     Case: 18-50160   Document: 00514958346     Page: 1    Date Filed: 05/15/2019




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

                                                                 FILED
                                                               May 15, 2019
                                 No. 18-50160
                                                               Lyle W. Cayce
                                                                    Clerk
LISA M., as parents/guardians/next friends of J.M., a minor individual with a
disability; KENNETH M., as parents/guardians/next friends of J.M., a minor
individual with a disability,

             Plaintiffs - Appellees

v.

LEANDER INDEPENDENT SCHOOL DISTRICT,

             Defendant - Appellant




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


Before KING, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      When J.M. started fourth grade, his parents asked Leander Independent
School District to evaluate him for special education. The District spent weeks
analyzing J.M.’s educational profile and determined that he needed special
education. Shortly afterwards, following a private staff meeting, the District
changed its position. J.M.’s parents pursued administrative relief. A Special
Education Hearing Officer found that the school district was right the first
time. On appeal, in a comprehensive opinion, the district court also concluded
that J.M. was eligible for special education. We affirm.
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                                      No. 18-50160
                                   BACKGROUND 1
              Kindergarten Through Beginning of Fourth Grade
       When J.M. was in second grade at Ronald Reagan Elementary School in
the Leander Independent School District (the “District”), he experienced
challenges with writing and classroom behavior. The District provided
accommodations through Section 504 of the Rehabilitation Act (“Section 504”).
By April of second grade, J.M. had been diagnosed with Attention Deficit
Hyperactivity Disorder (“ADHD”) and Developmental Coordination Disorder
(“DCD”). For the following year and a half, J.M.’s parents did not request
services beyond Section 504.
       Shortly before the start of J.M.’s fourth grade year, in August 2015,
J.M.’s parents requested that J.M. be evaluated for special education and
related services under the Individuals with Disabilities Education Act
(“IDEA”). The District refused on the basis that J.M.’s Section 504
accommodations were sufficiently addressing his needs. 2
       One month later, a private neuropsychologist recommended that J.M. be
considered for special education and diagnosed him with a Specific Learning
Disability (“SLD”) with impairment in written expression. After that, the
District agreed to evaluate him.
                   IDEA Evaluation Procedures, Generally
       Under the IDEA, a school district “shall conduct a full and individual
initial evaluation . . . before the initial provision of special education and
related services to a child with a disability.” 20 U.S.C. § 1414(a)(1)(A). This
evaluation is called the “Full and Individual Evaluation,” or “FIE.” The FIE


       1 The following facts are undisputed unless otherwise specified.
       2 The IDEA and Section 504 share a complex relationship. “In short, the IDEA
guarantees individually tailored educational services, while [Section 504] promise[s] non-
discriminatory access to public institutions.” Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 756
(2017). But there is “overlap in coverage.” Id.
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must consist of procedures “to determine whether a child is a child with a
disability [as defined by the IDEA]” and “to determine the educational needs
of such child.” 20 U.S.C. § 1414(a)(1)(C). Each of those determinations is crucial
because eligibility for IDEA services is a two-pronged inquiry: (1) whether the
child has a qualifying disability, and (2) whether, by reason of that disability,
that child needs IDEA services. 20 U.S.C. §§ 1401(3), 1414(d)(2)(A). 3
       When “appropriate,” as part of the FIE, the school district is required to
perform a “[r]eview of existing evaluation data” (“REED”). 20 U.S.C.
§ 1414(c)(1). The REED must include “evaluations and information provided
by the parents,” “current classroom-based, local, or State assessments, and
classroom-based observations,” and “observations by teachers and related
services providers.” Id.
       “Upon completion of the administration of assessments and other
evaluation measures[,] the determination of whether the child is a child with
a disability . . . and the educational needs of the child shall be made by a team
of qualified professionals and the parent of the child.” 20 U.S.C. § 1414(b)(4).
Texas, by statute, has named that team the “admission, review, and dismissal,”
or “ARD” committee. 19 Tex. Admin. Code § 89.1040(b). In making its
eligibility determination, the ARD committee must “[d]raw upon information
from a variety of sources, including aptitude and achievement tests, parent
input, and teacher recommendations, as well as information about the child’s
physical condition, social or cultural background, and adaptive behavior.” 34
C.F.R. § 300.306(c)(1)(i).




