5th Circuit Cases

Fifth Circuit Case Law Relevant to Special Education Matters

A.D. v. Kirby, 975 F.2d 193 (5th Cir. 1992)
A fundamental change in, or elimination of a basic element of, an educational program which adversely affects a child’s learning in a significant way, constitutes a “change in placement” for purposes of IDEA.

Alamo Heights Indep. School Dist. V. State Bd. of Educ., 790 F2d 1153 (5th Cir 1986)
When reviewing whether parents shall be reimbursed for private placement when the school has failed to offer a child FAPE, the conduct of both parties must be reviewed to determine whether relief is appropriate.  While the parents’ placement does not have to be an exact and proper placement under IDEA, the placement must have met the child’s needs and provided educational benefit.

Alvin ISD v. A.D., 503 F. 3d 378 (5th Cir. 2007).
Court said that school district can consider academic, behavioral and social progress in determining whether an educational need for special education and related services exists. “First, [the student’s] passing grades and success on the [statewide assessment] demonstrate academic progress,” Judge Benavides wrote. Second, [the student’s] teachers testified that, despite his behavioral issues, he did not need special education and was achieving social success in school.” Like the District Court, the 5th Circuit found the testimony of the student’s teachers to be more credible than the testimony of the student’s physicians, who based their opinions on secondhand information rather than firsthand observations.”

Andress v. Cleveland Independent School Dist., 64 F.3d 176 (5th Cir. 1995)
A parent who desires for her child to receive special education services from the school must allow the school to reevaluate the child, and that there is no exception to this rule.

Angela L. v. Pasadena Independent School Dist., 918 F.2d 1188 (5th Cir. 1990)
The term “proceeding” refers to due process hearings and therefore, plaintiffs can recover attorneys’ fees if they prevail at this level, even if no subsequent action is ever filed in state or federal court.  Plaintiffs’ claims for lost wages constitute a claim for damages rather than for compensatory education, and are not recoverable under IDEA.

The legal standard for determining “prevailing party” status for attorneys’ fees is the same as that governing the award of attorney fees in civil rights litigation pursuant to 42 U.S.C. § 1988.  The amount of attorneys’ fees to be recovered by a prevailing party may be adjusted by the court based on the experience, reputation and ability of the attorneys.

To be a prevailing party, a plaintiff must show (1) he obtained relieve on a significant litigation claim (2) there was a material alteration in the parties’ legal relationship as a result and (3) the alteration was not a mere technicality or de minimis.

Buser v. Corpus Christi Indep. Sch., 51 F.3d 490 (5th Cir. 1995)
Compliance with procedural safeguards will, in most cases, assure that a child’s substantive right to FAPE has been met.  These procedures must be followed to guarantee parents meaningful input into their child’s education, and the right to seek review of any decisions they find inappropriate.

Cefalu v. East Baton Rouge Parish School Board, 117 F.3d 231 (5th Cir. 1997)
When a school district is willing to serve a child with a disability but his parents voluntarily choose to place him in a private school, the child has no individual entitlement to any services from the public educational agency.

Christopher M. v. Corpus Christi ISD, 933 F.2d 1285 (5th Cir. 1991)
A presumption exists in favor of a school’s program, placing the burden on the party attacking the IEP and the placement.

Cypress-Fairbanks Indep. Sch. Dist. V. Michael F., 118 F.3d 245 (5th Cir. 1997)
The FAPE described by IDEA does not have to be the best possible one or one that will maximize a student’s educational potential; rather, the Act guarantees only a basic floor of opportunity.  Although the school district need only provide “some educational benefit”, thus the educational program must be meaningful.  There are four factors that can aid in evaluating whether a student is receiving access to instruction and related services which are individually designed to provide educational benefit:  (1)  whether there is an individualized program based on the student’s assessment and performance; (2) whether the individualized program is administered in the LRE; (3) whether the services are provided in a coordinated and collaborative manner by the key stakeholders; and (4) whether positive benefits are demonstrated both academically and non-academically.

Necessary ingredients of FAPE are coordination and collaboration between parties.

The party attacking the appropriateness of an IEP established by a local educational agency bears the burden of showing why the IEP and resulting placement were inappropriate under IDEA.  Thus, plaintiffs have the burden of showing that defendants did not comply with the procedures set forth in the Act, or that even if the procedures were proper, the challenged IEPs were not reasonably calculated to provide meaningful educational benefit.

Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 (5th Cir. 1989) “A violation of the [IDEA's] procedural guarantees may be a sufficient ground for holding that a school system has failed to provide a free appropriate public education”.

Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981)
If a state provides public education, it is constrained to recognize each student’s legitimate entitlement to public education as a property interest, protected by the Due Process Clause.

D.P. Solutions, Inc. v. Rollins, Inc., 353 F.3d 421, 434 (5th Cir. 2003). The Fifth Circuit has likewise held that "a party may recover for time spent on unsuccessful motions so long as it succeeds in the overall claim." Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 257 (5th Cir. 1990)

Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 690 (5th Cir. 1996) (noting that “[o]nce a child's educational program is determined, the local school district must then attempt to place the student in the [LRE]” (emphasis added)) The court considered the issue of proximity to a child’s home in determining a student’s proper placement: The regulations, not the statute, provide only that the child be educated “as close as possible to the child's home.” However, this is merely one of many factors for the district to take into account in determining the student's proper placement. It must be emphasized that the proximity preference or factor is not a presumption that a disabled student attend his or her neighborhood school. 91 F.3d 689, 693-94 (5th Cir. 1996) (citations omitted) (holding school district's choice to educate a deaf child at a regional school rather than her neighborhood school was consistent with the IDEA), cert. denied, 117 U.S. 948 (1997).

Foreman v. Dallas County, 193 F.3d 314 (5th Cir. 1999)
Temporary restraining orders are a “stay put” equitable remedy whose purpose is the preservation of the status quo while merits of a case are litigated.  This sort of “stay put” does not constitute the sort of relief that gives a plaintiff prevailing party status.

Gardner v. Sch. Bd. of Caddo Parish, 958 F.2d 108 (5th Cir. 1992)
A plaintiff must exhaust administrative remedies before bringing an action in federal court. Parents have the right to receive prior written notice of administrative actions

Georgia Highway Express, Inc. 488 F.2d 714 (5th Cir.1974). The Court took into account the following factors when determining an attorneys fees award was reasonable, the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal service properly; the preclusion of employment by the attorney due to the acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount of time involved and the results obtained; the experience, reputation and ability of the attorneys; the “undesirability” of the case; the nature and length of the professional relationship with the client; and awards in similar cases.

Houston Independent School District v. Bobby R., 200 F.3d 341 (5th Cir. 2000)
A technical violation of IDEA’s procedural requirement does not amount to a denial of FAPE without showing that such violation had a significant adverse effect on the student’s education.  Thus, a school’s rescheduling makeup sessions of speech therapy is not a failure to implement the IEP as written. 

IDEA requires only that the child be able to benefit from the instruction received, not that the student be able to maximize his potential commensurate with the opportunity provided non-handicapped children.

The party challenging the IEP must show more than a de minimis failure to implement the IEP, and must show that substantial or significant provisions of the IEP were not implemented.  This affords local agencies some flexibility in implementing IEPs, but still holds agencies responsible for material failures and for providing meaningful educational benefits.

Jackson v. Franklin County School Bd., 806 F.2d 623 (5th Cir. 1986)
Remedial educational services may be more valuable than any pecuniary damages that could be awarded for IDEA violations.

Jason D.W. by Douglas W. v. Houston Independent School Dist., 158 F.3d 205, 209 (5th Cir. 1998). Courts have a “generous formulation” of the term prevailing party, under which “plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’” (emphasis supplied);

Johnson v. Georgian Highway Express, Inc. 488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds, 489 U.S. 87 (1989). Whether, as a matter of law, the amount of attorneys’ fees requested by Plaintiff are reasonable based on the factors set forth in specifically: (1) the time and labor required for the litigation; (2) the novelty and difficulty of the questions presented; (3) the skill required to perform the legal
services properly; (4) the preclusion of other employment by the attorneys due to
acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the result obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Johnson v. Mississippi, 606 F.2d 635, 637-38 (5th Cir. 1979); Knighton v. Watkins, 616 F.2d 795, 800 (5th Cir. 1980). Time spent litigating the entitlement to and amount of fees is compensable.

Lightbourn v. County of El Paso, Texas, 118 F.3d 421 (5th Cir. 1997)
Section 504 does not apply to the entire state government whenever any of its parts receives federal funds – this is why subsection (b)(1)(B) is necessary.

Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 333-34 (5th Cir. 1995).
By its own terms, Rule 68 applies only to “a party defending against a claim.”
FED. R. CIV. P. 68 (emphasis added). Indeed, the Supreme Court has explicitly held that the Rule “applies only to offers made by the defendant and only to judgments obtained by the plaintiff.”

Pace v. Bogalusa City School Board, 403 F3d 272 (5th Cir. 2003)
The state of Louisiana waived its 11th Amendment immunity from suit under the Individuals with Disabilities Education Act and the Rehabilitation Act because it accepted funds under those laws in the late 1990s.

Pederson v. Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000)
Standing to bring suit requires alleged misconduct only, not proven misconduct.  It is inappropriate for a court to focus on the merits of a case when looking at standing.

Ragas v. Tennessee Gas Pipeline Co.,136 F.3d 455, 458 (5th Cir. 1998).
Summary judgment is proper when the pleadings and evidence on file demonstrate 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).

Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d 1205 (5th Cir. 1996)
It is within the court’s discretion to allow a party to supplement the record under Rule 59(e) or 60(b).

S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981) cert. den. 458 U.S. 1030 (1981)
Discipline should not be imposed on a student if the misconduct is related to the student’s disabling condition, and discipline that results in loss of school time should not be imposed on children with disabilities.

Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458 (5th Cir. 1995)
The party attacking the IEP has the burden of showing that the school did not comply with the procedures set forth in IDEA or that even if the procedures were proper, the challenged IEPs were not reasonably calculated to provide meaningful educational benefit.

A learning disabled and emotionally disturbed student does not require residential placement when her difficulties stemmed from family problems.  Compensation was denied for medical services and hospitalization that was deemed to be primarily for medical treatment as opposed to educational benefit.

Damages were awarded for a violation of IDEA, although the damages were nominal and the court did not discuss the availability of damages under IDEA as a general matter.

Scokin v. State of Texas, 723 F.2d 432 (5th Cir. 1984)
The statute of limitation period in the Fifth Circuit for an IDEA appeal is two years from the date of the TEA decision.

Shelby S. v. Conroe ISD, (5th Cir.) medical evaluations case.

Sherry A.D. v. Kirby, 975 F.2d 193 (5th Cir. 1992)
A transfer from a residential school for the blind to a community residence with the local school providing educational services did not constitute a change in placement.

Even in situations where mainstreaming is not a feasible alternative, there is still a statutory preference for LRE.

St. Tammany Parish Sch. Bd. v. Louisiana, 142 F.3d 776 (5th Cir. 1998)
State and local educational agencies may be held liable under IDEA for the failure to provide a fee appropriate public education.  However, the state agency is not under any duty to assume direct responsibility for the provision of FAPE.

Stacey G. v. Pasadena Independent School District, 695 F.2d 949 (5th Cir. 1983)
The purpose of stay put is the maintenance of the status quo in the student’s educational program pending resolution of the due process hearing.

Sylvie M. v. Bd. of Educ. Of Dripping Springs Independent School Dist., 48 F.Supp.2d 681 (W.D. Tex 1999), aff’d 214 F.3d 1351 (5th Cir. 2000), cert. denied 531 U.S. 879, 121 S.Ct. 190 (2000)
A student with emotional and behavioral problems, who also performs at or above grade level in every subject, is ineligible for special education because he is receiving educational benefit from her public education program.

Tarka v. Franklin, 891 F.2d 102 (5th Cir. 1989)
FERPA does not create an implied private right of action, as legislative history bears out the suggestion that Congress did not intend it to be so.

Tatro v. Texas, 703 F.2d 823 (5th Cir. 1983)
Schools’ educational programs are entitled to a presumption of appropriateness, and petitioners bear the burden of proving that they are not appropriate.

Teague Indep. Sch. Dist. V. Todd L., 999 F.2d 127 (5th Cir. 1993)
Although due weight is to be given to the administrative proceedings, the district court’s review is virtually de novo.  The IDEA does not require that the district court defer to the administrative 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.

Weil v. Board of Elementary & Secondary Educ., 931 F.2d 1069 (5th Cir. 1991)
No change in educational placement occurs when the same IEP is implemented, but the child is placed in different school facility.

White v. Ascension Parish Sch. Bd., 343 F.3d 373 (5th Cir. 2003) (upholding school district’s placement of student in regional day school that had appropriate services rather than in neighborhood school in closer proximity to her home).

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