                                REVISED

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                            No. 96-20221



CYPRESS-FAIRBANKS INDEPENDENT
SCHOOL DISTRICT,


                                            Plaintiff-Appellee

                                versus


MICHAEL F. b/n/f/ MR. AND
MRS. BARRY F.,


                                            Defendants-Appellants.



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



                            July 15, 1997


Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

     Defendants-Appellants Michael F., by his next friend and

parents, Mr. and Mrs. Barry F., (“Michael’s parents”) appeal from

the final judgment of the district court in favor of Plaintiff-

Appellee Cypress-Fairbanks Independent School District (“Cy-Fair

ISD”).   The action arose when Michael’s parents, invoking the
Individuals    with   Disabilities       Education       Act    (“IDEA”),1     sought

reimbursement from Cy-Fair ISD for the costs they incurred in

placing their disabled child, Michael, in a full-time private

residential education and treatment facility.                  The school district

refused     Michael’s      parents’          request,     and      they      appealed

administratively to the Texas Education Agency (“TEA”), whose

hearing   officer     ordered    reimbursement,          finding      that   (1)   the

educational      program   crafted    for      Michael    by    Cy-Fair      ISD   was

inappropriate under the IDEA, and (2) Michael’s placement at a

specialized      private   residential         school     by    his    parents     was

appropriate.      After conducting further fact finding, the district

court reversed the hearing officer’s decision and also awarded

costs to the school district.                Concluding on the basis of the

entire administrative and judicial record that the district court

committed   no    reversible     error       when   it   reversed      the   hearing

officer’s     decision,     we    affirm        the      court’s       decision     on

reimbursement, but modify in part its award of costs to the school

district and affirm that award as modified.

                                         I

                                 BACKGROUND




      20 U.S.C. § 1400 et seq. (1997). We note that the IDEA was
recently amended by Congress. See Individuals with Disabilities
Education Act Amendments of 1997, P.L. No. 105-17, June 4, 1997, 11
Stat. 37. As all of the events giving rise to this action occurred
before the enactment of the amendments, however, we need not
consider their effect in this appeal.

                                         2
A. Statutory Framework of the IDEA

     Being a local educational agency responsible for complying

with the IDEA as a condition of the State of Texas’ receipt of

federal education funding, Cy-Fair ISD must (1) provide each

disabled child within its jurisdictional boundaries with a “free

appropriate public education” tailored to his unique needs,2 and

(2) assure that such education is offered, to the greatest extent

possible, in the educational “mainstream,” that is, side by side

with non-disabled children, in the least restrictive environment

consistent     with   the    disabled       student’s   needs.3       The   “free

appropriate public education” that a disabled student is entitled

to receive under the IDEA must be tailored to his particular needs

by means of an “individual educational program” (“IEP”), a written

statement    prepared       at   a   meeting    attended    by    a   qualified

representative of the school district, a teacher, the child’s

parents or guardians, and, when appropriate, the child himself.4

In Texas, the persons charged with preparing an IEP are known

collectively as an Admissions, Review and Dismissal Committee (“ARD

Committee”).

     The “free appropriate public education” tailored by an ARD

Committee and described in an IEP, however, need not be the best


     20 U.S.C. §§ 1400(c) and 1412(1); Teague Indep. Sch. Dist. v.
Todd L., 999 F.2d 127, 128-29 (5th Cir. 1993).

      Id.; 20 U.S.C. § 1412(5).

      20 U.S.C. § 1401(20).

                                        3
possible one, nor one that will maximize the child’s educational

potential;     rather,   it     need       only   be     an     education    that    is

specifically designed to meet the child’s unique needs, supported

by   services    that    will    permit         him    “to     benefit”     from    the

instruction.5    In other words, the IDEA guarantees only a “basic

floor of opportunity” for every disabled child, consisting of

“specialized     instruction         and       related        services    which     are

individually     designed       to     provide           educational        benefit.”6

Nevertheless, the educational benefit to which the Act refers and

to which an IEP must be geared cannot be a mere modicum or de

minimis;7    rather, an IEP must be “likely to produce progress, not

regression or trivial educational advancement.”8                     In short, the

educational benefit that an IEP is designed to achieve must be

“meaningful.”9

     When a parent or guardian challenges the appropriateness of an

IEP crafted by a state or local education agency and the resulting

educational placement, a reviewing court’s inquiry is generally


        Bd. of Educ. of the Hendrick Hudson Central Sch. Dist.,
Westchester County v. Rowley, 458 U.S. 176, 188-89 (1982).

      Id. at 201.

      Oberti v. Board of Educ. of Borough of Clementon Sch. Dist.,
995 F.2d 1204, 1213 (3rd Cir. 1993).

        Board of Educ. of East Windsor Regional Sch. Dist. v.
Diamond, 808 F.2d 987, 991 (3rd Cir. 1986).

      Polk v. Central Susquehannna Inter. Unit 16, 853 F.2d 171,
182 (3rd Cir. 1988), cert. denied, 488 U.S. 1030 (1989); see also
Rowley, 458 U.S. at 192.

                                           4
twofold.    It must ask first whether the state or local agency

complied with the procedures set forth in the Act, and if so

whether “the individualized educational program developed through

the Act’s procedures [was] reasonably calculated to enable the

child to receive educational benefits?”10       In those instances when

a suitable or “appropriate” public educational placement is not

available for a disabled child within a state or local school

district, the district must pay the costs of sending the child to

an appropriate private institution.11

     In School Comm. of Town of Burlington, Mass. v. Department of

Educ. of Mass.,12 the Supreme Court held that a reviewing court may,

in the exercise of the equitable authority granted to it under the

IDEA, order public school authorities to reimburse parents or

guardians of a disabled child for their expenditures on private

schooling when they unilaterally remove the child from public

education   and   place   the   child   in   private   schooling.   But

reimbursement may be ordered in such situations only if the parents

or guardians establish that (1) an IEP calling for placement in a

public school was inappropriate under the IDEA, and (2) the private




      Id. at 201.

