     Case: 16-20439      Document: 00514047907         Page: 1    Date Filed: 06/26/2017




                           REVISED June 26, 2017

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fif h Circuit

                                      No. 16-20439                                  FILED
                                                                                June 22, 2017
                                                                               Lyle W. Cayce
C. G., by and through her next friends Keith and Linda G.,                          Clerk

              Plaintiff - Appellant

v.

WALLER INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-123


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
WIENER, Circuit Judge:*
       Plaintiff-Appellant C.G., by and through her parents, claims that
Defendant-Appellee Waller Independent School District (“WISD”) failed to
provide her with a Free and Appropriate Public Education (“FAPE”) under the
Individuals with Disabilities Education Act (“IDEA”). C.G.’s parents seek (1)



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 16-20439
reimbursement for the cost of placing her in a private school setting and (2)
injunctive relief for discrimination under § 504 of the Rehabilitation Act. The
district court granted WISD’s motion for summary judgment, holding that
WISD provided C.G. with a FAPE and that she could not succeed on her § 504
claim. We affirm.
                                              I.
                                           FACTS
A.    Factual Background
      C.G. is a child afflicted with autism and pervasive developmental delays.
Over the course of the 2011-12 and 2012-13 school years, WISD administered
an Individualized Education Program (“IEP”) for C.G. based on her eligibility
to receive special education services. Her IEP included instruction in the
special education classroom, speech therapy, and occupational therapy, among
other types of instruction, all based on recommendations and goals set forth by
her parents and various professionals involved in her education.
      Dissatisfied with C.G.’s progress, her parents rejected WISD’s proposed
IEP for the 2013-14 school year and proposed extended school year services for
the 2013 summer. They enrolled C.G. in a private school, retained certified
special education teachers and specialists, and assembled private speech
therapy sessions. 1
B.    Procedural Background
      C.G.’s parents sought reimbursement for the cost of placing her in the
private education setting through a due process hearing before the Texas
Education Agency (“TEA”). The TEA reviewed evidence, heard live testimony,
and considered the parties briefs, then held that WISD had provided C.G. a


      1   C.G.’s parents claim that she has shown progress in this new setting.
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                                     No. 16-20439
FAPE because her IEPs were appropriate and the least restrictive
environment for her educational benefit.
        The parents appealed the TEA’s decision to the district court and added
a claim of discrimination under § 504 of the Rehabilitation Act. They moved
for judgment on the administrative record, seeking reimbursement for C.G.’s
private placement and injunctive relief under § 504 for discrimination. WISD
moved for summary judgment on all claims. The district court granted WISD’s
motion for summary judgment and denied the parents’ motion for judgment on
the administrative record.
                                           II.
                                       ANALYSIS
   A.        The Appropriateness of C.G.’s IEP
        1. Standard of Review
        We review the appropriateness of a school district’s IEP de novo. 2 We
review the district court’s findings of fact for clear error. 3 The district court
need only have based its decision on the preponderance of the evidence. 4 There
is a presumption in favor of the educational placement established by a
student’s IEP, and the party attacking its terms has the burden of showing
why the educational setting established by the IEP was not appropriate. 5
        2. Applicable Law
        The IDEA’s purpose is to ensure that children with disabilities have
access to “free appropriate public education that emphasizes special education



        2Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (1997).
        3 Id. This includes finding of facts such as that “a disabled student obtained
educational benefits under an IEP.”
       4 20 U.S.C. § 1415(i)(2)(C).
       5 Christopher M. v. Corpus Christi Indep. Sch. Dist., 933 F.2d 1285, 1291 (5th Cir.

1991).
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and related services designed to meet their unique needs and prepare them for
further education, employment, and independent living.” 6 The IDEA requires
a school district receiving federal funds to implement policies and procedures
for students with disabilities that ensure each child with a disability receives
a FAPE. 7 To achieve that goal, the parents and the school district collaborate
to develop an IEP that is “reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” 8 The educational
benefits sought when developing an IEP “cannot be a mere modicum or de
minimis; rather, an IEP must be likely to produce progress, not regression, or
trivial educational advancement.” 9
       If the parents of a child with a disability remove her from the special
education program of a public school and enroll her in a private school without
the public school’s consent, the court may require the public school to
reimburse the parents if the court determines that the public school did not
provide a FAPE. 10 To receive reimbursement, the parents must show: “(1) an
IEP calling for placement in public school was inappropriate under IDEA, and
(2) the private school placement by the parents was proper under the Act.” 11
To show that the IEP was not appropriate, the parents must demonstrate that
(1) the school district failed to comply with the procedural requirements of the




       6 20 U.S.C. § 1400(d)(1)(A).
       7 20 U.S.C. §§ 1412(a)(1), 1415(a).
       8 Endrew F. v. Douglas Cty. Sch. Dist RE-1, 137 S. Ct. 988, 999 (2017); R.H. v. Plano

Indep. Sch. Dist., 607 F.3d 1003, 1008 (5th Cir. 2010).
       9 Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 292 (5th Cir. 2009) (quoting

