     Case: 19-50051      Document: 00515069639         Page: 1    Date Filed: 08/08/2019




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

                                                                               FILED
                                    No. 19-50051                          August 8, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
WILLIAM V., As Parent/Guardian/ Next Friend of W.V., A minor individual
with a disability; JENNY V., As Parent/Guardian/ Next Friend of W.V., A
minor individual with a disability,

              Plaintiffs - Appellants

v.

COPPERAS COVE INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:17-CV-201


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       This case arises under the Individuals with Disabilities Education
Improvement Act (“IDEA”), 20 U.S.C. § 1401 et seq. The law requires states
accepting federal educational funding to comply with the substantive and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50051
procedural requirements of the Act. See Honig v. Doe, 484 U.S. 305, 310 (1988).
The plaintiffs are the parents of a dyslexic child. They claim that the Copperas
Cove Independent School District violated the IDEA by failing to provide their
son with an Individualized Education Program.
      The IDEA does not compel the School District to provide a student with
an Individualized Education Program unless the student qualifies as a “child
with a disability” under the Act. 20 U.S.C. § 1414(d)(2)(A); see also 34 C.F.R. §
300.306(c)(2). There is a two-part test for making that determination: A child
qualifies as a “child with a disability” under the IDEA if the child (1) has an
intellectual disability, specific learning disability, or other health impairment
and, (2) “by reason thereof, needs special education and related services.” 34
C.F.R. § 300.8(a)(1). The district court concluded that the plaintiffs’ son meets
the definition simply because dyslexia qualifies as a specific learning disability.
It failed to engage with the second part of the test—namely, whether the
plaintiffs’ son needs special education.
      We recently observed that “[w]hat it means to need special education and
related services is not clear.” Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d
205, 215 (5th Cir. 2019). The IDEA defines “special education” as “specially
designed instruction . . . to meet the unique needs of a child with a disability.”
20 U.S.C. § 1401(29). It defines “related services” to mean “transportation, and
such developmental, corrective, and other supportive services . . . as may be
required to assist a child with a disability to benefit from special education.”
Id. § 1401(26)(A). Notably, if a child “needs a related service and not special
education, the child is not [eligible].” 34 C.F.R. § 300.8(a)(2)(i).
      While the line between “special education” and “related services” may be
murky, case law suggests that where a child is being educated in the regular
classrooms of a public school with only minor accommodations and is making


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                                  No. 19-50051
educational progress, the child does not “need” special education within the
meaning of the IDEA. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,
Westchester Cty. v. Rowley, 458 U.S. 176, 207 n.28 (1982) (“When the
handicapped child is being educated in the regular classrooms of a public school
system, the achievement of passing marks and advancement from grade to
grade will be one important factor in determining educational benefit.”); Lisa
M., 924 F.3d at 215–18 (finding a child’s struggles in the general education
environment indicative of a need for special education); Alvin Indep. Sch. Dist.
v. A.D. ex rel. Patricia F., 503 F.3d 378, 384 (5th Cir. 2007) (“First, A.D.’s
passing grades and success on the TAKS test demonstrate academic
progress.”); C.M. ex rel. Jodi M. v. Dep't of Educ., State of Hawai’i, 476 F. App’x
674, 677 (9th Cir. 2012) (“[T]he district court applied the proper standard in
determining that, based on C.M.’s performance in her regular education
classes, with accommodations and modifications, C.M. was able to benefit from
her general education classes without special education services.”); A.L. v.
Alamo Heights Indep. Sch. Dist., 2018 WL 4955220, at *6 (W.D. Tex. Oct. 12,
2018) (“[S]uccess in general education classes cuts against placement in special
education.”).
      Because the district court did not apply the second part of the test, it did
not consider whether the accommodations being provided to the plaintiffs’ son
constitute “special education” or instead only “related services.” The court also
made no findings as to whether the plaintiffs’ son was making progress under
the accommodations he was receiving. Consideration of those questions might
lead the district court to reach a different conclusion on the child’s eligibility
for an Individualized Education Program, or on the issue of whether the School
District’s current accommodations were adequate to meet the child’s
educational needs.


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                                 No. 19-50051


      In IDEA cases, a district court must “receive the records of the
administrative proceedings” and, “basing its decision on the preponderance of
the evidence, . . . grant such relief as the court determines is appropriate.” 20
U.S.C. § 1415(i)(2)(C). On appeal, we review the district court’s decision as a
mixed question of law and fact. Lisa M., 924 F.3d at 213. While the district
court’s legal conclusions are reviewed de novo, its factual findings are entitled
to clear error deference. Id.
       The record before us does not permit meaningful appellate review;
because the district court did not apply the complete standard, it did not make
underlying factual findings the review of which is necessary for us to conclude
that its legal conclusions were correct. See Int’l Marine, L.L.C. v. Integrity
Fisheries, Inc., 860 F.3d 754, 762 (5th Cir. 2017). Accordingly, we VACATE and
REMAND for reconsideration in light of the appropriate standard.




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