       Jenkins v. Squillacote, 935 F.2d 303 305 (D.C. Cir. 1991)
(citing School Comm. of Town Burlington, Mass. v. Dep’t of Educ. of
Mass., 471 U.S. 359, 369 (1985)); Alamo Heights Indep. Sch. Dist.
v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986).

      471 U.S. 359, 369 (1985).

                                    5
school placement by the parents was proper under the Act.13       If the

reviewing court determines that the school district’s IEP was

appropriate, it need not reach the issue of the appropriateness of

the private placement by the parents.14

B. Particular Facts and Proceedings

     At an early age, Michael F. was diagnosed with, and began to

receive medication for, Attention Deficit Hyperactivity Disorder

(“ADHA”).   Based on this condition, Michael was classified as

“other   health   impaired”   and   was   thus   entitled   to   receive

educational services under the IDEA from Cy-Fair ISD after he and

his family moved there in the summer of 1992.

     Michael enrolled as a sixth grader at Cy-Fair ISD’s Hamilton

Intermediate School (Hamilton) for the 1992-93 school year. During

this school year, Michael was diagnosed with Tourette’s Syndrome

(“Tourette’s”), a neurological or psychiatric behavior disorder

typified by involuntary motor and vocal ticks.       Michael’s case of

Tourette’s is manifested by symptoms of (1) hyperactivity and

decreased attention, (2) obsessive compulsive behavior, (3) rapid

mood swings, and (4) ticks and twitches.

     Acting through an ARD Committee convened in August 1992, Cy-


        Id. at 370; see also Florence County Sch. Dist. Four v.
Carter, 114 S.Ct. 361, 366 (1993). Reimbursement will be permitted
under Burlington when unilateral placement by parents is generally
found to be appropriate, even though it is not “the exact proper
placement required under the Act.”    Alamo Heights, 790 F.2d at
1161.

      Teague, 999 F.2d at 132.

                                    6
Fair ISD instituted a provisional IEP for Michael’s 1992-1993

school year at Hamilton.      Under this initial IEP, Michael attended

regular classes and had access to a “content mastery class.”          In

October of 1992, the ARD Committee supplemented Michael’s IEP with

a   “behavioral    plan,”    under   which   Michael’s   teachers   could

discipline him with “time-out” and “cooling off” periods when he

became agitated, send him to counseling sessions with the assistant

principal, or send him to special discipline management classes.

Michael’s parents approved both the initial IEP and the October

behavioral plan.

     Michael’s deportment problems ebbed and flowed throughout the

1992-93 school year.        During the fall semester, his misbehavior

consisted mainly of relatively minor disruptions such as yelling

inappropriately on the bus and in class, calling other students and

himself gay, touching students on the legs in a sexual way, talking

back to his teacher, licking his books and papers in class, one

scuffle, and one fight.         This behavior landed Michael in the

principal’s office, detention hall, or discipline management class

on numerous occasions and also resulted in several temporary

suspensions from the school bus.

     Beginning in January of 1993, however, when Michael was first

diagnosed with Tourette’s and his medications were juggled in an

attempt to reduce the severity of his Tourette’s’ symptoms, his

behavior worsened.    Not only did he continue to disrupt class and

cause trouble elsewhere in the school environment, but Michael

                                     7
increasingly became involved in fights, and on February 15 and 17

—— just when a powerful and potentially beneficial drug with strong

side effects was being introduced into Michael’s medication regimen

—— his temper flared in two physically violent episodes.                    As a

result of these episodes, Michael was removed from school on an

emergency   basis    and   faced     possible   expulsion    until    the    ARD

Committee   determined,     after      receiving   reports   from    Michael’s

attending psychiatrist and psychologist, that Michael’s misbehavior

was   directly   related    to   his    disability.     Agreeing     with    the

recommendation      of   Michael’s     psychiatrist,   the   ARD     Committee

assigned Michael to a homebound placement for approximately six

weeks so that his doctors could complete medication trials and

stabilize his medical treatment, after which the Committee could

reevaluate Michael’s IEP.

      Just before Michael’s outburst of physically violent behavior

in mid-February, however, the ARD Committee had resolved that

Michael’s needs would be better addressed with a more consistent

behavioral structure throughout the day. It had, therefore, placed

him in a self-contained, adaptive behavior classroom for three

subjects (English/Language Arts, Math, and Social Studies),15 while

leaving him in regular education classes for Science and Physical



      An adaptive behavior class is specifically designed to help
students learn to control inappropriate behavior.      The student
stays in the same classroom for several subjects, and a level point
structure is used which enables students to gain rewards throughout
the class period by exhibiting appropriate behavior.

                                        8
Education (“P.E.”)   The ARD Committee also supplemented Michael’s

program by providing him with a social behavior curriculum in his

adaptive behavior classes, psychological counseling services, and

a discipline contingency plan.

     When Michael returned to Hamilton on April 2, he was again

placed in a slightly expanded version of the adaptive behavior

program that he had only briefly begun in mid-February.   Michael’s

disruptive and aggressive behavior continued more or less unabated

for the remainder of the school year, resulting in several short

suspensions, including one for the last two days of school after he

announced in class that he was going to kill his mother, spat in a

student’s face, hit the student, and directed obscene language at

his teacher.