       3 There is a relevant sub-prong under the first prong. A “qualifying disability” (first
prong) is defined to include an “other health impairment” (“OHI”), which is defined to include
ADHD. Regulations elaborate that an OHI (such as ADHD) must not only be diagnosed, but
also must “adversely affect[] a child’s educational performance.” 34 C.F.R. § 300.8(c). The
District concedes that J.M.’s OHI did so.
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      “If a determination is made that a child has a disability and needs special
education and related services, an [individualized education program] must be
developed for the child.” Id. § 300.306(c)(2); see also 20 U.S.C. § 1414(d)(2)(A).
The “individualized education program” (“IEP”) is a “written statement” that
outlines how special education and related services will be delivered to the
child. 20 U.S.C. § 1414(d)(1)(A). The school district’s mandate to design and
deliver an IEP falls under its broader statutory obligation to furnish a “free
appropriate public education” (“FAPE”) to all IDEA-eligible students. 20
U.S.C. § 1412(a)(1); see also Honig v. Doe, 484 U.S. 305, 311 (1988) (describing
an IEP as the “primary vehicle” for implementing a FAPE).
       If a parent is dissatisfied with a school district’s “evaluation or
educational placement” of a child, the parent “may file a due process
complaint.” 34 C.F.R. § 300.507(a). An informal resolution meeting must
follow. 34 C.F.R. § 300.510-512. If disagreement persists, complainants may
pursue relief in an administrative due process hearing before an impartial
Special Education Hearing Officer (“SEHO”). 34 C.F.R. § 300.510-512. Appeals
may be taken to federal district court. 34 C.F.R. § 300.516.
                             J.M.’s Initial Evaluation
       Those basic steps were followed in this case. In October 2015, the District
scheduled a REED meeting and advised J.M.’s parents that the District was
considering an FIE. At the same time, the District implemented a “response to
intervention process” (“RTI”), which is a general—not special—education
methodology that offers tiers of progressively intensified support depending on
a student’s response to instruction. See Genna Steinberg, Amending § 1415 of
the IDEA: Extending Procedural Safeguards to Response-to-Intervention
Students, 46 Colum. J.L. & Soc. Probs. 393, 395 (2013). 4

      4 The United States Office of Special Education Programs (“OSEP”) has clarified that
“RTI strategies cannot be used to delay or deny the provision of an [FIE].” Memorandum from
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      The District formally issued a REED for J.M. on the same day the REED
meeting was held: October 9, 2015. In the REED report, one of J.M.’s teachers
commented that he was a “rock star,” “very bright,” and “fun to watch and
teach.” But the REED also documented a teacher’s observation that J.M.’s “fine
motor skills” were at the “lower end of average” and that even when J.M. took
his ADHD medication, his ability to “[maintain] an organized notebook” was
“significantly below his peers.” Teachers also expressed concern that J.M. had:
“difficulty producing written work, poor attention and concentration,
excessively high/low activity level, difficulty following directions, [and]
difficulty staying on task.” Furthermore, the REED reported parental
observations that J.M. was “flipping numbers and letters” and that he was
having “melt downs” when feeling overwhelmed. The REED concluded that
J.M. “appear[ed] to have one or more conditions which directly affect[ed] [his]
ability to benefit from the educational process.” It advised that “[a]dditional
data [were] needed to determine whether the student [needed] special
education and related services.”
      On the same day the REED was issued, the District sought consent from
J.M.’s parents to undertake an FIE. The consent form explained, “We want to
do a Full and Individual Evaluation of your [child] for the following [reason]:
[T]he [RTI] team noted that while [J.M.] has made some progress with these
interventions in place, he had not progressed at an expected rate.” The form
noted that the District rejected the option of continuing general education
interventions because J.M. “continu[ed] to struggle.” J.M.’s parents consented
to the FIE.
      On November 18, 2015, the District convened another REED meeting.
The notes from that meeting reflect “[t]eacher and parent concerns” with


