E. By R. Next Friend E. R. v. Spring Branch Indep. Sch. Dist., 17-20494

• Decision Date: 28 November 2018
• Docket Number: No. 17-20494,17-20494
• Citation: 909 F.3d 754
• Parties: E. R., BY Next of Friend E. R.; S. R.; K. R., Plaintiffs - Appellants v. SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Defendant - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

909 F.3d 754

E. R., BY Next of Friend E. R.; S. R.; K. R., Plaintiffs - Appellants

v.SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Defendant - Appellee

No. 17-20494

United States Court of Appeals, Fifth Circuit.

FILED November 28, 2018

James William Holtz, Holtz Law Firm, Houston, TX, for Plaintiff-Appellant.

Amy Joyce Cumings Tucker, Jonathan Griffin Brush, Rogers, Morris & Grover, L.L.P., Houston, TX, for Defendant-Appellee.

Before JONES, BARKSDALE, and WILLETT, Circuit Judges.

PER CURIAM:

This appeal under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 – 1482 (IDEA), following E.R.’s receiving adverse decisions at both the state-administrative and district-court levels, generally contests whether the court erred in: denying E.R.’s request to present additional evidence; applying Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 , ––– U.S. ––––, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017) ; and granting summary judgment to Spring Branch Independent School District (SBISD). AFFIRMED.

I.

E.R. is a child with substantial health impairments, which entitle her to special education and services from SBISD, her school district. Concerning those impairments, E.R. has a history of life-threatening, yet non-convulsive, seizures, manifested, inter alia , by minor changes in her personality. The seizures must be timely treated by activating an implanted vagus-nerve stimulator and administering a Diastat

suppository within two minutes. Additionally, E.R. has permanently implanted shunts in her head that could fail, attention-deficit hyperactivity disorder (ADHD), a speech impairment, and impaired concentration. E.R. is globally developmentally delayed with an IQ of 51, and her medicines affect her ability to progress academically. Nevertheless, she can learn and enjoys doing so.

E.R. began the first grade in SBISD in 2011. Although her home school was Frostwood Elementary (only a block away), she attended Wilchester Elementary because, at the time, Frostwood did not have a life-skills program. E.R.’s parents were pleased with Wilchester overall.

E.R.’s academic years are based on individualized education plans (IEP) developed at admission, review, and dismissal committee (ARDC) meetings. See generally 20 U.S.C. § 1414(d) (defining an IEP and its use); id. § 1414(d)(2)(A) (requiring an IEP be in place "[a]t the beginning of each school year"); id. § 1414(d)(4)(A)(i) (requiring the IEP to be reviewed at least annually). ARDC meetings are to include, among other things, a discussion of the child’s present levels of academic achievement and functional performance, and to set future goals. Id. § 1414(d)(1)(A)(i) (describing IEP components). Parents attend ARDC meetings and sign-off on the decisions made. See id. § 1414(d)(1)(B) (including "parents of a child with a disability" being part of the "individualized education program team").

Concerning the issues at hand, E.R.’s parents attended the ARDC meeting in April 2014, which set the 2014-15 IEP goals for E.R.’s upcoming fourth-grade year. The 2014-15 IEP enumerated seven goals across four subjects (language arts, math, science, and social studies); and transferred E.R. from general-education to life-skills science, with fine arts being her only class in a general-education setting. At this meeting, E.R.’s parents were assured E.R. would continue attending Wilchester the next school year (2014-15); and they signed the proposed IEP.

About a week later, however, Mathis, SBISD’s coordinator for developmental disabilities, informed E.R.’s father that, for the 2014-15 school year, E.R. might be transferred to Frostwood, which was opening a life-skills program, and, as noted supra , was E.R.’s home school. (Again, E.R. lived only a block away.) In response to this possibility, E.R.’s father emailed SBISD his concerns, which included whether the Frostwood staff had the ability to cope with E.R.’s medical condition. In the email, E.R.’s father withheld approval of the transfer, but also suggested SBISD personnel could be transferred to Frostwood with E.R.SBISD transferred E.R. to her home school, Frostwood, for the 2014-15 school year; but, in doing so, it also transferred Firozgary (an aide already familiar with E.R.) with E.R. In an email to Mathis, E.R.’s father stated Firozgary’s transfer "[brought] a lot of relief".

Frostwood held a luncheon to welcome its new families. E.R.’s parents were unable to attend, but did visit the school prior to the start of the 2014-15 school year. During this visit, E.R.’s father developed numerous concerns about the facility, the staff, and the morning drop-off procedures.