     When the ARD Committee convened on May 26, 1993 to review

Michael’s situation and plan for the next school year, it learned

that Michael was passing all of his courses and had made progress

towards achieving all of the academic goals listed in his IEP, but

had not yet achieved mastery in any academic area except for

general science.     On the deportment front, Michael’s adaptive

behavior teacher noted that Michael was able to refocus after

incidents of misconduct.   Largely at the insistence of his parents

who feared that his continued exposure, in adaptive behavior

classes, to other children with emotional and behavioral problems

would harm Michael, the ARD Committee determined that Michael could

be placed in the regular education program at his local junior high

                                 9
school for the 1993-94 school year.          Michael’s parents and the ARD

Committee hoped that the combined effect of a new school, the

intervening    summer   recess,    and     attention    to    medication   would

improve Michael’s behavior. Michael’s IEP for the impending school

year, however, still included a number of support services and

plans   specifically    designed     to     address    Michael’s     behavioral

problems.      Among these were a discipline contingency plan for

teachers to use in dealing with Michael’s conduct, a behavioral

intervention plan, psychological counseling services, a tracking

teacher to monitor Michael’s progress, and a handpicked team of

teachers who were to receive training on how to cope with Michael’s

disabilities and behavior.          At the conclusion of the meeting,

Michael’s parents signed the Committee’s report, noting their

agreement with the IEP and Michael’s placement for the 1993-1994

school year.

     Over the summer, Michael’s behavior at home deteriorated to

the point that in late July his parents considered following his

psychologist’s advice and hospitalizing him or placing him in a

summer program at a residential treatment center.                But Michael’s

parents ultimately chose to keep him at home for the duration of

the summer.

     In August 1993, Michael began seventh grade at Cy-Fair ISD’s

Bleyl Junior High School (“Bleyl”).            During his first month of

school,   he   continued   to     disrupt    class     with   some   frequency,

exhibited disrespect for and even directed insults at authority on

                                      10
occasion, and several times became entangled in fights.                     His

misbehavior   resulted   primarily      in   “time-outs,”       detention   hall

assignments and “cooling off” sessions at the assistant principal’s

office, but on three occasions he was sent home from school for the

rest of the day.

      In light of these continuing behavioral problems, the ARD

Committee convened a meeting on October 4, 1993, which was attended

by   Michael’s    parents,    the   chairman   of   the   Special    Education

Department at Bleyl, a psychologist from the school district who

had worked with Michael, an educational diagnostician from the

school district, the assistant principal at Bleyl responsible for

Michael,    and   Michael’s    tracking    teacher.       The   Committee   was

informed that, although Michael was passing every course but one

and was receiving satisfactory conduct marks in every class but

two, he was having difficulty turning in homework assignments in

the majority of his courses and was still experiencing behavioral

problems.    The Committee therefore altered Michael’s IEP, placing

him in adaptive behavior classes for Math, English/Language Arts,

and Texas History and leaving him in regular education classes for

Science, Reading, Industrial Technology, Speech, and P.E.                   The

Committee also determined that Michael was eligible for an optional

content mastery class and modified his discipline contingency plan

by providing teachers with the option of sending Michael to a

discipline management class for the remainder of a class period, as

opposed to an emergency removal from class, when his misbehavior

                                      11
escalated.      Once again, Michael’s parents approved the IEP that

resulted from this meeting.

     On the very next day of school, however, before he had even

begun the    new     adaptive    behavior     program   designed   by   the   ARD

Committee, Michael got in a fight with a girl in class and, before

the fight was broken up, had pinned the girl to the floor with his

knee and pulled out some of her hair.                   As a result of this

incident, Michael was “emergency removed” for the remainder of that

school day and the next day.             Michael’s parents perceived this

incident as a serious escalation of Michael’s behavioral problems

and therefore renewed their previous consideration of alternative

placements     for    Michael,    including     a   residential     psychiatric

institution.

     On October 7, 1993, Michael began his partial placement in

adaptive behavior classes. He continued to misbehave on the school

bus, disrupt classes on occasion, and in a few instances refuse to

suit up   for    P.E.,   all     of   which   necessitated   “time-outs”      and

“cooling off” sessions with the assistant principal.                Still, his

physical aggression from this date forward until his removal from

Bleyl consisted of but a single scuffle in P.E.                    Furthermore,

during the remainder of his time at Bleyl, he was only emergency

removed from school once, for half a day, after refusing to take

medication and being disrespectful to a school nurse.               On his own

volition, Michael later apologized to the nurse for his behavior.

Throughout this period, Michael ate lunch in the school cafeteria

                                        12
unattended and passed through the school hallways without being

escorted by school staff.

      Michael’s academic performance during his final month at Bleyl

was inconsistent but far from hopeless.            A progress report issued

on October 26 for the first nine weeks of school indicated that

Michael was failing or had incompletes in all but one subject.

Nevertheless, Michael’s final report card from Bleyl, issued in

November after he was removed by his parents, reflected that

Michael had turned in previously incomplete assignments and was

again   passing   in   his    three    adaptive    behavior   classes     (Math,

English/Language Arts, and Texas History) and in one other academic

course (Industrial Technology), was close to passing in two others

(Reading    and   Science),    and    was   only   clearly    failing    in   one

(Speech).    As discussed more fully below, Michael’s teachers and

the   assistant    principal    have    offered    sensitive    and     detailed

assessments of his academic and behavioral performances during his

enrollment of approximately two months at Bleyl.

