Spring Branch Independent School District v. O.W., 061220 FED5, 18-20274
|Opinion Judge:||DEBRA M. BROWN, District Judge:|
|Party Name:||SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Plaintiff - Appellant v. O.W., by next friend Hannah W., Defendant-Appellee HANNAH W., as Parent/Guardians/Next Friends of O.W., an Individual with a Disability; DANIEL W., as Parents/Guardians/Next Friends of O.W., an Individual with a Disability; O.W., Plaintiffs - Appellees v. SPRING BRANCH INDEPEND...|
|Judge Panel:||Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District Judge.|
|Case Date:||June 12, 2020|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Appeal from the United States District Court for the Southern District of Texas
ON PETITION FOR REHEARING
Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District Judge. [*]
DEBRA M. BROWN, District Judge:
Upon panel rehearing, we withdraw our prior opinion, Spring Branch Indep. Sch. Dist. v. O.W., 938 F.3d 695 (5th Cir. 2019), and substitute the following:
After years of private schooling, O.W., a minor, enrolled in the fifth grade in the Spring Branch Independent School District for the 2014-2015 academic year. From his first day of school, O.W. struggled behaviorally and, despite having a history of mental illness, was not referred for a special education evaluation until January of 2015. Following transfers to two different programs, O.W.'s behavioral problems continued. Ultimately, O.W. was withdrawn from school with three days remaining in the academic year. An administrative hearing officer found the School District violated the Individuals with Disabilities Education Act and awarded O.W. two years of private school tuition. The district court affirmed the award and the School District appealed. We AFFIRM in part, REVERSE in part, and REMAND.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural record in this case is extensive but largely undisputed.1
A. O.W.'s Early Education
During the summer of 2009, Hannah W. and Daniel W. registered O.W., their minor son, for kindergarten at Nottingham Elementary in the Spring Branch Independent School District. Although O.W. possessed a well-above average intelligence,  he experienced various behavioral problems at Nottingham, including aggression towards other children.
After O.W. completed his kindergarten year, his parents enrolled him at Rainard, a private school. O.W. attended Rainard as a first grader (the 2010- 2011 academic year) and a second grader (the 2011-2012 academic year). Following a self-harm attempt during his second grade year, O.W.'s parents moved him to The New School in the Heights, a private school for children with social-emotional challenges. O.W. attended The New School for third grade (the 2012-2013 academic year) and fourth grade (the 2013-2014 academic year). O.W. exhibited behavioral problems at The New School but finished the fourth grade with passing scores.
B. Return to Nottingham
In the summer of 2014, O.W.'s parents registered O.W. for the fifth grade (the 2014-2015 academic year) at Nottingham. Before the start of the term, Ms. W. provided Nottingham officials with an August 7, 2014, letter from Dr. Robbi Wright, who had served as O.W.'s psychiatrist since the end of 2012. The letter stated that O.W. suffered from attention deficit hyperactivity disorder and would thus benefit from § 5043 accommodations. Ms. W. also spoke with O.W.'s teacher "to provide a little background" about O.W.
On the first day of school, teachers discovered violent images of murder and death drawn by O.W, which also included anti-Semitic language and imagery, as well as obscenities. That day, Ms. W. conferenced with Nottingham's principal regarding the images.
The next day, O.W. held up his middle finger, used obscenities, and refused to follow directions. When administrators came to the classroom to assist the teacher, O.W., who was sitting on a bookshelf and refusing to come down, hurled insults laced with pejorative, vulgar, and racist terms. He then moved on from hurling words to hurling objects, throwing writing utensils at the assistant principal.
Over the next few days, Ms. W. spoke often with Nottingham's principal and assistant principal, during which she informed them that O.W. transferred from a therapeutic school, that he had difficulty with transitions, and that he suffered from Oppositional Defiant Disorder, Mood Disorder, Anxiety, and Depression.
Ms. W. also provided the school with contact information for Dr. Powell-Williams, a counselor from The New School who had provided daily counseling to O.W. Dr. Powell-Williams spoke with school staff and offered strategies to manage O.W. Also, district officials collaborated with O.W.'s parents and worked with O.W. "to find out what could be used as incentives to get him to complete his work." Despite these efforts, O.W. continued to act out by regularly engaging in acts of verbal and physical aggression, including using extreme profanity and throwing objects at the teacher; refusing to follow directions; leaving assigned areas, including the classroom, without permission; disrupting lessons by pushing keys on the teacher's laptop, playing with the ActivBoard, and yelling profanities from the back of the classroom; sleeping excessively in class; insulting fellow students; and touching or taking others' property. By early October of 2014, O.W. was interrupting classes daily.
