Klein Indep. Sch. Dist. v. Hovem

• Decision Date: 06 August 2012
• Docket Number: No. 10–20694.,10–20694.
• Citation: 283 Ed. Law Rep. 667,690 F.3d 390
• Parties: KLEIN INDEPENDENT SCHOOL DISTRICT, Plaintiff–Appellant, v. Per HOVEM; Knut Hovem; Signe Hovem, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

690 F.3d 390

283 Ed. Law Rep. 667

KLEIN INDEPENDENT SCHOOL DISTRICT, Plaintiff–Appellant,

v.Per HOVEM; Knut Hovem; Signe Hovem, Defendants–Appellees.

No. 10–20694.

United States Court of Appeals,Fifth Circuit.

Aug. 6, 2012.

Jeffrey L. Rogers (argued), Amy Joyce Cumings Tucker, Rogers, Morris & Grover, L.L.P., Houston, TX, for Plaintiff–Appellant.

Martin J. Cirkiel (argued), Cirkiel & Associates, P.C., Round Rock, TX, Dorene J. Philpot, Philpot Law Office, P.C., Galveston, TX, for Defendants–Appellees.

Mark Lenard Gross, Deputy Chief Counsel, U.S. Dept. of Justice, Civ. Rights Div.—App. Section, Washington, DC, for Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.

EDITH H. JONES, Chief Judge:

Per Hovem (“Per”), a former student of Klein Independent School District (“KISD”), along with his parents, filed a claim under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., for reimbursement of private school expenses incurred because KISD allegedly failed to provide Per with a free appropriate public education (“FAPE”) while Per was a KISD student. The special hearing officer and the district court found in favor of the Hovems. KISD appeals. The provision of FAPE to a student qualified for special education must be judged by the overall educational benefits received, and not solely by the remediation of the student's disability. Because this student's IEPs enabled him to excel, with accommodations for his disability, in a mainstream high school curriculum, KISD complied procedurally and substantively with IDEA.

I. Background

Appellee Per Hovem is a former student of KISD who suffers from several disabilities in the area of written expression. Born in Norway in 1989, Per moved with his parents to Texas just before beginning the fifth grade. From the start of his enrollment in KISD, Per demonstrated high intelligence (ultimately, a 142 IQ) and above-average performance in math and social studies. Nevertheless, Per demonstrated writing and language difficulties, along with symptoms of attention deficit disorder (“ADD”). The school's Admission, Review, and Dismissal (“ARD”) committee found that Per's “writing skills were extremely limited, that his spelling and handwriting skills were very poor, and that he had difficulty in transferring information to paper.” KISD determined that he was eligible for special education services, including an English resource class, as of December 3, 2001. Per and one or both parents met with various KISD teachers and experts in periodic ARD meetings throughout his public school career; all agreed, until the end, on his Individualized Education Program (“IEPs”) prepared to comport with IDEA.

On October 30, 2003, KISD occupational therapist Dawn McDonald issued a report recommending that Per use a portable speller to address his spelling difficulties, a particular area of weakness for him. KISD provided the portable speller to Per for class and home use for the next five years. Beginning in the 2003–2004 school year, KISD provided Per study guides for his classes and hard copies of class notes. He was also permitted to use a computer in class for essay and written responses to assignments, while other students were required to handwrite their work. KISD made various accommodations because of Per's diagnosed difficulty in transferring information to paper by hand. He was allowed to correct his spelling errors without penalty, to take extra time on written work, and to answer essay test questions orally.

On entering high school, Per began attending regular education classes, albeit with the accommodations noted above, including the ability to type written work at home. Pursuant to his parents' request, he was placed on a trial basis in a regular English I class (with accommodations). Per and his parents signed the ARD, which stated as Per's “Transition Plan” that he would graduate Outcome 1 (Regular Graduation) and attend college. In January, 2005, Klein's educational diagnostician Hilda Castagnos tested Per extensively and found significant disparity between his strong achievement in reading comprehension and relative weakness in areas of written expression, pseudo-word decoding and word reading. Not only did Per pass all his classes, however, he received a 92 in the “trial” semester of English I.