      Michael’s parents removed him from Bleyl and Cy-Fair ISD on

November 4, 1993.      On November 8, he was admitted to the Provo

Canyon School (“Provo Canyon”), a 24-hour residential treatment

center located in Provo, Utah.          Michael remained at Provo Canyon

until February 11, 1994, when his parents brought Michael back home

because they could no longer afford the private institution.16


      Provo Canyon School is approved by the Utah State Board of
Education, the California State Board of Education, the Wyoming

                                       13
     Meanwhile, on November 18, 1993, an ARD Committee meeting had

been convened to consider Michael’s parents’ request that Cy-Fair

ISD approve Michael’s placement at Provo Canyon and reimburse them

for the costs of the placement.           The ARD Committee modified

Michael’s IEP slightly, in absentia, by deleting Speech class from

his curriculum and substituting a “social behavior” class and by

deleting the requirement that he change clothes for P.E.           But the

Committee did not accede to Michael’s parents’ request that the

school district approve Michael’s educational placement at Provo

Canyon and reimburse them for the costs of this placement.               The

Committee concluded that his partial placement in the adaptive

behavior classroom at Bleyl was the least restrictive environment

in which he could receive an appropriate public education under the

IDEA.

     As was their right under the IDEA,17 Michael’s parents sought

review of    the   school   district’s   denial   of   their   request   for

reimbursement in an impartial due process hearing before the TEA.

A TEA hearing officer conducted eleven days of hearings in April

1993 and, in a lengthy opinion issued on June 17, 1994, found that

(1) the IEPs developed by Cy-Fair ISD for Michael’s 1993-1994

school year were inappropriate, (2) Michael’s placement at Provo

Canyon was appropriate, and (3) Michael’s parents were therefore


State Board of Education,          and    the     Joint   Commission     for
Accreditation of Hospitals.

        See 20 U.S.C. § 1415(b)(2).

                                   14
entitled to reimbursement from Cy-Fair ISD for the $15,978.20 costs

of the educational and related services (but not the medical

services) Michael received at Provo Canyon.

     The school district in turn exercised its prerogative under

the IDEA and appealed this decision to the United States District

Court for the Southern District of Texas.18 After a one day hearing

in which it received additional evidence, the district court

reversed the hearing officer’s decision,19 and, in a separate order,

awarded $6,770.05 in costs to the school district as a matter of

course   under   Rule   54(d)(1).20        Michael’s   parents   have   timely

appealed from the district court’s final judgment and its order

awarding costs.



                                      II

                                 ANALYSIS

A. Standard of Review

     When   a    federal   district   court     reviews   a   state     hearing

officer’s decision in an impartial due process hearing under the

IDEA, the court must receive the record of the administrative

proceedings and is then required to take additional evidence at the




      See 20 U.S.C. § 1415(e)(2).

      931 F.Supp. 474 (S.D. Tex. 1995).

      Id. at 482-84.

                                      15
request of any party.21    Although the district court must accord

“due weight” to the    hearing officer’s findings,22 the court must

ultimately reach an independent decision based on a preponderance

of the evidence.23    Accordingly, the district court’s “review” of

a hearing officer’s decision is “virtually de novo.”24      Indeed,

given its adducing of new evidence, even evidence of matters that

have occurred since the administrative hearing under review, the

district court proceeding under the IDEA is a hybrid, akin to a

“trial de novo.”

     We, in turn, review de novo, as a mixed question of law and

fact, a district court’s decision that a local school district’s

IEP was or was not appropriate and that an alternative placement

was or was not inappropriate under the IDEA.25 The district court’s

findings of underlying fact, such as findings that a disabled

student obtained educational benefits under an IEP, are reviewed

for clear error.26    Finally, we note that in this circuit a party

attacking the appropriateness of an IEP established by a local



      20 U.S.C. § 1415(e)(2).

      Rowley, 458 U.S. at 206.

      20 U.S.C. § 1415(e)(2); Teague, 999 F.2d at 131.

      Id.

      Id.; Christopher M. v. Corpus Christi Indep. Sch. Dist., 933
F.2d 1285, 1289 (5th Cir. 1991)); see also Salley v. St. Tammany
Parish School Bd., 57 F.3d 458, 462 (5th Cir. 1995).

      Teague, 999 F.2d at 131; Christopher M., 933 F.2d at 1289.

                                 16
educational agency bears the burden of showing why the IEP and the

resulting placement were inappropriate under the IDEA.27

B. The Appropriateness of the IEP’s

     As   it    is    undisputed     that   Cy-Fair   ISD   complied       with    the

procedural requirements of the IDEA in drafting and implementing

Michael’s IEP’s, Michael’s parents may only recover the costs they

incurred in unilaterally placing Michael at Provo Canyon if they

establish that (1) the IEPs in effect at the time that Michael was

removed from Cy-Fair ISD and was in residence at Provo Canyon ——

namely the October 4, 1993 and November 18, 1993 IEPs —— were not

reasonably      calculated     to    provide    Michael     with    a    meaningful

educational benefit, and (2) the parents’ placement of Michael at

Provo Canyon was appropriate under the IDEA.