Frostwood’s principal accommodated E.R.’s father’s request for morning drop-off the same day she met with him; invited E.R.’s parents to meet with her in order for her to learn more about E.R.; and welcomed open communication regarding areas in which Frostwood could improve. Moreover, in response to concerns about the number of people trained to assist E.R. in an emergency, the school nurse trained the life-skills staff, three nearby teachers, and a speech teacher.

During September 2014, E.R.’s parents and Pye, E.R.’s teacher, corresponded by email regarding E.R. Pye would communicate with E.R.’s parents concerning E.R.’s progress on her goals, what she ate, the location of her medicine, her ability to focus, and her physical status. In an email to Pye, E.R.’s father thanked her for one of her updates and said he "deeply appreciate[d] everything [she was] doing for [E.R.] and the class". Additionally, Pye would email E.R.’s parents when E.R. had an off day. Once, after communicating with E.R.’s mother, Pye agreed to microwave E.R.’s food to make it more appealing to her.

Pye took other steps to ensure free-flowing communication with E.R.’s parents. For example, she emailed them a flyer she sent home with E.R., to ensure they received it. And, Pye set up a blog where she would post updates about the class and E.R. In an email to Pye, E.R.’s mother wrote "[t]he website looks great" and suggested more information Pye could include in the blog posts that could "help [E.R.’s parents] communicate with [E.R.]" about her day. In a mid-September email, E.R.’s father described the updates from Pye as "spectacular" and was "deeply appreciative", although, during his testimony to the state hearing officer, he described that email as simply to "motivat[e]" Pye.

Pye went so far as to give E.R.’s parents her cell-phone number, and testified, before the hearing officer, that she and "[E.R.’s mother] ... would text each other frequently during the day". E.R.’s parents were also impressed with Firozgary, and on occasion would utilize her to transport E.R. home from school when they were too busy.

SBISD continued to fulfill E.R.’s father’s requests. In a 9 October 2014 email to Pye and Frostwood’s principal, E.R.’s father complained about the school’s allowing Pineda, a paraprofessional who assisted Pye, to work with E.R.; threatened to keep E.R. at home if Firozgary was absent; and stated he had been "fully prepared to take appropriate action to stop the transfer from Wilchester" had Firozgary not been transferred with E.R. In her email response to E.R.’s father, Pye assured him accommodations would be made when Firozgary could not attend to E.R.

Pye continued communicating with E.R.’s parents and involved them in decision-making. For example, when Pye and Pineda were going to be absent one day, Pye included E.R.’s parents, by email, on the decision for which art class E.R. should attend, explaining why there was a scheduling problem and giving E.R.’s parents two options from which to choose. In an email response, E.R.’s father thanked Pye for being kept in the loop and stated, inter alia : "Whereas you have an alternative in-class activity planned, let’s not go crazy over one art class".

E.R. had a shunt failure in school in mid-October 2014, and, during the incident, complained of neck pain. Pye realized E.R.’s complaints of neck pain were abnormal, and contacted E.R.’s mother; E.R. was treated at a children’s hospital, and returned to class the next week.

By late October, Pye received an unfavorable medical diagnosis. Seemingly in response to Pye’s anticipated absences, E.R.’s father, on 21 October, emailed Teater, the coordinator for behavioral programming, that he was considering filing a lawsuit and would "act with unimpeded professional aggressiveness". (E.R.’s father is a lawyer.)

In response, Teater emailed E.R.’s father "to reassure [him]" Frostwood would have a certified special-education teacher in the life-skills class. Teater also visited E.R.’s classroom the next day. She communicated to E.R.’s father positive findings relating to E.R., and also arranged for a visit by an instructional facilitator.

In addition to the instructional facilitator, two experts, who specialized in training the teachers, reviewed the class. Their findings were also largely positive, noting E.R. was progressing.

Additionally, the school held a meeting for all the life-skills parents on 27 October to hear their concerns and address Pye’s absences. E.R.’s father testified, before the hearing officer, that he stated a desire at the meeting for E.R. to return to Wilchester, but was "not dead set" on Wilchester if there was a better option. SBISD refused the transfer request. In that regard, E.R.’s father later testified, before the hearing officer, that he said he did not want to have E.R. "somewhere that is anything less than perfect". Frostwood’s life-skills program continued.

In late November, E.R.’s father emailed Teater and the director of special education to request an ARDC meeting; it was held in early December. At the meeting, E.R.’s father voiced his concerns regarding communication issues; and, although he articulated a willingness to work with SBISD, he also expressed a desire to reopen discussions regarding where E.R. would attend school. The ARDC did not make any decisions, and SBISD’s attorney...