Melody Musgrove, Director, OSEP, to the State Directors of Special Education (Jan. 21,
2011), https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf.
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respect to “written expression.” The notes also state that J.M.’s “work habits”
had “change[d]” insofar as he was “not completing work” and making “errors
he typically did not make.” J.M.’s mother described how J.M. was “distressed
about the writing demands at school” and that he “beg[ged] to stay home” from
school due to stomach pain. This REED updated the October REED by adding
that J.M. should undergo an emotional and behavioral evaluation.
      The District completed its FIE on January 4, 2016. The report outlined
J.M.’s talents and difficulties, which the District has characterized as a “varied
academic profile.” J.M. was reported to have “average or near average abilities
in the areas of Basic Reading, Reading Fluency, Reading Comprehension,
Math Calculation, Math Reasoning, Oral Expression, and Listening
Comprehension” but “apparent deficits in Written Expression.” The FIE also
explained that J.M. “display[ed] a tendency toward inattentiveness to a
significant degree across all settings.” The FIE concluded with a section called
“Recommendations to the ARD Committee.” That section included a finding
that J.M. met eligibility criteria for IDEA services as a student with an SLD
in the area of written expression and with the “Other Health Impairment”
(“OHI”) of ADHD. Finally, the FIE included a few specific recommendations
for the IEP.
      On January 16, 2016, J.M.’s parents received an email introduction from
Amy Stringer, who explained, “I will be [J.M.]’s tracking teacher in special
education.” She referenced “paperwork coming home with [J.M.]” that included
a draft IEP. The draft IEP proposed “20 minutes per day per 5 day week” of
special education instruction in writing as well as the related service of
occupational therapy.
       ARD Committee Meetings and Eligibility Determinations
      Nine days later, the District held J.M.’s first ARD committee meeting.
The team discussed concerns with J.M.’s academics. By that point, he had
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                                 No. 18-50160
failed all his December 2015 benchmark tests, scoring 57% on math, 45% on
reading, and 30% on writing. His teachers described these scores as “extreme”
and “shock[ing].” One of J.M.’s teachers later testified that she was “very
surprised” by his benchmark performance because the results were “much,
much lower than . . . what we see as his ability in the class.” The team also
discussed J.M.’s strengths, noting that even some of his writing scores were
“not uncommon” for fourth graders and that his disruptive and unfocused
behaviors were often “re-directable.”
      After approximately three and a half hours of discussion, the ARD
committee formalized its determination that J.M. was eligible for special
education. The committee memorialized its agreement in a document titled
“Individualized Education Program (IEP),” which certified that J.M. met the
criteria for OHI and SLD and, “by reason of those disabilities,” had a “need for
special education and related services.” The document stated, “No [a]dditional
evaluation is needed.”
      The “IEP” document also delineated a “Schedule of Services” for J.M.,
which were proposed to take effect the following day and continue for one
calendar year. The “Schedule of Services” increased the amount of specialized
assistance from the draft IEP’s twenty minutes per day to thirty minutes per
day. It added assistive technology as a related service additional to
occupational therapy. At the end of the ARD committee meeting, J.M.’s
mother, Lisa M., declined to sign the “Schedule of Services” because she wanted
to discuss its details with her husband, who had been unable to attend.
      J.M.’s parents and the District offer conflicting interpretations of what
happened next, but the following facts are undisputed.
      The District’s minutes of the January 25 meeting ended with the
following notes: “Assurances given. Parents/district agree with IEP,” “Another


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meeting was scheduled for Feb. 5 . . . if needed,” “Parents/district adjourned in
agreement.”
      On February 3, 2016, Lisa M. sent an email to the District stating:
      After reviewing the FIE and the IEP for [J.M.], we have decided to
      disagree with both. We do agree to the initiation of Special
      Education services and the eligibility of OHI and SLD ([just not]
      to the quality/quantity of all the individual evaluations). Please let
      us know what our next steps will be, and note that Jana Palcer [a
      parent advocate] will be attending the 2.5.16 ARD for our support.