     1. The TEA Hearing

     In his carefully written decision, the TEA hearing officer

articulated three primary reasons why the IEP in effect at the time

Michael was removed from Cy-Fair ISD (the October 4, 1993 IEP) was

not reasonably calculated to enable Michael to receive educational

benefits.      First, despite his recognition that the earlier IEPs

developed      by    Cy-Fair   ISD   for    Michael’s     1992-93       school    year

represented appropriate interim steps designed to benefit Michael

based on the facts and information available at that time, the



     Id. at 1291; Alamo Heights, 790 F.2d at 1158 (citing Tatro v.
Texas, 703 F.2d 823, 830 (5th Cir. 1983), aff’d in part and rev’d
in part, 468 U.S. 883 (1984)).

                                           17
hearing officer found that these IEP’s had not proven successful in

managing Michael’s behavior.     Consequently, because the October 4,

1993 IEP replicated the primary tools of the previous year’s

inadequate programs (namely, the adaptive behavior classes and

behavior management and discipline contingency plans), the October

4, 1993 plan was inappropriate. The hearing officer supported this

initial finding by (1) characterizing Michael’s behavior during his

time at Bleyl, both before and after the implementation of the

October 4, 1993 IEP, as “extreme, outrageous, and dangerous,” and

(2) noting that his behavior included examples of oral and physical

abuse of his teachers, school administrators, and other students.

Second, the hearing officer found that the absence of a meaningful

educational benefit was further exemplified by Michael’s generally

low self-esteem and by the fact that his October 26, 1993 progress

report   reflected   that   he   was    either   failing   or   receiving

incompletes in all of his subjects.       Finally, the hearing officer

determined that (1) Michael’s presence in regular classrooms was so

disruptive that it impaired the education of other students, thus

indicating that his needs could not be met in the regular education

environment,28 and (2) his behavior did not improve when he was

placed in the adaptive behavior classes but continued to occur with

the same frequency and level of severity in both his regular

classes and his adaptive behavior classes.        Taking all this into


      See Daniel R.R. v. State Board of Educ., 874 F.2d 1036, 1049
(5th Cir. 1989) (quoting 34 C.F.R. § 300.552 Comment).

                                   18
consideration, the hearing officer concluded that the only way

Michael    could    learn   to   control      his   impulsive        and   aggressive

behavior    and    therefore     gain   an     educational          benefit   without

significantly disrupting others was if he were placed in a highly

structured, 24-hour residential treatment facility.

      2. The District Court Proceeding

      The district court did not attempt to refute or discredit each

of the hearing officer’s findings in support of his conclusion that

the   school      district’s     educational        program    for     Michael    was

inappropriate.      Instead, following the expert opinion of Christine

Salisbury, Ph.D., an educator with considerable experience in the

development of educational programs for disabled children, the

court posited that there are four factors that can serve as

indicators of whether an IEP is reasonably calculated to provide a

meaningful educational benefit under the IDEA.29 These are: (1) the

program is individualized on the basis of the student’s assessment

and performance; (2) the program is administered in the least

restrictive    environment;       (3)   the    services       are    provided    in   a

coordinated and collaborative manner by the key “stakeholders”; and

(4) positive academic and non-academic benefits are demonstrated.

As there is little doubt that Michael’s October 1993 IEP (a) was


        Cy-Fair ISD notes that Dr. Salisbury’s four factors are
derived from and track the federal regulations which implement the
IDEA. See 34 C.F.R. §§ 300.346(a) and 300.531-2 (assessment); 34
C.F.R. §§ 300,500 (least restrictive environment); 34 C.F.R. §
300.343-345   (team   approach);  and   34   C.F.R.  §   346(a)(5)
(demonstrated outcomes).

                                        19
designed with his specific behavioral and academic problems in

mind, (b) placed him in educational settings with non-disabled

students for at least half of every school day, and (c) involved

both Michael’s individual teachers and Cy-Fair ISD administrators

and counselors familiar with his needs in a highly coordinated and

collaborate effort, the court had no difficulty concluding —— and

neither do we —— that the first three hallmarks of an appropriate

IEP were present.

      As for the fourth factor —— demonstrable academic and non-

academic benefits —— the district court concluded that Michael’s

passing grades at the time he left Bleyl to attend Provo Canyon and

his ability to attend lunch and pass through the halls between

class   unaccompanied    by   school     staff   constituted   significant

academic and non-academic benefits achieved by the IEP.            We agree

that these objective indicia of educational benefit identified by

the district court are significant, and we find further support for

the district court’s conclusion that the October 1993 IEP was

reasonably calculated to, and in fact did, produce more than a

modicum of educational benefit for Michael in the opinion of those

individuals who had the most immediate knowledge of his performance

during his enrollment at Bleyl —— the teachers who worked with him

on   a daily   basis,   the   assistant    principal   who   was   primarily

responsible for administering Michael’s discipline plan, and the

school psychologist who counseled Michael during this period.



                                    20
     3. Additional Evidence of Educational Benefit

     Although we cannot recount in detail all of observations of

these individuals whose professionalism and concern for Michael was

clearly evident in their lengthy testimony before the hearing

officer,   the    following      highlights     of   that     testimony    are

particularly     illuminating.      First,    Laurie   Fowlkes,       Michael’s

Science teacher, testified that Michael was generally “on task,”

demonstrated enthusiasm by volunteering for assignments, often

controlled his own behavior when he began to get agitated during

lab work by asking for permission to sit down and then putting his

head on his desk, and would likely have earned a grade of B or a

high C in her class if he had not left Bleyl.               Second, Franklin

Finch, Michael’s Industrial Technology teacher, testified that

Michael worked well in small groups, was “on task” 99.9 percent of

the time, never demonstrated inappropriate behavior except on his

last day in class, and was, in Finch’s opinion, trying to keep

behavioral problems in check and seeking reassurance in these

efforts.    Third,    Leona   W.   Henry,     Michael’s     Reading   teacher,

observed Michael’s behavior to be typical of adolescent boys in her

class, noted that on the few occasions that warnings or time-outs

were required Michael subsequently settled down, and stated that

she fully expected that Michael would have passed had he remained

in her class.

