Richardson Independent School Dist. v. Michael Z

• Citation: 580 F.3d 286
• Decision Date: 21 August 2009
• Docket Number: No. 08-10604.,08-10604.
• Parties: RICHARDSON INDEPENDENT SCHOOL DISTRICT, Plaintiff-Appellant-Cross-Appellee, v. MICHAEL Z; Carolyn Z, as next friends of Leah Z, a minor child, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

580 F.3d 286

RICHARDSON INDEPENDENT SCHOOL DISTRICT, Plaintiff-Appellant-Cross-Appellee, v. MICHAEL Z; Carolyn Z, as next friends of Leah Z, a minor child, Defendants-Appellees-Cross-Appellants.

No. 08-10604.

United States Court of Appeals, Fifth Circuit.

August 21, 2009.

Bridget Ranee Robinson, Walsh, Anderson, Brown, Aldridge & Gallegos, Austin, TX, Nona C. Matthews (argued), Joe Ruben Tanguma, II, Walsh, Anderson, Brown, Schulze & Aldridge, Irving, TX, for Plaintiff-Appellant Cross-Appellee.

Myrna Bernice Silver (argued), Law Offices of Myrna B. Silver, Dallas, TX, for Defendants-Appellees Cross-Appellants.

Christopher Paul Borreca, Thompson & Horton, LLP, Houston, TX, for TX Ass'n of Sch. Boards Legal Assistance Fund, Amicus Curiae.

Tamu K. Floyd, McDermott, Will & Emery, Washington, DC, for Council of Parent Attys. & Advocates, Amicus Curiae.

Appeals from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, GARZA and PRADO, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In this case arising under the Individuals with Disabilities Education Act ("IDEA"), Richardson Independent School District ("RISD" or the "District") appeals the district court's judgment in favor of Appellees Michael Z. and Carolyn Z. as next friends of their daughter Leah Z. Specifically, the district court determined that RISD failed to provide Leah with a free appropriate public education as required under IDEA, and that RISD was therefore required to reimburse the parents for certain costs associated with Leah's placement in a private residential facility. The district court also awarded the parents attorneys' fees and costs, granting total relief in the amount of $91,482.60. For the following reasons, we vacate and remand.

I

Leah Z., a minor child at all relevant times, was diagnosed with attention deficit disorder, oppositional defiant disorder, bipolar disorder, autism, separation anxiety disorder, and pervasive developmental disorder. After experiencing emotional and behavioral difficulties at numerous private schools, Leah entered RISD for fifth grade in the fall of 1999. Leah's various diagnoses qualified her for special education and related services from RISD. Under IDEA, RISD was obligated to provide Leah with an education tailored to her specific needs through an individualized education program ("IEP"). In Texas, the committee responsible for preparing Leah's IEP was an Admission, Review, and Dismissal Committee ("ARD Committee" or "Committee").

In seventh grade, Leah entered Westwood Junior High School where she was placed in a Behavior Adjustment ("BA") class. An ARD Committee meeting report indicates that in October 2002, during Leah's eighth-grade year, she was writing at a second- to third-grade level, reading at a third-grade level, and performing math at a sixth-grade level.¹ Leah's behavioral and academic difficulties increased in eighth grade and she experienced significant regression over the summer prior to ninth grade. When Leah began ninth grade at Westwood Junior High School, the ARD Committee met to revise her IEP.² Nonetheless, Leah's academic and behavioral difficulties escalated. In the fall she began leaving class without permission almost daily. Leah arrived at school late, took lengthy breaks of up to two hours at a time, and left early. In November, Leah ran away from school and was eventually caught by the school police officer. At her mother's request, she was issued a citation for leaving school grounds. On a recommendation from Leah's psychiatrist, RISD educated Leah in a "homebound" setting for four days prior to the winter break.

After winter break, Leah returned to Westwood and was placed in a different BA class. Though the transition was initially smooth, by mid-January Leah was again arriving late, leaving early, and wandering outside the classroom without permission. Numerous incidents occurred, including Leah evading school officers, overturning furniture, insulting teachers, using profane language, and disrupting testing. In evaluating the conflicting evidence of how the school reacted to Leah's frequent absences from class, the district court concluded that sometimes RISD employees supervised Leah during her absences and sometimes they did not.