On September 16, 2014, Nottingham provided Ms. W. a § 504 "Notice of Rights" and notice of a § 504 eligibility meeting to be held October 1, 2014. At approximately the same time, Ms. W. signed a "Notice and Consent for Initial Section 504 Evaluation," consenting to an evaluation of O.W. to determine whether he qualified for § 504 accommodations.
On September 23, 2014, Ms. W. provided a Family History Form to the School District which included a history of O.W.'s behavioral problems and a list of his medications. Ms. W. also provided the School District with a May 2012 evaluation of O.W. performed by Dr. Susan Rosin. Dr. Powell-Williams called the principal and discussed the possibility of a special education evaluation of O.W. Ultimately, the School District postponed the October 1 meeting until October 8, 2014, apparently to allow the School District's Licensed Specialist in School Psychology (LSSP) to review Dr. Rosin's evaluation.
At the October 8 meeting, the School District determined that O.W., who was removed from class on a daily basis due to his disruptive behavior, qualified for § 504 accommodations. To this end, O.W.'s parents and administration officials agreed to a behavior intervention plan (BIP), which appears to have been put in place.4 The plan utilized "Success Charts" which tracked O.W.'s problematic behaviors at thirty-minute intervals and provided rewards for good behavior. Notes from the meeting reflect O.W. was "at Level 2 intervention [methods but] may need to go to Tier 3."
The BIP's implementation had a minimal impact on O.W.'s behavior. The frequency of his misconduct "diminish[ed]" for a short time-O.W. was only disciplined once from October 8 until November 4 after being disciplined eight times from August 26 through October 6. However, O.W. was disciplined three times in November, including for a "major disru[ption]" related to him climbing the walls of the gym. In addition to these documented incidents of discipline, O.W. twice fell asleep in class during the month of November. Furthermore, by the end of the semester, his grades had dropped.
On January 9, 2015, O.W. hit a staff member in the back with a jacket. Shortly after, O.W. assaulted his fifth-grade teacher, "kicking her and hitting her with a closed fist." The second of these incidents resulted in the teacher bringing charges against O.W.
On January 15, 2015, the School District convened a second § 504 meeting. At the meeting, the School District informed O.W.'s parents that O.W. would be referred for a special education evaluation and that during the evaluation O.W. could either remain a student at Nottingham with a new teacher and a personal aide, or enroll at the School District's Turnaround Opportunities through Active Learning (TOTAL) program. O.W.'s parents agreed to enroll O.W. in TOTAL.
C. Development of IEP
While enrolled in TOTAL, O.W. was assigned a multidisciplinary team which included an LSSP, an educational diagnostician, and a speech-language pathologist. Following a brief delay to consider a February 2015 private report provided by O.W.'s parents, the team completed a Full Individual Evaluation (FIE) on February 24, 2015. Although a private report provided by O.W.'s parents diagnosed O.W. with autism, 5 the evaluation team rejected the diagnosis. The team determined O.W. was a "student with poor emotional and behavioral regulation" who suffers from an Emotional Disturbance.
On March 11, 2015, an Admission, Review and Dismissal Committee (ARDC)6 convened to consider the FIE and develop an IEP for O.W. Based on a Functional Behavior Assessment and consultation with O.W.'s parents, the ARDC developed a BIP. As explained by the district court, the BIP: focused on using positive behavioral approaches. For physical aggression (e.g., throwing objects, hitting, kicking, destroying school property), staff were to help O.W. learn replacement behaviors (e.g., removing himself to a cooling-off area, implementing deep breathing, calming sequences, stop and think). Additionally, staff were to avoid power struggles and arguments, and instead offer choices, frequent/movement breaks, and access to preferred activities. For verbal aggression (e.g., threats, profanity, obscene gestures, name calling), staff were to teach O.W. alterative phrases, avoid power struggles, allow frequent/movement breaks, provide access to preferred activities and a cooling-off area, and provide direct instruction on ways to verbalize...
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