     Perhaps the most important of all Michael’s teachers at Bleyl



                                     21
was Michael Donnelly, an experienced member of the school’s Special

Education department who served as Michael’s “tracking teacher” in

August and September and taught Michael’s adaptive behavior classes

in October and early November.            Donnelly testified that, during

Michael’s   stay    in   his   adaptive    behavior    classroom,   Michael’s

ability to respond to Donnelly as a teacher and carry on a mature

conversation improved.         Donnelly further observed that Michael

increasingly    controlled      his   urges    to     interrupt   class   with

inappropriate comments and behavior.          Donnelly also noted that, at

the time Michael’s parents removed him from Bleyl, he was earning

passing grades in all three academic subjects taken in the adaptive

behavior classes (Math, Language Arts, and Texas History).                Based

on all of this, Donnelly believed that the adaptive behavior

classes constituted an appropriate placement for Michael because he

appeared to be “buying into the system”; Donnelly and Michael had

established a “good rapport”; and neither Donnelly nor anyone else

at Bleyl felt endangered by Michael’s presence.

     Equally impressive in his faith in Michael’s gradual but

steady progress under the school district’s IEP was Robert Fowler,

the assistant principal at Bleyl who was primarily responsible for

administering      Michael’s     behavior     management    and     discipline

contingency plans and whose office Michael visited on numerous

occasions. Fowler first pointed out that the frequency of the need

for severe disciplinary responses to Michael’s behavioral problems

(i.e., emergency removal) dropped dramatically after Michael’s

                                      22
placement in the adaptive behavior classes under the October IEP.

Fowler also reported that he (1) enjoyed “a very good rapport” with

Michael, (2) saw a decrease in physically aggressive and otherwise

disruptive behavior after Michael was placed in the adaptive

behavior classes, (3) was aware of many instances in which the

discipline contingency plan worked as intended, that is, Michael

successfully returned to work after an in-class “time-out,” a

session in his office, or a discipline management class, (4)

observed some very encouraging instances of Michael’s putting

himself    into   “time-out”   or   taking     himself     to   the   assistant

principal’s office and subsequently regaining his composure, (5)

rated Michael’s misbehavior as no more severe than other regular

education students he saw frequently in his office, (6) found

Michael’s resistance to “dressing-out” for gym class to be typical

of young students confronted with this requirement for the first

time, which resistance was remedied under the November 18 IEP, and

finally (7) did not believe that Michael posed a danger to students

or staff at Bleyl.

     Kenneth Greer, Ph.D., a psychologist with Cy-Fair ISD who was

knowledgeable about Tourette’s and had worked with approximately

twenty    Tourette’s-afflicted      students    in   the   school     district,

authored a detailed report about Michael and testified about

Michael’s experience in the school district, based on Greer’s

direct observation of Michael in counseling sessions and other

data.     In general, Greer reported that (1) the adaptive behavior

                                     23
classes at Bleyl had lessened the frequency and intensity of

Michael’s misbehavior, in consequence of which his disciplinary

referrals had decreased, (2) Michael’s initial placement in regular

classes at Bleyl was made largely at the request of his parents,

(3) Michael was much more cooperative in counseling sessions from

the very beginning of his placement at Bleyl, (4) despite his

impulse control problems, Michael never posed a threat to others or

a danger to the school, and (5) in Greer’s view, Michael appeared

to trust Mr. Fowler, the assistant principal, as someone with whom

he could converse and who provided a safe harbor for him in the

school environment.

     Finally, we would be remiss if we failed to note the thorough

testimony at the district court hearing of Bernard Rosenberg, M.D.,

Michael’s attending psychiatrist in early 1993.        A board certified

psychiatrist with extensive clinical experience treating children

with Tourette’s, Rosenberg testified that a placement in adaptive

behavior classes for part of the school day is generally the most

appropriate one for a student with Tourette’s, and, in Michael’s

case, was particularly appropriate given the average severity of

his symptoms and his relative success in his other classes at

Bleyl.   By contrast, a 24-hour residential psychiatric placement,

Rosenberg   testified,   would   be    inappropriate   because   it   would

deprive Michael of the opportunity to learn to get along with other

children and because, in Rosenberg’s view, Michael did not pose a

danger to himself or others.

                                      24
      In sum, the testimony of all of these individuals who had

direct and frequent contact with Michael both in and outside the

school     setting   provides     substantial     support       for    the    district

court’s determination that the October 4, 1993 IEP was reasonably

calculated to, and in fact did, produce meaningful educational

benefits both academically and behaviorally.                    In addition, their

testimony     supports    the    court’s      rejection    of    the    TEA   hearing

officer’s assumption that the school district’s replication of some

of the educational tools briefly used during the 1992-93 school

year was inappropriate in the context of the 1993-94 academic year.

First, Michael’s participation in the adaptive behavior classes at

Hamilton was limited to the last two months of his sixth grade

year.      As Dr. Rosenberg explained, this period had followed a

series of trying and ultimately unsuccessful attempts to modulate

Michael’s medications and a six-week homebound placement, events

that undoubtedly disrupted the progress and structure of Michael’s

schooling.     Second, Michael’s placement in regular classes at the

beginning of the 1993-94 school year reflected a choice primarily

made by Michael’s parents.         Third, and most importantly, Michael’s

experience at Bleyl, albeit too brief for a definitive assessment

of   its    success,     was    unique   and     clearly    showed       a    pattern,

particularly once he was switched into the adaptive behavior

classes,     of   increasingly      more      self-controlled          behavior    and

respectable, although not always consistent, academic success.

