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Spring Branch Independent School District v. O.W.

United States Court of Appeals, Fifth Circuit

September 16, 2019

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

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District Judge. [*]


         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 Ultimately, O.W. was withdrawn from school with three days remaining in the academic year.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.


         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, [2] 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 § 504[3] 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. That day, Ms. W. conferenced with Nottingham's principal regarding the images. Over the next few days, Ms. W. spoke often with Nottingham's principal and assistant principal, and 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, refusing to follow directions, leaving assigned areas without permission, sleeping excessively in class, 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. 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 the 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 suffered 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 discontent. Again, staff were to use calm interaction styles and minimize verbal interactions. For the behavioral problem of leaving the classroom, staff were to offer a visual schedule, clear rules, offer choices, frequent/movement breaks, provide access to preferred activities or a cooling-off area, and reinforce desired behaviors. Again, staff were to use a calm interaction style and redirect O.W. back to assigned areas, and remind him of his ability to access the cooling-off area. The IEP does not state that time-outs or restraints would be used as a tactic to address any of the above conduct.

         The ARDC and O.W.'s parents also agreed to enroll O.W. in an "adaptive behavior program" located at Ridgecrest Elementary School. O.W. enrolled at Ridgecrest on March 23, 2015. While at Ridgecrest, O.W. maintained passing grades in all his classes and passed all portions of the State of Texas Assessments of Academic Readiness.

         D. Implementation of IEP

         At Ridgecrest, when O.W. engaged in inappropriate conduct (known as "target behavior"), he was provided a "redirection," then a warning, then two warnings, and then directed to a desk (take-desk) in the classroom for a five-minute period (Take 5) or a ten-minute period (Take 10). During these periods, O.W. was given the opportunity to pursue replacement behavior, such as drawing. Disciplinary records show O.W. was placed in a Take 5 or Take 10 on sixteen of his forty days at Ridgecrest.

         In addition to the take-discipline, O.W. was physically restrained on eight occasions. Each instance of restraint was preceded by physical aggression by O.W. and attempts at de-escalation by Ridgecrest staff. On at least four occasions, Ridgecrest summoned police as a result of O.W.'s behavior. However, because O.W. often calmed down before the police arrived, it appears the police spoke with O.W. only once.

         On May 5, 2015, police were summoned to O.W.'s classroom after teachers attempted de-escalation (providing choices of alternative activities, verbal redirection, calming techniques, and reduced verbal interaction); O.W. repeatedly struck his teacher with a closed fist and then charged at her; and the teachers restrained O.W. Upon entering the classroom, the officer "stated to [O.W.] who was in charge, and [then] asked if he wanted to go to jail." The officer also asked if O.W. "remembered why he was in a cop car last time." After the interaction with police, O.W. "picked his ears until they were bloody and oozing," "chewed his shirt," and was unable to sleep or shower by himself.

         The day after the police intervention occurred, Ridgecrest faculty and Ms. W., without consultation with O.W.'s ARDC, agreed in writing that O.W.'s school day should begin at 9 a.m. instead of the normal 7:30 a.m. On May 18, 2015, school officials and Ms. W. agreed that O.W.'s school day should be shortened to three hours, from 9 a.m. until noon. The e-mail memorializing this agreement states, "this means a brief ARD [but] that he will begin the schedule tomorrow." Ultimately, at the suggestion of Dr. Powell-Williams, O.W. left Ridgecrest with three days left in the school year.

         E. Fusion Academy and Administrative Proceedings

         The following summer, O.W.'s parents enrolled him for tutoring at Fusion Academy, a private institution. Because O.W.'s parents and teachers noticed an improvement in O.W.'s behavior and performance, O.W.'s parents elected to enroll O.W. at Fusion for the 2015-2016 academic year. On August 14, 2015, less than ten days before the beginning of the School District's school year, O.W.'s parents informed the School District that O.W. would not be re-enrolling.

         O.W. attended Fusion for the 2015-2016 academic year, and enrolled at Fusion for the 2016-2017 academic year. However, on February 16, 2017, O.W. set fire to a school trash can. Due to this incident, O.W. was removed from school and O.W.'s parents were informed he would not be allowed to return until he received "intervention." Following his removal, the W.'s enrolled O.W. at Little Keswick, a residential school in Virginia.

         O.W.'s parents filed an administrative complaint against the School District on October 28, 2015. The complaint sought reimbursement for private school tuition, private placement, and other equitable relief. On February 23, 2016, O.W.'s parents filed an amended administrative complaint.[7] The parties appeared for an administrative hearing on May 24, 2016.

         On August 5, 2016, the hearing officer issued a decision in O.W.'s favor on four issues, finding that (1) the School District violated its child find obligation because it did not timely refer O.W. for a special education evaluation; (2) the School District failed to provide O.W. a free appropriate public education (FAPE) for the 2014-2015 academic year because it did not timely fulfill its child find duties, because it violated his IEP by placing him in school for only three hours a day, and because O.W., who was gifted and talented, was failing math; (3) the reduction of hours in May 2015 deprived O.W. of a commensurate school day; and (4) the School District failed to implement O.W.'s IEP because it used restraints, time-outs, and police intervention, and reduced O.W.'s school hours.

         Based on these findings, the hearing officer determined that O.W. was entitled to reimbursement from the School District for $50, 250 in tuition and tutoring for O.W.'s enrollment at Fusion for the 2015-2016 academic year, and that O.W. was entitled to a compensatory education award of tuition for Fusion for the 2016-2017 school year.

         F. District ...

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