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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 98-20546
_______________
HOUSTON INDEPENDENT SCHOOL DISTRICT,
Plaintiff-Counter Defendant-
Appellee,
VERSUS
BOBBY R.; JOYCE R.; and CAIUS R.,
Defendants-Counter Claimants-
Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
January 20, 2000
Before HIGGINBOTHAM and SMITH,
HISD to make certain changes in Caius's
Circuit Judges, and FALLON, District
education program. On appeal from the
Judge.*
TEA's decision, the district court decided in
favor of HISD. Concluding that the district
JERRY E. SMITH, Circuit Judge:
provided a free appropriate public education in
compliance with the IDEA, we affirm.
Caius R., a minor child, by and through his
parents, Bobby R. and Joyce R., initiated this
I.
action against the Houston Independent
Caius attended school in HISD for
School District ("HISD") in a claim before a
approximately seven years before being
Texas Education Agency ("TEA") hearing
removed to private school in 1997. Within
officer. The TEA determined that HISD had
HISD, he struggled from the beginning, in
not provided Caius a "free appropriate public
large part because of dyslexia. In kindergarten
education" as required by the Individuals with
and first grade, he experienced difficulties in
Disabilities Education Act, 20 U.S.C. § 1400,
phonics. Although in 1992 HISD
et seq. ("IDEA"), and the officer ordered
recommended that he repeat the first grade,
preliminary evaluations of his need for special
education indicated that he did not qualify for
these special services.
* District Judge of the Eastern District of
Louisiana, sitting by designation.

During the summer preceding the 1992-93
modified tests, and taped lectures.
school year, Caius's parents sought an
independent evaluation of his learning abilities.
Before the 1995-96 year, HISD and Caius's
After conducting a battery of tests, a
parents engaged in extensive discussions
University of Houston researcher found that
regarding the school he would attend.
Caius suffered from dyslexia and attention
Because it was determined that he learned
deficit disorder. Caius then enrolled in a
more readily when information was presented
private school for a substantial portion of the
in a multisensory fashion, his parents sought
1992-93 year. Although HISD had
placement at an HISD school that could
recommended repeating first grade, Caius was
administer an Alphabetic Phonics ("AP")
placed in a second grade class.
program. Although an alternative placement
could not be established, HISD agreed to
In March 1993, Caius returned to HISD at
provide an itinerant teacher to instruct Caius at
Mitchell Elementary and, in the fall of 1993,
Mitchell Elementary until a permanent teacher
began third grade there. After experiencing
skilled in AP could be found.
more difficulties, he was referred in December
1993 for a special education evaluation, which
Caius began the AP program in the fall of
revealed deficiencies in reading, oral language,
1995. Although his instructors changed, the
and written language skills. Pursuant to the
AP program was provided throughout the
IDEA, the HISD convened an Admission,
1995-96 school year. Nonetheless, his parents
Review, and Dismissal ("ARD") Committee in
continued to criticize HISD's implementation
January 1994 to determine the appropriate
of several modifications to the IEP.
means of addressing Caius's learning disability.
Having found that his was speech
handicapped, the ARD Committee drafted an
Individual Education Plan ("IEP") that called
for ten hours of reading and language resource
placement and one hour of speech therapy per
week. Caius continued under the January
1994 IEP during the remainder of the 1993-94
school year.
At the beginning of the 1994-95 year,
HISD placed Caius in the fourth grade. HISD
experienced some difficulties during that year
in implementing the speech therapy provision
of the IEP, so from January 18, 1995, through
May 17, 1995, a speech therapist was not on
staff at Mitchell Elementary. To compensate
Caius for the lost speech therapy, HISD
authorized extended-year services for him.
Consequently, during the summer following
the 1994-95 school year, Caius received
twenty-five hours in compensatory speech
therapy.