Given all this, the district court cannot be said to have erred in

                                         25
finding that the IEPs developed by Cy-Fair ISD for Michael’s 1993-

94 school year were reasonably calculated to produce a meaningful

educational benefit for Michael.

     As it is evident that the IEP’s developed for Michael’s

seventh grade year were specifically tailored to his individual

needs   and   placed   him   in   the    least   restrictive   educational

environment consistent with those needs, we conclude that the

district court committed no reversible error in determining that

these IEPs and Michael’s placement within the Cy-Fair ISD were

appropriate under the IDEA.30       We therefore need not address the


       Given the strong factual support for the district court’s
decision, we also find that the cases specifically cited to us by
Michael’s parents in support of their claim that the school
district’s placement was inappropriate and their placement at Provo
Canyon was appropriate are readily distinguishable. In Clyde K v.
Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1401 (9th Cir. 1994), the
Ninth Circuit found that a fifteen-year old student with Tourette’s
and ADHA had been properly placed by a school district, against his
parents wishes, in a self-contained, off-campus facility, as
opposed to mainstream classes, in light of unrefuted evidence that
the student was extremely disruptive and dangerous to others and
his well documented failure to obtain any education benefits in the
mainstream placement. In Seattle School Dist., No. 1. v. B.S., 82
F.3d 1493, 1497 and 1500-01 (9th Cir. 1996), the Ninth Circuit
held, this time against a school district, that a residential
placement, rather than mainstreaming, was appropriate for a student
with various behavioral disorders who was not receiving any
academic or non-academic benefits in a regular classroom, was
severely disrupting class, had become so physically assaultive that
she had to be placed in restraints, and ultimately was expelled by
the school district.       In Capistrano Unified Sch. Dist. v.
Wartenberg, 59 F.3d 884, 886-87 (9th Cir. 1995), the Ninth Circuit
agreed with a district court and a hearing officer that a
mainstream placement lacking in consistency and structure was
inappropriate for a sixteen-year old boy who suffered severe
learning and behavior disorders and whose IEP’s had produced
nothing but failing grades and discouragement for years. In short,
all three of these Ninth Circuit decisions were dictated by

                                    26
issue whether Michael’s parents’ placement of Michael at Provo

Canyon was appropriate.31    Accordingly, we affirm the district

court’s reversal of the hearing officer’s ruling that Cy-Fair ISD

must reimburse Michael’s parents for the cost of sending Michael to

Provo Canyon.

C. Award of Costs

     Relying on Federal Rule of Civil Procedure 54(d)(1),32 the


circumstances substantially different than those before us.
     Similarly, the district court decisions in Chris D. v.
Montgomery County Bd. of Educ., 753 F.Supp. 922, 929 (M.D. Ala.
1990) (program for emotionally disturbed thirteen-year old boy
utterly failed to provide significant educational benefit and in
fact may have been harming him), and M.R. v. Lincolnwood Board of
Educ., Dist. 74, 843 F.Supp. 1236, 1238 (N.D. Ill. 1994), aff’d, 56
F.3d 67 (7th Cir. 1995) (mainstreaming not appropriate for
emotionally disturbed thirteen-year old boy whose deteriorating
behavior represented a regression in addition to disturbance of
others), finding that more structured placements were necessary,
were also based on distinguishable fact patterns.      Much closer
factually to the case at bar were the district court decisions in
Hall v. Shawnee Mission School Dist., 856 F.Supp. 1521, 1528-29 (D.
Kan. 1994) (IEP calling for partial placement in adaptive behavior
class was reasonably calculated to produce educational benefit as
demonstrated by child’s academic achievement on par with his grade
level and gradually improving behavior, despite continuing behavior
problems at home), and Swift v. Rapides Parish Public School
System, 812 F.Supp. 666 (W.D. La.), aff’d, 12 F.3d 209 (5th Cir.
1993) (same), and our decision in Teague, 999 F.2d at 132
(educational benefit of IEP designed for seventeen-year old boy
with various behavior, learning and speech disorders evidenced by
testimony of student’s teacher and school psychologist, fact that
student advanced in terms of grade level, and student’s increasing
ability to focus on particular tasks).

      Teague, 999 F.3d at 132.

      Rule 54(d)(1) provides:
     Except when express provision therefor is made either in
     a statute of the United States or in these rules, costs
     other than attorneys’ fees shall be allowed as of course
     to the prevailing party unless the court otherwise

                                 27
district    court   awarded    $6,770.05   in     costs    to    Cy-Fair   ISD.

Michael’s    parents   have   challenged   this    award    on   a   number   of

grounds.    We generally review a decision of the district court to

award costs for abuse of discretion.33             We review the court’s

discrete factual findings for clear error.

     In the district court and here on appeal, Michael’s parents

have principally argued that the district court’s substantial award

of costs is inequitable and violates the spirit if not the letter

of the IDEA, given the procedural posture of this case.              Michael’s

parents emphasize that it was Cy-Fair ISD which filed suit in

district court to appeal the state hearing officer’s determination

in favor of the parents.         Thus they contend that the district

court’s award of costs here, if approved, would have a chilling

effect on the willingness of parents to contest school district

decisions vitally affecting their children by putting such parents

at risk of being penalized with a substantial cost assessment even

when they have managed to prevail at the administrative hearing

level.      Other parents will now have to think long and hard,

Michael’s parents urge, before using the administrative procedures

that Congress took great pains to make available to them under the

IDEA for the protection of their children’s interests.

