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E. R. v. Spring Branch Independent School District

United States Court of Appeals, Fifth Circuit

November 28, 2018

E. R., by next of friend E. R.; S. R.; K. R., Plaintiffs - Appellants

          Appeal from the United States District Court for the Southern District of Texas USDC No. 4:16-CV-58

          Before JONES, BARKSDALE, and WILLETT, Circuit Judges.

          PER CURIAM.

         This 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.


         E.R. is 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.

         E.R. 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.

         E.R.'s 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 team").

         Concerning 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.

         About a 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 with E.R.

         SBISD 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".

         Frostwood 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.

         Frostwood's 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.

         During 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 her.

         Pye 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.

         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.

         SBISD 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.

         Pye 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".

         E.R. 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.

         By late 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.)

         In 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 facilitator.

         In 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 progressing.

         Additionally, 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 continued.

         In late 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.

         Pye resigned two days later. The principal employed a retired life-skills teacher to fill in temporarily.

         Not 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".

         E.R. 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.

         Contrary 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.

         On 16 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 education (FAPE).

         In 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.

         That 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.

         In 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.

         For 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 reimbursement.

         E.R. 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.

         In an 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.

         In a 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 ...

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