Shortly after sending that email, Lisa M. received a call from someone in the
District rescheduling the February 5 meeting to February 23.
      On February 11, the District produced an “Addendum” to the January 4
FIE confirming that J.M. was eligible for special education. The Addendum
reflected that an “Other Health Impairment Form” had been received from one
of J.M.’s doctors, which “[n]oted functional implications of limited alertness
manifesting as lack of attention and concentration.”
      Sometime between the first ARD committee meeting (on January 25)
and the reconvened meeting (on February 23), District staff held a “systematic
review,” also called a “staffing,” at which the District’s outside counsel was
present. J.M.’s parents were not invited. The record does not clearly reflect how
long this staffing lasted but a witness for the District testified that the typical
staffing lasts “between an hour and two.”
      At the February 23 reconvened ARD meeting, the District informed
J.M.’s parents of the District’s new position that J.M. was not eligible for
special education.
      The parties diverge over what exactly happened at the staffing, and why
the District’s position changed. We will summarize each party’s version.
      The District describes the staffing as a “very typical procedure” designed
“to review the issues and think about what could be done differently, if

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                                        No. 18-50160
anything.” The District explains that, in the course of this routine re-
evaluation, staff realized that “J.M. already was accessing his education and
making grade level progress in the general education environment”; therefore,
according to the District, staff decided to revise the District’s position.
       In contrast, J.M.’s parents accuse District superiors of “coach[ing]” the
teachers to a finding of no-eligibility through the use of this “District-only
secret meeting.” 5 Regardless, it is undisputed that the District reconvened the
ARD committee meeting on February 23 and, at that time, informed J.M.’s
parents that the District had determined J.M. was not eligible for special
education.
                            Remainder of Fourth Grade
       J.M. finished fourth grade with only Section 504 accommodations—no
IDEA support. The District emphasizes that he “earned all As and Bs in his
classes, had no discipline referrals, and interacted appropriately with his
same-aged peers.” J.M.’s parents counter that J.M. “complained of stomach
aches” throughout the year, which demonstrated his “stress level [at] school.”
Lisa M. also recalls that he “was sent home very frequently, more than once or
twice some weeks.”
                                   Litigation History
       Shortly after J.M.’s parents received notice that the District considered
J.M. ineligible for special education, they requested a due process hearing
before an SEHO. Their complaint alleged, in relevant part, that the eligibility


       5  Disability rights advocates, as amici, characterize the event as an example of a school
district taking “extraordinary measures” to prevent a student with a disability from receiving
special education. Brief for Disability Rights Texas and Decoding Dyslexia Texas as Amicus
Curiae at 16-20. They cite recent findings from the United States Department of Education
that school districts including Leander have taken targeted actions to decrease the number
of students who qualify for special education. Id. at 6 (citing Letter from Ruth E. Ryder,
Acting Director, OSEP, to Mike Morath, TEA Commissioner (Jan. 11, 2018),
https://tea.texas.gov/WorkArea/DownloadAsset.aspx?id=51539620527).
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reversal decision was substantively incorrect. The District denied the
allegation, essentially arguing that J.M. was “making academic, behavioral,
and social progress in the general education setting without need for
specialized instruction under the IDEA.”
      After a two-day, 20-hour hearing at which fifteen witnesses testified, the
SEHO produced a 44-page decision that ruled for J.M.’s parents on the
eligibility issue.
      The SEHO found a “shocking difference” in the opinions expressed by
teachers and District staff at the January ARD committee meeting as
compared with the February meeting. He determined that the statements
made at the January meeting were “more credible” than those made at the
February meeting. And he concluded that “[t]he evidence establishes a
reasonable presumption that District personnel at some level intervened with
[J.M.’s] teachers . . . , either directing or training them to a finding of no
eligibility in the February ARDC meeting.” The SEHO ordered the District to
convene an ARD committee meeting and “revise the existing IEP as was
planned” for the February ARD committee meeting.
      Pursuant to the IDEA, 20 U.S.C. § 1415(i)(3)(B), J.M.’s parents filed a
district court complaint to recover attorneys’ fees. The District answered with
a general denial and a counterclaim challenging the SEHO’s findings of fact,
conclusions of law, and relief ordered with respect to the eligibility issue. The
parties filed cross-motions for judgment on the administrative record. Ruling
for J.M.’s parents, the district court agreed with the SEHO that J.M. met IDEA
eligibility criteria.
      The District now appeals the district court’s decision. The District
concedes that J.M. was a student with a qualifying disability under the IDEA
but disputes that J.M. needed special education.