In the meantime, however, Caius's parents
voiced objections regarding the
implementation of his IEP. In particular, they
complained of HISD's failures to institute IEP
modifications such as highlighted texts,
2

During the spring and fall of 1996, the
motions for summary judgment, held that the
ARD Committee convened to develop an IEP
TEA had erred in its analysis of whether Caius
for Caius's sixth grade year. Under the IEP,
had indeed received a "free appropriate public
he was placed at Codwell Elementary. The
education" as required by the IDEA. The
plan included seven modifications to his
court reasoned that he had shown
educational program: modified tests, taped
improvement in most areas of study and
texts, highlighted texts, extended time for
therefore had received an educational benefit
assignments, shortened assignments, calculator
in accordance with the goals of the IDEA.
use, and taped assignments. Furthermore,
The court then granted HISD's motion for
because no teacher at Codwell was trained in
summary judgment and denied Caius's cross
AP techniques, HISD began a search for
motion for summary judgment. The court also
another AP instructor for Caius.
dismissed Caius's counterclaim for
reimbursement for the costs of the private
Despite its efforts, for two months Caius
compensatory services.
did not receive AP training. During that time,
his parents refused to accept the compensatory
II.
AP services offered by HISD. Through their
Caius challenges the determination that
complaints to HISD, they also questioned the
HISD provided him with a "free appropriate
amount of progress Caius was making under
public education" in accordance with the
the IEP and the extent to which his teachers
IDEA, 20 U.S.C. § 1400, et seq. Specifically,
were implementing the modifications to the
he points to HISD's failure to provide a
August 1996 IEP.
speech therapist for a substantial portion of the
1994-95 term, its failure to provide an AP
In October 1996, Caius's parents sought
program for approximately two months during
administrative review of the IEP. Following
the beginning of the 1996-1997 year, and its
two days of hearings in February 1997, the
general failures consistently to provide
TEA hearing officer filed written findings of
highlighted and taped texts in accordance with
fact and conclusions of law, deciding that the
the IEP.
reading and language goals set forth in Caius's
IEP's were "reasonable and calculated to
HISD responds first by acknowledging the
provide . . . an educational benefit." But she
failures summarized by Caius and by noting
also found that HISD had failed to implement,
that, as a result, there are no genuine issues of
"consistently or appropriately," an AP
material fact that would preclude summary
program, IEP modifications, or speech
judgment. HISD disagrees, however, with the
therapy. The hearing officer thus concluded
legal conclusions to be drawn from those
that HISD's failures in these areas had
failures. It argues that, rather than holding
deprived Caius of a "free appropriate public
that any failure to implement an element of an
education" under the IDEA.
IEP amounts to denial of a free appropriate
public education under the IDEA, we should
Following entry of the hearing officer's
look to the overall educational benefit received
decision, the parties failed to negotiate a new
by the child and to whether the IEP was
IEP for Caius for the 1997-98 school year. In
substantially or materially implemented.
response, his parents sought private
compensatory services during the summer of
A.
1997, and, before the start of the 1997-98
The IDEA is designed to encourage state
year, his parents withdrew him from HISD and
and local education agencies to extend services
placed him at a private school at their expense
to children that are deemed learning disabled.
and without HISD's approval.
Under the statute, to receive federal funding,
a state must establish special education and
HISD appealed the TEA hearing officer's
related services that "are provided in
decision to the district court, which, on cross
conformity with the individualized education
3

program required under section 1414(a)(5) of
court shall receive the records of the
this title." 20 U.S.C. § 1401(17)(D) (emphasis
administrative proceedings, shall hear
added). The term "individualized education
additional evidence at the request of a party,
program" is defined as
and, basing its decision on the preponderance
of the evidence, shall grant such relief as the
a written statement for each child with a
court determines is appropriate." 20 U.S.C.
disability developed in any meeting by a
§ 1415(e)(2). As additional protection for the
representative of the local educational
parents and the disabled child, "during the
agency . . . which statement shall includeSS
pendency of any proceedings conducted
pursuant to this section, unless the State or
(A) a statement of the present levels of
local educational agency and the parents or
educational performance of such child,
guardian otherwise agree, the child shall
remain in the then current educational
(B) a statement of annual goals,
placement of such child." 20 U.S.C.
including short-term instructional
§ 1415(e)(3)(A).
objectives,
The Department of Education has
(C) a statement of the specific
interpreted the IDEA to require each public
educational services to be provided to
agency to "(1) Provide special education and
such child, and the extent to which such
related services to a child with a disability in
child will be able to participate in regular
accordance with the child's IEP; and (2) Make
educational programs, . . .