     We cannot disagree with the equitable aspects of Michael’s


     directs . . . .
Fed. R. Civ. P. 54(d)(1) (emphasis added).

      Alberti v. Klevenhagen, 46 F.3d 1347, 1358 (5th Cir. 1995).

                                    28
parents arguments on this point.           But, as Cy-Fair ISD has noted,

the IDEA does not prohibit an award of costs to a school district

as a prevailing party in district court even when the parents have

prevailed at the administrative level.34 Consequently, the district

court could, without abusing its discretion, interpret this silence

as permission to impose costs “as of course” under Rule 54(d)(1).

     In this case, however, our review of the award of costs is not

limited to the general propriety of the award because Michael’s

parents also objected to each item included in Cy-Fair ISD’s bill

of costs.     When we review them, item by item, we find that three of

these objections clearly have merit, constituting error by the

district court in allowing the school district to recover some or

all of the costs of the items identified by these three objections.

     First, Michael’s parents properly objected to the $137.80 cost

attributable to the school district’s use of a private process

server   to    serve   both   them   and   their   attorney   despite   their

counsel’s having agreed to accept service on their behalf and not

having objected to the use of service by mail.                As there was



     The IDEA does specifically provide that a district court “may
award reasonable attorneys’ fees as part of the costs to the
parents or guardian of a child or youth with a disability who is
the prevailing party,” 20 U.S.C. § 1415(e)(4)(B) (emphasis added),
but it is silent about awarding costs other than attorneys’ fees to
either parents or a school district as a prevailing party. Even
though the doctrine of inclusio unius est exclusio allerius might
well support an argument against an award of attorneys’ fees under
the circumstances, the issue is not before us today, for the
district court did not include attorneys fees in its award of
costs.

                                      29
nothing exceptional about the parties or the nature of this case,

the district court should have denied these unnecessary private

service costs.35

     Next, Michael’s parents properly objected to $1004.00 of the

$1,319.00   in   witness   fees   and    expenses   attributable   to   Dr.

Salisbury’s round trip airfare.          Having checked with the airline

Dr. Salisbury used, the parents noted that even the seven-day

advance purchase price for a Pittsburgh to Houston round trip for

the date at issue was less than $385.00.            The school district

provided no reasonable explanation why Dr. Salisbury’s plane ticket

could not have been purchased at least one week in advance,

particularly as there is no record evidence that the one-day

hearing in the district court was either scheduled or changed at

the last minute.36   Thus, the witness fees and expenses recoverable

by Cy-Fair ISD should have been reduced by $619.00, being the

difference between Dr. Salisbury’s actual plane fare and the

maximum amount she would have had to pay for a seven-day advance

fare.

     Finally, Michael’s parents objected to $3,657.55 in costs

incident to four depositions purportedly taken by the school



     See Zdunek v. Washington Metro. Area Trans. Auth., 100 F.R.D.
689, 692 (D. D.C. 1983).

       28 U.S.C. § 1821(c)(1) provides for the payment of travel
expenses of witnesses who travel by common carrier, but
specifically states that “a witness shall utilize a common carrier
at the most economical rate reasonably available.”

                                    30
district in preparation for the district court hearing, which

expenditures the parents assert were not “reasonably necessary.”37

The deponent in one of those depositions was of Michael’s parents’

expert, Gina Novellino, Ph.D., Michael’s psychologist who was

unavailable for live testimony and whose deposition was introduced

as an exhibit at trial.       The cost of this deposition was not

erroneously taxed to Michael’s parents.     The other depositions,

however, were those of the school district’s own witnesses and were

not introduced at trial because of Michael’s parents’ objections.

As the school district had to have known in advance that these

witnesses would have to be called for live testimony in open court

at the district court hearing, their depositions were surplusage

and cannot properly be taxable to Michael’s parents as “reasonably

necessary” under these circumstances.     Accordingly, the school

district should not have been allowed to recover the $2,176.40 cost

of these three depositions.

     In conclusion, we hold that the district court did not abuse

its discretion in general when it elected to tax costs to Michael’s

parents, but clearly erred in its findings of fact as to the proper

amounts for the three categories of costs discussed above, i.e.,

private process service, plane fare, and deposition expenses.   We

therefore conclude that the award of costs to Cy-Fair ISD should be


      Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099
(5th Cir. 1982) (A deposition is taxable as a cost so long as “the
taking of the deposition is shown to have been reasonably necessary
in light of the facts known to counsel at the time it was taken.”).

                                 31
reduced by $2,933.20, to $3,837.40.

                                    III

                                 CONCLUSION

      Having    concluded   that   the    district   court      did       not   err

reversibly in finding that the IEPs designed for Michael and Cy-

Fair ISD’s resulting placement of Michael in his local junior high

school   were    reasonably     calculated    to   produce      a    meaningful

educational benefit and were therefore appropriate under the IDEA,

we   affirm    the   district   court’s   reversal   of   the       TEA   hearing

officer’s ruling that the school district must reimburse Michael’s

parents for the costs of their unilateral placement of Michael in

a private full-time residential school. Furthermore, we modify the

district court’s award of costs under Rule 54(d)(1) as discussed

above and affirm that award as modified.

JUDGMENT AFFIRMED; ORDER MODIFIED and, as modified, AFFIRMED.




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