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                         STANDARDS OF REVIEW
      The district court’s review of the SEHO’s determination is “virtually de
novo.” Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993).
That is, “[a]lthough the district court is to give ‘due weight to the hearing
officer’s findings, the court must ultimately reach an independent decision
based on a preponderance of the evidence.’” Dallas Indep. Sch. Dist. v. Woody,
865 F.3d 303, 309 (5th Cir. 2017) (quoting Cypress-Fairbanks Indep. Sch. Dist.
v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997)). Under 20 U.S.C. §
1415(i)(2)(C), 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.”
      “Accordingly, in IDEA proceedings, summary judgment is not directed to
discerning whether there are disputed issues of fact, but rather, whether . . .
there has been compliance with IDEA’s processes and . . . the child’s
educational needs have been appropriately addressed.” Seth B. ex rel. Donald
B. v. Orleans Parish Sch. Board, 810 F.3d 961, 967 (5th Cir. 2016) (internal
citations omitted).
      On appeal, we review the district court’s decision as a “mixed question of
law and fact.” R.P. ex rel. R.P. v. Alamo Heights Indep. Sch. Dist., 703 F.3d 801,
808 (5th Cir. 2012). “Mixed questions should be reviewed under the clearly
erroneous standard if factual questions predominate, and de novo if the legal
questions predominate.” Seth B., 810 F.3d at 967 (quotation omitted). Within
that analysis, the district court’s underlying findings of fact receive clear error
deference. R.P., 703 F.3d at 808. Under the clear error standard, we will not
reverse the district court’s findings unless we are “left with a definite and firm
conviction that a mistake has been committed.” Houston Indep. Sch. Dist. v.
V.P. ex rel. Juan P., 582 F.3d 576, 583 (5th Cir. 2009) (quotation omitted).


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       Because “Congress left the choice of educational policies and
methods . . . in the hands of state and local school officials,” the role of the
judiciary under the IDEA is “purposefully limited.” White ex rel. White v.
Ascension Parish Sch. Board, 343 F.3d 373, 377 (5th Cir. 2003) (quoting Flour
Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 693 (5th Cir. 1996)).
                                       DISCUSSION
       The only issue before us is whether J.M. needed special education. 6 At
the threshold, however, we must address whether to review the eligibility
determination considering the events that transpired afterwards (that is, with
the benefit of hindsight) or whether, instead, we should consider it only with
the information contemporaneously possessed by the eligibility decision-
makers.
                   Whether to Assess Eligibility in Hindsight or as
                     Contemporaneous Decision-Makers

       In D. L. by & through J.L. v. Clear Creek Indep. Sch. Dist., we explained
that the eligibility question on appellate review is whether a student had a
“present need for special education services,” such that the reviewing court
should not “judge a school district’s determination in hindsight.” 695 F. App’x




       6 J.M.’s parents argue that the District is judicially estopped from asserting that J.M.
is ineligible for special education. “[T]he estopped party’s position must be clearly
inconsistent with its previous one, and . . . that party must have convinced the court to accept
that previous position.” Gabarick v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 553 (5th Cir. 2014)
(quotations omitted). The estoppel issue is forfeited because this is the first time the District’s
allegedly inconsistent positions are being challenged. Huffman v. Union Pac. R.R., 675 F.3d
412, 418 (5th Cir. 2012). “Only in an egregious case will we accept a judicial estoppel
argument first raised on appeal that applies to a party allegedly taking inconsistent positions
in the district court.” Id. Far from egregious, there is no inconsistency here. During
administrative proceedings, J.M.’s parents challenged the District’s evaluations as
procedurally deficient. The District responded that it would “defend” its assessments in that
respect. The District’s endorsement of its assessments was plainly limited to procedural
compliance, not substantive outcome. Since the February ARD committee meeting, the
District has consistently maintained that J.M. was ineligible for special education.
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733, 738 (5th Cir. 2017), as revised (July 31, 2017) (per curiam). 7 Today, we
reiterate that reasoning and determination.
       While judicial review unavoidably looks backward, our task is to assess
eligibility with the information available to the ARD committee at the time of
its decision. An erroneous conclusion that a student is ineligible for special
education does not somehow become acceptable because a student
subsequently succeeds. Nor does a proper finding that a student is ineligible
become erroneous because the student later struggles. Subsequent events do
not determine ex ante reasonableness in the eligibility context.
       We are not alone in this approach. The Ninth Circuit has held that
review of a school district’s eligibility determination should be assessed “at the
time of the child’s evaluation and not from the perspective of a later time with
the benefit of hindsight.” L.J. by & through Hudson v. Pittsburg Unified Sch.
Dist., 850 F.3d 996, 1004 (9th Cir. 2017). As L.J. put it, “We judge the eligibility
decision on the basis of whether it took the relevant information into account,
not on whether or not it worked.” Id.
       Our sister circuits are split on whether courts can consider hindsight
evidence in a different context—when assessing the appropriateness of an IEP.
Compare R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 187 (2d Cir. 2012)
(disallowing use of “evidence that [a] child did not make progress under the
IEP in order to show that [the IEP] was deficient from the outset”); with M.S.
ex rel. Simchick v. Fairfax County Sch. Board, 553 F.3d 315, 327 (4th Cir. 2009)
(“[W]e have concluded that, in some situations, evidence of actual progress may
be relevant to a determination of whether a challenged IEP was reasonably
calculated to confer some educational benefit.”); see also Dennis Fan, No IDEA


