E. R., by next of friend E. R.; S. R.; K. R., Plaintiffs - Appellants
SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee
from the United States District Court for the Southern
District of Texas USDC No. 4:16-CV-58
JONES, BARKSDALE, and WILLETT, Circuit Judges.
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, 137 S.Ct. 988 (2017);
and granting summary judgment to Spring Branch Independent
School District (SBISD). AFFIRMED.
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.
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.
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
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.
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
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".
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.
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.
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
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.
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.
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.
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".
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.
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.)
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
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
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
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 advised the attendees he would follow up
with E.R.'s father.
resigned two days later. The principal employed a retired
life-skills teacher to fill in temporarily.
having heard from SBISD following the December ARDC meeting,
E.R.'s father sent it a letter on 5 January 2015, the day
before classes began. He complained, inter alia,
about the lack of communication, the conditions at Frostwood,
and E.R.'s progress there; and he informed the school he
would both pursue a private education for E.R. and commence
"filing . . . a complaint and request for investigation
with the Texas Education Agency".
attended only Frostwood's first week of classes in
January 2015. Although E.R.'s father testified, before
the hearing officer, that the substitute teacher during that
week was "very experienced", E.R.'s father
informed SBISD, by an 11 January email, that he was
withdrawing E.R. from Frostwood. He cited the lack of a
certified teacher who would be available the next day for
class. E.R.'s parents signed a contract with Briarwood, a
private school located 12 to 13 miles from E.R.'s home,
which E.R. began attending on 12 January.
to E.R.'s father's testimony before the hearing
officer, describing the transfer to Briarwood as an
"emergency", it was neither sudden, nor unplanned.
E.R.'s parents had applied for E.R.'s admission to
Briarwood in November 2014, stating on the application that a
private school would be better for E.R. E.R.'s father
expressed his admiration for Briarwood in an email to a
Briarwood employee that month. E.R. and her parents had
visited the school in early December, before the ARDC
meeting, and E.R. had again visited Briarwood, before
starting there, in early January 2015.
January, E.R.'s father provided SBISD with the ten-day
notice (although belated), required by 20 U.S.C. §
1412(a)(10)(C)(iii) ("The cost of reimbursement . . .
may be reduced or denied . . . if . . . 10 business days . .
. prior to the removal of the child from the public school,
the parents did not give written notice to the public
agency".). The notice stated: E.R. would no longer
attend Frostwood and opted for Briarwood; and SBISD had
denied E.R. the IDEA-required free appropriate public
February 2015, E.R.'s parents made their first request
for an IDEA due-process hearing, requesting, inter
alia, tuition reimbursement for Briarwood following
"[a] finding that [E.R.] ha[d] been denied a FAPE during
the 2014-2015 school year and that Briarwood . . . [was] an
appropriate placement". See generally id.
§ 1415 (describing the procedural safeguards afforded to
children covered by IDEA). A failed attempt at resolution
took place later that month.
July, after noting the lack of an IEP for the 2015-16 school
year, E.R.'s attorney gave SBISD notice E.R. would stay
at Briarwood for the 2015-16 school year, and stated SBISD
was required to reimburse the cost of tuition for Briarwood
for that school year as well. That same month, E.R.'s
parents filed their second request for a due-process hearing.
response to E.R.'s attorney's July notice, SBISD held
an ARDC meeting in August to discuss a new IEP for E.R. for
the 2015-16 school year; E.R.'s parents rejected the
decisions made. The minutes reflect: by the end of the
meeting, "[E.R.'s attorney] indicated that the
parents [did] not feel that [E.R. was] receiving [a]
FAPE"; the parents requested tuition reimbursement for
private school; one of them "declined" to reconvene
the ARDC; and their attorney gave a "written statement
of disagreement". E.R. continued attending Briarwood.
three days in September 2015, a hearing officer heard
evidence on E.R.'s two due-process complaints; by
alleging numerous failures on the part of SBISD, both
contend, at bottom, that SBISD denied E.R. a FAPE. E.R. had
the benefit of counsel. The hearing officer heard the
testimony of 15 witnesses and admitted nearly 1, 700
exhibits. E.R., ex rel. S.R. & K.R. v. Spring Branch
Indep. Sch. Dist., No. 4:16-CV-0058, 2017 WL 3017282,
*10 (S.D. Tex. 15 June 2017), adopted by 2017 WL
3016952 (S.D. Tex. 14 July 2017). The hearing-officer's
decision that October was in favor of SBISD on all issues,
including that Briarwood was not an appropriate
placement. As a result, E.R. received no tuition
filed this action in January 2016, seeking, inter
alia, reimbursement for the private-school tuition. Both
sides moved for summary judgment, and the district court
referred the cross-motions to a magistrate judge.
exhaustive and insightful 74-page report and recommendation
in June 2017, the magistrate judge carefully considered the
evidence and the parties' contentions. See generally
E.R., 2017 WL 3017282. In doing so, the magistrate judge
considered recent Supreme Court precedent, Endrew
F., in the well-reasoned report and recommendation.
Id. at *13, *29-30, *33-34. The magistrate judge
recommended the district court grant summary judgment to
SBISD, concluding, inter alia, that E.R. received a
FAPE and was not entitled to private-school-tuition
reimbursement. Id. at *35. For the reasons provided
infra, the magistrate judge did not address whether
Briarwood was an appropriate placement. Id. at *35.
one-page order on 14 July 2017, the district court stated it
had considered the applicable law, the report and
recommendation, and E.R.'s objections, including
reviewing de novo the recommendations to which those
objections had been made; it ...