a good faith effort to assist the child to achieve
the goals and objectives or benchmarks listed
(E) the projected date for initiation and
in the IEP." 34 C.F.R. § 300.350(a) (emphasis
anticipated duration of such services,
added). That interpretation provides,
and
however, that the IDEA "does not require any
agency, teacher, or other person be held
(F) appropriate objective criteria and
accountable if a child does not achieve the
evaluation procedures and schedules for
growth projected in the annual goals and
determining, on at least an annual basis,
benchmarks or objectives." Id. § 300.350(b).
whether instructional objectives are
being achieved.
B.
The "free appropriate public education"
20 U.S.C. § 1401(20).
requirement of the IDEA requires tailoring to
the unique needs of the handicapped child by
The crafting of an IEP is subject to
means of an IEP. See Board of Educ. v.
extensive procedural and substantive
Rowley, 458 U.S. 176, 181 (1992).
requirements. For instance, the IDEA
"Noticeably absent from the language of the
provides procedural safeguards that allow the
statute is any substantive standard prescribing
parents an opportunity to challenge the
the level of education to be accorded
establishment or implementation of the IEP in
handicapped children." Id. at 189. After a
an "impartial due process hearing which shall
lengthy analysis of the statute, its purposes,
be conducted by the State educational agency
and of the legislative intent with respect to the
. . . as determined by State law." 20 U.S.C.
provision of educational services to disabled
§ 1415(b)(2). In Texas, the hearing is
children, the Rowley Court held that an
conducted before the TEA.
"`appropriate education' is provided when
personalized educational services are
The IDEA also provides for civil actions
provided." Id. at 197.
and jurisdiction in federal district court
"without regard to the amount in controversy.
Accordingly, the IDEA "generates no
In any action brought under this paragraph the
additional requirement that the services so
4

provided be sufficient to maximize each child's
whether the IEP was "reasonably calculated to
potential." Id. at 198. This, the Court opined,
enable [Caius] to receive an educational
would be "further than Congress intended to
benefit."
go." Id. at 199. Instead, the IDEA is aimed at
providing disabled children "access" to a
public education, though that access must still
"be sufficient to confer some educational
benefit upon the handicapped child." Id. at
200 (emphasis added). In the end, then, "the
`basic floor of opportunity' provided by the
Act consists of access to specialized
instruction and related services which are
individually designed to provide educational
benefit to the handicapped child." Id. at 201.
Next, the Court noted that while the
determination whether children are receiving
sufficient educational benefits to satisfy the
requirements of the IDEA "presents a more
difficult problem," a court's inquiry in suits
brought under § 1415(e)(2) (as here) should
be analyzed under a two-pronged framework.
"First, has the State complied with procedures
set forth in the Act? And second, is the [IEP]
developed through the Act's procedures
reasonably calculated to enable the child to
receive educational benefits?" Id. at 206-07
(emphasis added). The Court noted that under
the second prong, "the achievement of passing
marks and advancement from grade to grade
will be one important factor in determining
educational benefit." Id. at 207 n.28.
Caius does not challenge the IEP or any
other HISD actions on the basis of the first
prong of the Rowley inquirySSthat is, he does
not assert that HISD did not comply with the
lengthy procedures prescribed by the IDEA.
And it is doubtful that such a challenge would
have any merit.1 Therefore, the issue is
1 See Decision of the Hearing Officer,Docket
No. 089-SE-1096, noting:
(...continued)
In this case, issues related to any procedural
requests in both programming and
complaints were withdrawn prior to the
placement decisions were often accepted by
beginning of the hearing. Indeed, the
the ARD Committee. The IEP's at issue
evidence showed that Caius' parents were
were the result of collaborative efforts
active participants in each and every ARD
between parents and school, and I find,
meeting and that their recommendations and
therefore, that the district did comply with
(continued...)
the procedural requirements of the IDEA.
