Klein Indep. Sch. Dist. v. Hovem

Decision Date27 September 2010
Docket NumberCivil Action No. H–09–137.
PartiesKLEIN INDEPENDENT SCHOOL DISTRICT, Plaintiff/Counter–Defendant and Texas Education Agency, Defendant,v.Per HOVEM, Knut Hovem and Signe Hovem, Defendants/Counter–Plaintiffs.
CourtU.S. District Court — Southern District of Texas


Jeffrey L. Rogers, Rogers, Morris & Grover, L.L.P., Houston, TX, for Defendant.Martin Jay Cirkiel, Cirkiel Assoc., Round Rock, TX, Dorene J. Philpot, Philpot Law Office, P.C., Galveston, TX, for Defendants/Counter–Plaintiffs.


MELINDA HARMON, District Judge.

Pending before the Court in the above referenced cause, grounded in the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2)(A),1 appealing Texas Education Agency (TEA) Special Education Hearing Officer Tomas Ramirez, III's decision 2 that Klein Independent School District (KISD) failed to provide student Per Hovem with a free appropriate public education 3 and ordering Plaintiff/Counter–Defendant KISD to reimburse the Hovems for past and future educational expenses incurred by them at a private residential facility located in Massachusetts, are (1) KISD's motion for summary judgment (# 17) and (2) the Hovems' motion for judgment upon the administrative record (# 39).

After careful review of the administrative record, the parties' briefs, and the applicable law, and after considerable thought, the Court finds from a preponderance of the evidence in the administrative record, for reasons explained below, that the Hearing Officer's Decision should be affirmed in part and reversed in part and the Hovems' motion for judgment should be granted with regard to KISD's failure to provide Per with a FAPE and to reimbursement for educational expenses, but not for residential expenses, incurred by Per at Landmark School.

Standard of Review
Summary Judgment Under the IDEA: Review of Hearing Officer's Decision

When addressing a summary judgment under the IDEA appealing a hearing officer's decision, the court reviews the administrative record of the due process hearing and examines new evidence at the request of any party. HISD v. V.P. ex rel. Juan P., 582 F.3d 576 (5th Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1892, 176 L.Ed.2d 365 (2010); Cypress–Fairbanks ISD v. Michael F., 118 F.3d 245, 252 (5th Cir.1997) ( citing Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)), cert. denied, 522 U.S. 1047, 118 S.Ct. 690, 139 L.Ed.2d 636 (1998). When no new evidence is presented to the district court in an IDEA suit, ... “the motion for summary judgment is simply the procedural vehicle for asking [the judge] to decide the case on the basis of the administrative record.” El Paso ISD v. Richard R., 567 F.Supp.2d 918, 927 (W.D.Tex.2008), citing Heather S. v. State of Wis., 125 F.3d 1045, 1052 (7th Cir.1997). See also D.C. v. Klein ISD, 711 F.Supp.2d 739, 743–44 (S.D.Tex.2010), citing Loch v. Edwardsville School Dist. No. 7, 327 Fed.Appx. 647, 650 (7th Cir.2009); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir.1995) (“Though the parties [in an IDEA action] may call the procedure ‘a motion for summary judgment ... the procedure is in substance an appeal from an administrative determination, not a summary judgment.”). “Thus even though it is termed ‘summary judgment,’ the district court's decision is based on the preponderance of the evidence.” Loch, 327 Fed.Appx. at 650. Therefore the existence of a disputed issue of material fact will not defeat such a motion for summary judgment. 20 U.S.C. § 1415(i)(2)(C). The parties here have not submitted any new evidence, so this Court's review of the Hearing Officer's decision will therefore be based on the administrative record below.4

While the court must give the hearing officer's findings “due weight,” it must make an independent, “virtually de novo decision based on preponderance of the evidence before it. 20 U.S.C. § 1415(i)(2)(C); Michael F., 118 F.3d at 252. In applying the “due weight” standard, “the hearing officer's findings are not conclusive and the court may take additional evidence and reach an independent conclusion based on the preponderance of evidence.” Teague ISD v. Todd L., 999 F.2d 127, 131 (5th Cir.1993). Furthermore the district court does not have to defer to the hearing 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.” Id. The Teague appellate panel quoted Rowley:

Congress expressly rejected provisions that would have ... severely restricted the role of reviewing courts. In substituting the current language of the statute [20 U.S.C. § 1415(e)(2) ] for language that would have made state administrative findings conclusive if supported by substantial evidence, the Conference Committee explained that courts were to make ‘independent decision[s] based on a preponderance of the evidence.’