In February, it was discovered that during unsupervised absences from class Leah was engaging in sexual activities with other students in the bathroom. Her psychiatrist recommended that Leah remain home until an alternative placement could be found, and RISD agreed. In March, Leah was transferred to Richardson High School ("RHS") and placed in a BA class. Since the teacher of this class was on maternity leave, RISD hired a long-term substitute, who was not certified to teach in Texas, to supervise Leah. RISD offered little assistance to the substitute. For example, she was not given Leah's IEP, and no one explained to her that Leah's major problem was fleeing from class. It appears that most of the information the substitute had about Leah came from Leah's mother. Leah remained at RHS for only two weeks, during which the pattern of disruptive behavior and refusal to work continued. Later in March, an incident occurred at home where Leah scratched her father and caused him to bleed. Her psychiatrist recommended Leah's admission to a psychiatric facility, and Leah's parents eventually placed her at the Texas NeuroRehab Center ("TNRC"). As of April 5, 2004, Leah's parents had unilaterally removed her from RISD without notice to the District.

At TNRC, Leah attended the on-site University Charter School ("UCS"), a public charter school. UCS developed an IEP for Leah and provided her with physical therapy, occupational therapy, and counseling. Her adverse behavior continued and included numerous instances of groping staff members and other patients, attempting to remove other patients' clothing, refusing to follow directions or attend class, and engaging in self-mutilation. She was frequently physically restrained or placed in locked confinement. Leah's doctor, Dr. Mehta, considered Leah one of her most difficult patients. Dr. Mehta attributed Leah's behavioral problems to three factors: 1) Leah testing her limits in the restrictive TNRC placement; 2) the frequent changes made in her medications in an attempt to find the correct medication for her disorders; and 3) rapid and cyclical changes in her mood and behavior caused by her bipolar disorder. Dr. Mehta testified that Leah's behavior did not significantly improve until shortly after Leah started taking the medication Clozaril. The doctor attributed Leah's improvement to a combination of TNRC's structured environment, the medication, and intensive counseling and therapy sessions. Leah was discharged from TNRC on November 12, 2004, with the recommendation that she attend a special education class with one-on-one supervision to prevent future behavioral problems related to lack of supervision.

Meanwhile, in June 2004 Leah's parents requested an ARD Committee meeting to request Leah's placement at TNRC. After reviewing Leah's assessments from TNRC, the ARD Committee found that RISD remained capable of providing her with a free appropriate public education and denied the request for private residential placement. The Committee developed an updated IEP (the "June 2004 IEP") that attempted to account for Leah's sexual and aggressive behavior. Leah's parents argued to the Committee that the new IEP failed to adequately account for her behavioral or academic regression. The district court found that the June 2004 IEP was substantially similar to Leah's previous IEPs.

In July 2004, Leah's parents filed a request for an administrative due process hearing alleging that RISD failed to provide Leah with a free appropriate public education and requesting reimbursement for her placement at TNRC. The Hearing Officer found in favor of the parents and awarded them $56,000. The district court agreed, and awarded the parents $54,714.40 as reimbursement for the room and board, comprehensive therapy services, nursing services, and neurological diagnostics. The district court also awarded Leah's parents $36,768.20 in attorneys' fees and costs. RISD now appeals.

II

We review de novo the district court's decision that the local school's IEP was inappropriate and that the alternative placement was appropriate under IDEA, as a mixed question of law and fact. See Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir.1993) (citing Christopher M. v. Corpus Christi Indep. Sch. Dist., 933 F.2d 1285, 1289 (5th Cir.1991)). The district court's findings of "underlying fact" are reviewed for clear error. Id. Whether the child obtained any benefit from special education services is a finding of underlying fact. Id.

III

This appeal involves an interpretation and application of IDEA, 20 U.S.C. §§ 1400-1487.³ After the events in this case, Congress amended and reauthorized IDEA, see Individuals with Disabilities Education Improvement Act of 2004, Pub.L. 108-446, 118 Stat. 2647 (codified as amended at 20 U.S.C. §§ 1400-1482), and the Department of Education revised IDEA's implementing regulations, see Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed.Reg. 46540 (Aug. 14, 2006) (codified as amended at 34 C.F.R. §§ 300 & 301). For the present case, we must look to the code and regulations as they existed at the time of the events of this case. See Alvin Indep Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 382 n. 4 (5th Cir.2007). That is, we must look to the 1997 version of IDEA (which was in effect through 2004) and its implementing regulations. See Individuals with Disabilities Education Act Amendments of 1997, Pub.L. 105-17, 111 Stat. 37 (codified at 20 U.S.C. §§ 1400-1487).

IDEA requires states to provide all children with a "free appropriate public education" in order to receive...