5

III.
reviewed for clear error." Id. A party
In Cypress-Fairbanks Indep. Sch. Dist. v.
attacking the appropriateness of an IEP
Michael F., 118 F.3d 245, 247-48 (5th Cir.
established by a local educational agency bears
1997), we summarized the standard under
the burden of showing why the IEP and
Rowley. An IEP
resulting placements were inappropriate under
the IDEA. Id.
need not be the best possible one, nor
one that will maximize the child's
A.
educational potential; rather, it need
In Cypress-Fairbanks, we set forth four
only be an education that is specifically
factors that serve as an indication of whether
designed to meet the child's unique
an IEP is reasonably calculated to provide a
needs, supported by services that will
meaningful educational benefit under the
permit him "to benefit" from the
IDEA. These factors are whether
instruction. In other words, the IDEA
guarantees only a "basic floor of
(1) the program is individualized on the
opportunity" for every disabled child,
basis of the student's assessment and
consisting of "specialized instruction and
performance;
related services which are individually
designed to provide educational
(2) the program is administered in the
benefit." Nevertheless, the educational
least restrictive environment;
benefit to which the Act refers and to
which an IEP must be geared cannot be
(3) the services are provided in a
a mere modicum or de minimis; rather,
coordinated and collaborative manner by
an IEP must be "likely to produce
the key "stakeholders"; and
progress, not regression or trivial
educational advancement." In short, the
(4) positive academic and non-academic
educational benefit that an IEP is
benefits are demonstrated.
designed to achieve must be
"meaningful."
118 F.3d at 253.
(Internal citations omitted.)
Correctly, HISD argues in its brief, and the
district court noted, that only the last two of
When a district court reviews a state
these factors are seriously in question. First,
hearing officer's decision in an impartial due
Caius does not argue that the IEP was not
process hearing under the IDEA, it must
individualized in accordance with the first
receive the record of the administrative
factor; indeed, such an argument would seem
proceedings and is then required to take
unavailing where the TEA hearing officer had
additional evidence at the request of any party.
already concluded that the IEP was
20 U.S.C. § 1415(e)(2). It must accord "due
"reasonably calculated to provide Caius with a
weight" to the hearing officer's findings, see
meaningful educational benefit." Second, the
Rowley, 458 U.S. at 206, but must ultimately
"least-restrictive-environment" factor should
reach an independent decision based on a
be viewed in light of the IDEA's "preference
preponderance of the evidence." Cypress-
for `mainstreaming' handi capped
Fairbanks, 118 F.3d at 252. Thus, the district
c h i l d r e n S S e d u c a t i n g t h e m w it h
court's review is "virtually de novo." Id.
nonhandicapped children." Rowley, 458 U.S.
at 181 n.4. Because Caius was
Our review of the district court is a mixed
"mainstreamed" and does not now challenge
question of fact and law that is reviewed de
the IEP on the ground that it was not
novo, but the underlying fact-findings, "such as
implemented in the least restrictive means, this
findings that a disabled student obtained
second factor is likewise not at issue.
educational benefits under an IEP, are
6

The third and fourth factors, however, call
response in noting that, "as long as there is no
for a more thorough analysis. The
change in the overall amount, some
requirement that the educational services be
adjustments in scheduling [IEP] services
provided in a "coordinated and collaborative
should be possible (based on the professional
manner by the key stakeholders" presents a
judgment of the service provider) without
more difficult issue. On the one hand, the
holding another IEP meeting." 34 C.F.R. part
district court concluded that HISD met this
300, app. C, question 51 (1997). Accordingly,
requirement because "HISD provided the
the court disagreed with the TEA hearing
modifications and services outlined in Caius'
officer and concluded that the compensatory
IEP, allowed Caius' parents to air grievances,
speech therapy services were sufficient.
and regularly conducted ARD Committee
meetings to evaluate Caius' progress under the
This conclusion is correct, particularly in
IEP." While the court opined that the "most
light of the Department of Education's
significant failing" in this area involved the fact
interpretive response. Moreover, with respect
that for substantial portions of the 1994-95
to the speech therapy and AP services, the
academic year a speech therapist was not
district court invited us to consider Gillette v.
available at Mitchell Elementary, the court
Fairland Bd. of Educ., 725 F. Supp. 343 (S.D.
