaluate whether
assistive technology was needed for W.V.'s FAPE.
Id. at 13. Fifth, they argue the District violated
the IDEA by implementing the Wilson Reading Program because
the program did not demonstrate positive results.
Id. at 14. Lastly, Plaintiff's argue the
District violated the IDEA by implementing the Wilson Reading
Program because the program was not research-based. Pls.'
Mot. Summ. J. at 15.
the District argues it is entitled to summary judgment for
five reasons. Def.'s Mot. Summ. J. at 7. First, it argues
it had no reason to suspect W.V. suffered from a SLD.
Id. at 7-8. Second, it argues the methods it used to
assess SLD eligibility were appropriate. Id. at
10-11. Third, it argues any alleged procedural violation of
the IDEA did not lead to the denial of W.V.'s FAPE or
Plaintiffs' opportunity to participate. Id. at
14-15. Fourth, it argues the Court may not consider
Plaintiffs' purported evidentiary ...