Michael F., 118 F.3d at 249).
       10 20 U.S.C. § 1412(a)(10)(C)(ii).
       11 Michael F., 118 F.3d at 248 (citing Sch. Comm. of Town of Burlington, Mass. v. Dep’t

of Educ. of Mass., 471 U.S. 359, 370 (1985)).
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IDEA and (2) the IEP was not “reasonably calculated to enable [the disabled
child] to receive educational benefits.” 12
       The Supreme Court has set forth four factors for determining if an IEP
is reasonably calculated: “(1) the program is individualized on the basis of
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.” 13 “[T]hese factors are . . .
intended to guide a district court in the fact-intensive inquiry of evaluating
whether an IEP provided an educational benefit,” and no factor is afforded
more or less weight than the others. 14
       3. Analysis
       Underlying this dispute is the question whether the district court
articulated a standard that is in line with the standard articulated by the
Supreme Court in the recent decision in Endrew F. v. Douglas County School
District. 15 There the Court rejected the Tenth Circuit’s standard that an IEP
was “adequate as long as it is calculated to confer an educational benefit that
is merely . . . more than de minimis.” 16 The Court held that an IEP “must be
appropriately ambitious in light of [the child’s] circumstances” which is
“markedly more demanding than the ‘merely more than de minimis’ test
applied by the Tenth Circuit.” 17




       12   Michael Z., 580 F.3d at 293 (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07
(1982)).
       13 Michael F., 118 F.3d at 253.
       14 Id. at 294.
       15 137 S. Ct. 988 (2017).
       16 Id. at 997.
       17 Id. at 992, 1000.

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       Here, the district court explicitly stated that “[t]he educational benefit .
. . ‘cannot be a mere modicum or de minimis; rather, an IEP must be likely to
produce progress, not regression or trivial educational advancement.”’ The
court focused on the four factors from Michael F. listed above to evaluate C.G.’s
IEP which, it stated, “guide a district court in the fact-intensive inquiry of
evaluating whether an IEP provided an educational benefit.” The court
extensively evaluated C.G.’s IEP then held that all four factors weighed in
favor of concluding that her IEP was reasonable based on her specific needs
and progress. 18 Although the district court did not articulate the standard set
forth in Endrew F. verbatim, its analysis of C.G.’s IEP is fully consistent with
that standard and leaves no doubt that the court was convinced that C.G.’s IEP
was “appropriately ambitious in light of [her] circumstances.” 19
       C.G.’s parents and WISD set forth different versions of the facts, but the
district court did not clearly err in concluding that the evidence supports
WISD’s contention that C.G.’s IEP was appropriate. The record is replete with
evaluations, observations, and information regarding C.G., her needs, and her
performance level. WISD worked with C.G.’s teachers, a psychologist, an
educational diagnostician, her private speech provider, her parents, and others
to align goals and strategies. There is also evidence that C.G. was making
progress, including a statement by her father in an email to WISD on April 22,
2013, referencing “the excellent progress [C.G.] has made since January.”
When C.G. mastered goals during the 2012-13 school year, additional goals




       18 The court’s reasoning is especially persuasive considering that the burden is on
C.G.’s parents to show that C.G.’s IEP was inappropriate. See Schaffer v. Weast, 546 U.S. 49,
57-58 (2005); Christopher M., 933 F.2d at 1291.
       19 See 137 S. Ct. at 992.

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and benchmarks were added. WISD adjusted its strategies multiple times,
including altering C.G.’s school day in response to her parents’ many concerns.
       The burden of proof to overcome the legal presumption that the
education program developed by the child’s school is appropriate rests on the
parents. 20 WISD could have taken different, and arguably better, approaches
to C.G.’s IEP, but the role of the court is not to “second guess” the decision of
the school district or to substitute its plan for the education of the student. 21
It is clear that WISD provided C.G. with an IEP that was reasonably calculated
to enable her to make progress in light of her individual circumstances.
   B. § 504 Discrimination
       Under § 504 of the Rehabilitation Act of 1973, “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance . . . .” 22 C.G.’s parents claim that by
placing every disabled student, including C.G., into the “highly restrictive”
zoned classroom, WISD discriminated against C.G.
       The district court ruled that C.G.’s parents “cannot sustain their § 504
claim because the School District ‘implement[ed] . . . an Individual Education
Program developed in accordance with [IDEA].’” 23 The parents responded that
their § 504 claim is independent of the IDEA claim and cannot be dismissed
merely because the IDEA claim fails.




       20 Schaffer, 546 U.S. at 57-58; Christopher M., 933 F.2d at 1291.
       21 Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 693 (5th Cir. 1996).
       22 29 U.S.C § 794(a).
       23 Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 994 (5th Cir. 2014)

(alterations in original).
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       To determine if a § 504 claim is independent of an IDEA claim and may
thus be sustained on its own, the court asks (1) “could the plaintiff have
brought essentially the same claim if the alleged conduct had occurred at a
public facility that was not a school – say, a public theater or library?” and (2)
“could an adult at the school – say an employee or visitor – have pressed
essentially the same grievance?” 24
       C.G.’s parents allege that their § 504 claim (1) could have been brought
in a public facility and (2) could have been bought by an adult. We disagree.
The parents’ § 504 claim incorporates an identical factual background
expressed in the same language as their IDEA claim. 25 In fact, their insistence
that the zoned classroom produced a “highly restrictive” classroom setting,
parrots the language of the IDEA’s requirement that students be educated in
the least restrictive environment possible. The district court did not err in
concluding that the § 504 claim should be dismissed because it was not
independent of C.G.’s IDEA claim.
                                             III.
                                       CONCLUSION
       We AFFIRM the district court’s judgment.




       24 Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 756 (2017) (emphasis in original).
       25See e.g. Ellenberg v. New Mexico Military Inst., 478 F.3d 1262, 1267 (10th Cir. 2007);
M.P. v. Indep. Sch. Dist. No. 721, 439 F.3d 865, 868 (8th Cir. 2006).
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