nonetheless felt that the compensatory services
Ohio 1989), rev'd on other grounds, 932 F.2d
offered the following summer were sufficient
551 (6th Cir. 1991), in which the court held
to remedy any shortcoming. And with respect
that a local education agency's failure to
to HISD's inability to provide an AP program
provide all the services and modifications
for two months during the beginning of the
outlined in an IEP does not constitute a per se
1996-97 year, HISD argues that the school
violation of the IDEA. In Gillette, the court
offered compensatory AP services (which
found that the local agency had provided a free
Caius's parents refused) until the school could
appropriate education when "significant
hire an AP teacher. The court agreed with
provisions of the IEP were followed," even
HISD with respect to the AP services, though
though the petitioner had clearly demonstrated
it did not carefully analyze the issue.
that portions of the IEP were not implemented
at all. See id. at 347-48 (emphasis added).
On the other hand, the hearing officer
The same can be said hereSSi.e., the significant
concluded that HISD had failed on both
provisions of Caius's IEP were followed, and,
accounts. That is, she concluded that the
as a result, he received an educational benefit.2
compensatory speech therapy services
provided by HISD did not cure its earlier
failure to implement that portion of the IEP
The approach taken in Gillette seems
and that the HISD had agreed to provide AP
reasonable, particularly in light of Rowley's
services and had failed to do so in a consistent
flexible approach. Therefore, we conclude
and proper manner. These conclusions would
that to prevail on a claim under the IDEA, a
support Caius's argument that HISD failed to
party challenging the implementation of an IEP
provide the services in a "coordinated"
must show more than a de minimis failure to
manner, as would his assertion that HISD did
implement all elements of that IEP, and,
not provide highlighted or taped texts in a
consistent manner.
2 While consideration of any educational benefit
The district court's primary reason for
received might arguably seem to conflate the third
overturning the hearing officer's conclusions
and fourth prongs of the Cypress-Fairbanks
seems to be its belief that local school agencies
inquiry, determination of what are "significant"
should retain some flexibility in scheduling
provisions of an IEP cannot be made from an
services and, when necessary, providing
exclusively ex ante perspective. Thus, one factor
compensatory services. The court pointed to
to consider under an ex post analysis would be
a Department of Education interpretive
whether the IEP services that were provided
actually conferred an educational benefit.
7

instead, must demonstrate that the school
improvements are not trivial, and we cannot
board or other authorities failed to implement
say that the district court committed "clear
substantial or significant provisions of the IEP.
error" in its factual determination that Caius
This approach affords local agencies some
received an educational benefit from his IEP.
flexibility in implementing IEP's, but it still
See Cypress-Fairbanks, 118 F.3d at 252.
holds those agencies accountable for material
failures and for providing the disabled child a
The affidavits submitted by Caius do not
meaningful educational benefit.
change our conclusion. First, Nancy
LaFevers, a licensed language pathologist who
The fourth and final factor under Cypress-
examined Caius on two occasions, opined that
Fairbanks is whether there have been
his progress was slower than what she would
demonstrable academic and non-academic
have expected under "appropriately
benefits from the IEP. The district court
implemented [AP] training" and that his
framed the issue under this inquiry as what
progress in word attack skills was de minimis.
should be the appropriate manner for
Even accepting that characterization of his
measuring academic advancement under the
improvement in word attack, it is not
IDEA. Caius claimed that a child's percentile
necessary for Caius to improve in every area to
scores were the best measure of academic
obtain an educational benefit from his IEP.
performance, while HISD argued that passing
marks and advancement from grade to grade
Second, Caius submitted an affidavit from
were sufficient indicia to satisfy the IDEA.