The tenth grade was again academically successful for Per. During the fall of 2005, Per's mother solicited tutoring from Mr. Greer, an English teacher, to assist Per on the TAKS writing test scheduled in February 2006. Per attended a couple of times but then, without explanation, stopped attending. With accommodations, he completed his courses with above-average grades, passed all sections of the state-mandated TAKS test, including the writing test, and achieved a commended Social Studies ranking.¹

In September 2006, Per's ARD committee met to create his IEP for the junior high school year. The IEP listed as among Per's annual goals that he would receive a passing score in all classes and would advance one grade level, with or without the use of technology or a spelling device. Per was to attend regular education classes but would continue to receive accommodations including extra time to complete written assignments, the opportunity to respond orally to assignments, printed copies of class notes, and the continued use of his portable speller in class and at home. Per expressed his desire to attend NYU following graduation. Significantly, Per's parents questioned his writing skills. Ms. McDonald, an occupational therapist, was tasked to evaluate his success with assistive technology. She was aware that teachers had not seen Per using his portable speller in their classes, but Per assured her that he could use it. Indeed, he was given and used a portable French speller in his second-year French class. (Later, in the administrative hearing, Per confirmed that he felt uncomfortable using the portable speller in mainstream classes and that it sometimes took a frustratingly long time to use.) Ms. McDonald concluded her evaluation recommending continued use of the portable speller and classroom computers.

Per continued to earn above-average grades in his junior year in the following classes: English, Algebra 2, Chemistry, United States History, French 2, Theater Production, and Art. He was expected to pass the TAKS test administered at the end of the year, and he achieved Commended scores in Social Studies and Science, but he failed the written composition sections, which comprised a portion of the exit level English test.

Responding to this singular failure, the school placed Per in a practical writing course during his senior year. Conducted by Mr. Greer, an experienced teacher, this small class was designed for students who failed the written portion of the ELA TAKS test. The class met daily and systematically covered basic writing skills. Per never attended the additional tutoring Greer offered. At the administrative hearing, however, Per testified that Greer's approach most closely resembled his later remedial instruction at Landmark School and, as such, was helpful to him. Mr. Greer testified in the hearing that by spring 2008, he thought Per had developed skills sufficient to enable his passing the writing portions of the TAKS test, with the use of a computer.

The ARD committee, meeting in mid-September, had planned Per's program for his senior year. At that time, with the acquiescence of Per and his parents, his accommodations were reduced to the use of a computer for writing assignments and the portable speller. He would remain in mainstream classes, including Mr. Greer's practical writing course, and would receive “special education monitoring” of only 30 minutes per semester. No change was made concerning his college-bound intentions. Reinforcing the expectations for Per, two of his SAT scores in October testing were very high: 650 (89th percentile nationally) in Critical Reading and 640 (84th national percentile) in Math. His SAT Writing score, however, was a lowly 340 (6th percentile nationally).

Per and his parents soon became convinced he was incapable, by virtue of his disability in written expression, of performing college-level work. His mother observed him struggle for hours and days while attempting to fill out college application forms and essays. His writing, she said, was so poor that he could not take phone messages at home. He failed both the October and spring re-takes of the ELA TAKS writing test.² The family had him re-evaluated and began looking into Landmark School in Boston, which specializes in teaching intelligent disabled students with methods designed to ameliorate their deficiencies in writing, spelling, and phonetics.

Not until March 2008 did a Klein English teacher, although familiar with Per's accommodations, recognize the extent of Per's difficulty in writing as she watched him make up an in-class essay assignment for her. Previously, Ms. Marek testified, his major papers had been turned in after being typed at home (like those of other students) and were at least as good as those of his peers. His written classwork was acceptable. His ability to read out loud, she said, was fine. Per never availed himself of graphic organizing materials she furnished the students to assist, inter alia, in framing their college essays, nor did he attend any of her regularly scheduled tutoring sessions.

In order to delay his graduation and preserve his eligibility for Landmark School, which would not accept high school graduates, Per dropped an economics class required for graduation from Klein. Beginning in May, a series of ARD committee meetings occurred in which the Hovems contended that Per had not received a FAPE from Klein, while the Klein participants urged Per to finish the economics class during the summer...