999 F.2d at 131, quoting Rowley, 458 U.S. at 205, 102 S.Ct. 3034 (quoting S. Cong. Rec. 37416 (1975) (remarks of Sen. Williams)). Nevertheless this preponderance-of-the-evidence standard is not “an invitation to the courts to substitute their own notion of sound educational policy for those of the school authorities which they review.” Rowley, 458 U.S. at 206, 102 S.Ct. 3034. “The primary responsibility for formulating the education to be accorded to a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.” Id. at 207, 102 S.Ct. 3034.

While the court reviews a mixed question of fact and law de novo, “the underlying fact-findings, ‘such as finding that a disabled student obtained educational benefits under an [individualized education program (“IEP”) ],5 are reviewed for clear error.’ HISD v. Bobby R., 200 F.3d 341, 347 (5th Cir.2000) ( quoting Cypress–Fairbanks, 118 F.3d at 252), cert. denied, 531 U.S. 817, 121 S.Ct. 55, 148 L.Ed.2d 23 (2000). “A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court based on all the evidence is left with the definitive and firm conviction that a mistake has been committed.” Houston Exploration Co. v. Halliburton Energy Servs., Inc., 359 F.3d 777, 779 (5th Cir.2004).


The Fifth Circuit has held that the IDEA creates a presumption in favor of the school district's IEP. White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 377 (5th Cir.2003). Therefore the party challenging the appropriateness of an IEP during the due process hearing bears the burden of showing why the IEP and resulting placement were inappropriate under the statute. Id.; Schaffer v. Weast, 546 U.S. 49, 57–58, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (In an administrative hearing under the IDEA, the burden of persuasion is properly placed on the party seeking relief, the plaintiff); Bobby R., 200 F.3d at 347. See also White, 343 F.3d at 377, citing Teague ISD v. Todd L., 999 F.2d 127, 132 (5th Cir.1993); Michael F., 118 F.3d at 252. The Fifth Circuit has further held that “at the district court level, as at the administrative level, the party challenging the IEP bears the burden of showing that the IEP and the resulting placement are inappropriate under the IDEA.” Richardson ISD v. Michael Z., 580 F.3d 286, 292 n. 4 (5th Cir.2009). Thus the Hovems still bear the burden of persuasion here.

A central goal of the IDEA is to make sure that children with disabilities “receive a ‘free appropriate public education [“FAPE”] 6 that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.’ Houston ISD v. V.P. ex rel. Juan P., 582 F.3d at 583. KISD, as ‘a local educational agency responsible for complying with the IDEA as a condition of the State of Texas' receipt of federal education funding’ ... must (1) provide each disabled child within its jurisdictional boundaries with a ‘free appropriate public education’ tailored to his unique needs, and (2) assure that such education is offered ... in the least restrictive environment consistent with the disabled student's needs.' Id., citing Michael F., 118 F.3d at 247. The school district does not have to “provide its disabled students with the best possible education, nor one that will maximize the student's educational potential.” Id., citing Michael F., 118 F.3d at 247 ( citing Rowley, 458 U.S. at 188–89, 102 S.Ct. 3034). ‘Nevertheless, the educational benefit to which the Act refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be likely to produce progress, not regression or trivial educational advancement’; in other words, KISD must provide its disabled students with ‘meaningful’ educational benefit.” Id., citing Michael F., 118 F.3d at 248. The decision whether a local district's IEP was appropriate under the IDEA is a mixed question of law and fact. Michael F., 118 F.3d at 252.

The IEP is the centerpiece of and the primary vehicle for effecting Congressional goals under the IDEA. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IEP “sets out the disabled child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” Id., citing § 1401(9). It must be reviewed at least annually and revised where necessary to ensure that the school district tailors the statutorily mandated FAPE to the child's unique needs. Id., citing § 1414(a)(5). Parental participation is essential in the development and subsequent assessments of the IEP's effectiveness. Id....

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