Donna Weinberg, the owner and director of
And on this dispute the district court is correct
the privately-run Cliffwood School where he
that a disabled child's development should be
began attending in 1997. She noted only that
measured not by his relation to the rest of the
Caius has progressed "nicely" since his arrival
class, but rather with respect to the individual
at Cliffwood School and that he was adjusting
student, as declining percentile scores do not
to another way of approaching his studies.
necessarily represent a lack of educational
These statements say nothing about his
benefit, but only a child's inability to maintain
development or lack thereof, during his years
the same level of academic progress achieved
by his non-disabled peers. As with the
argument in Rowley that an IEP must
(...continued)
maximize a child's potential, the argument that
written language improved from the 1.5 grade level
Caius should not experience declining
to 1.9; (3) passage comprehension went from 1.7 to
percentile scores may be an unrealistic goal,
2.2; (4) calculation rose from 1.4 to 3.3; (5)
and it is a goal not mandated by the IDEA.
applied problems improved from 2.0 to 3.0; (6)
dictation went from 1.6 to 1.8; (7) writing
Instead, the district court was correct to
improved from 1.4 to 2.6; (8) word identification,
focus on the fact that Caius's test scores and
basic reading skills, and letter identification rose
grade levels in math, written language, passage
from 1.8 to 2.1; and (9) word attack rose from the
comprehension, calculation, applied problems,
level of a seven-month kindergarten student to
dictation, writing, word identification, broad
grade level 1.8.
reading, basis reading cluster and proofing
improved during his years in HISD.3 These
From 1995 to 1996, Caius showed the
following improvements: (1) Broad reading
increased from 2.1 to 3.3; (2) word identification
from 2.1 to 2.8; (3) passage comprehension from
3 HISD employed the widely utilized and
2.2 to 3.9; (4) math from 3.1 to 4.4; (5) calculation
accepted Woodcock Johnson intelligence and
from 3.3 to 5.0; (6) applied problems from 3.0 to
achievement test to indicate Caius's academic
3.6; (7) written language from 1.9 to 2.9; (8)
progress. Caius's test scores showed the following
dictation from 1.8 to 2.8; (9) writing samples from
changes from 1993 to 1995: (1) Math scores
2.6 to 3.3; (10) basic reading cluster from 2.1 to
improved from the 1.7 grade level to 3.1; (2)
2.8; and (11) proofing from 2.3 to 2.6. Only word
(continued...)
attack remained the same, at the 1.8 grade level.
8

in HISD, and, as a result, they do nothing to
IV.
establish that he did not receive an educational
In sum, we find that the IEP was reasonably
benefit from the IEP.
calculated to provide Caius a meaningful
educational benefit, in accordance with the
Finally, Caius offered the affidavit of Jean
IDEA. Moreover, he received that benefit, as
White, the owner and operator of Educere,
demonstrated by his increased test scores in a
where Caius received private tutoring from
variety of areas. There is also no evidence that
White in 1997. Again, like Weinberg's
HISD consented to his transfer to private
statements, White's affidavit does not establish
school during the pendency of this appeal.
that Caius received no educational benefit
Therefore, the district court was correct in
from HISD. Instead, her affidavit would, at
reversing the decision of the hearing officer, in
best, support an argument that the IEP
holding that Caius was not denied a "free
developed for Caius did not maximize his
appropriate public education," and in denying
educational potential. But as Rowley held, the
Caius's claims for reimbursement.
IDEA does not require maximization of a
disabled student's educational potential.
AFFIRMED.
There is no genuine issue of material fact
about whether Caius received an educational
benefit from the IEP, as demonstrated by the
objective evidence of increased scores and
grade levels. And because there were no
material issues of fact presented under the
other three Cypress-Fairbanks criteria, the
district court was correct in finding that Caius
received a free appropriate public education in
accordance with the IDEA.
B.
Likewise, the court was correct to reject
Caius's claims for reimbursement. Although
20 U.S.C. § 1415(e)(3)(A) provides that
"during the pendency of any proceedings
conducted pursuant to this section, . . . the
child shall remain in the then current
educational placement of such child," "parents
who unilaterally change their child's placement
during the pendency of review proceedings,
without the consent of state or local school
officials, do so at their own financial risk. If
the courts ultimately determine that the IEP
proposed by the school officials was
appropriate, the parents would be barred from
obtaining reimbursement for any interim period
in which their child's placement violated
§ 1415(e)(3)." School Committee v.
Department of Educ., 471 U.S. 359, 373-74
(1985). Because HISD did not consent to
Caius's transfer to private school, the district
court's dismissal was appropriate.
9