SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Plaintiff - Appellant
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
SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant
from the United States District Court for the Southern
District of Texas
HIGGINSON and WILLETT, Circuit Judges, and BROWN, District
M. BROWN, DISTRICT JUDGE
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 Ultimately, O.W. was withdrawn from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.
FACTUAL AND PROCEDURAL BACKGROUND
factual and procedural record in this case is extensive but
O.W.'s Early Education
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.
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.
Return to Nottingham
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 accommodations. Ms. W. also spoke with
O.W.'s teacher "to provide a little background"
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
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.
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.
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.
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. 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
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.
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.
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.
Development of IEP
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,  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.
March 11, 2015, an Admission, Review and Dismissal Committee
(ARDC) 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.
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.
Implementation of IEP
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.
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.
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.
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.
Fusion Academy and Administrative Proceedings
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.
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.
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. The parties appeared for an administrative
hearing on May 24, 2016.
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.
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.