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William V. v. Copperas Cove Independent School District

United States District Court, W.D. Texas, Waco Division

October 22, 2019

WILLIAM V. AND JENNY V., AS PARENTS / GUARDIANS / NEXT FRIENDS OF W.V., A MINOR INDIVIDUAL WITH A DISABILITY, Plaintiffs,
v.
COPPERAS COVE INDEPENDENT SCHOOL DISTRICT, Defendant.

          MEMORANDUM AND ORDER

          ALAN D ALBRIGHT UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         Minor 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].[1] The District accepted the prior school's program when W.V. entered in September 2015 and began providing him Speech Therapy. Id.

         On 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.

         Plaintiff 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. at 15-16.

         On September 6, 2016, a TPRI[2] 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.

         In 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.

         On July 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.

         A 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 standard.

         II.LEGAL STANDARD

         The 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 protected.

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.

         A “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).

         In the 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).

         The 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, J.).

         Plaintiffs 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.

         Alternatively, 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 ...


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