       7 “An unpublished opinion issued after January 1, 1996 is not controlling precedent,
but may be persuasive authority.” Thomas v. Tregre, 913 F.3d 458, 464 n.4 (5th Cir. 2019),
as revised (Jan. 25, 2019) (quoting Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006)).
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                                       No. 18-50160
What the Future Holds: The Retrospective Evidence Dilemma, 114 Colum. L.
Rev.       1503   (2014)     (describing      various     circuit     positions);     Maggie
Wittlin, Hindsight Evidence, 116 Colum. L. Rev. 1323, 1386-88 (2016) (same).
       In IEP appropriateness cases, this circuit embraces hindsight evidence.
See V.P., 582 F.3d at 588 (5th Cir. 2009) (calling demonstrated academic and
non-academic benefits “one of the most critical factors” in the analysis of
whether a school district has provided a FAPE).
       But IEP appropriateness is an inquiry distinct from IDEA eligibility. In
our court, we consider four factors in assessing the appropriateness of an IEP:
“(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.” R.P., 703 F.3d at 809 (citing Michael F., 118 F.3d
at 253). Eligibility, by contrast, requires that a student “(1) have a qualifying
disability and (2) “by reason thereof, need [ ] special education and related
services.” Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 382
(5th Cir. 2007) (quoting 20 U.S.C. § 1401(3)(A)).
       The IEP appropriateness inquiry in this circuit considers staff
implementation and student performance over a period of time whereas
eligibility is a snapshot of the student’s condition at the time of the eligibility
determination. 8      At    the   eligibility     determination      moment,        therefore,
incorporating events that occur afterwards would be incongruous and, indeed,
can only invite Monday morning quarterbacking.



       8 As J.M.’s counsel put it at oral argument, “When you’re looking at eligibility, you’re
looking [at] a point in time,” but challenges to the content of an IEP are about
“implementation,” that is, “how it’s going, are people doing what they’re supposed to, is the
child getting sufficient services?”
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                                       No. 18-50160
       Having established the temporal framework of review, we turn to the
merits of J.M.’s eligibility.
                                         Relevant Law

       The IDEA deems eligible for special education a “child with a disability,”
which is defined as a child:
             (i) with [a qualifying disability including] other health
       impairments, or specific learning disabilities; and
             (ii) who, by reason thereof, needs special education and
       related services.

20 U.S.C. § 1401(3)(A).
       Here, the District concedes that J.M. had the qualifying disabilities of
ADHD, DCD, and SLD in the area of Written Expression. 9 The contested issue
is the second prong: need. What it means to need special education and related
services is not clear. Indeed, one scholar has described this area of law as a
“mess.” Mark C. Weber, The IDEA Eligibility Mess, 57 Buff. L. Rev. 83, 84
(2009). We begin by unpacking the terms “special education” and “related
services.” Then we will turn to “need.”
       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).
Regulations      elaborate      that   “[s]pecially     designed     instruction      means
adapting . . . the content, methodology, or delivery of instruction [to] address
the unique needs of the child that result from the child’s disability [and to]
ensure access of the child to the general curriculum, so that the child can meet
the educational standards within the jurisdiction of the public agency that
apply to all children.” 34 C.F.R. § 300.39(b)(3).

       9As mentioned above, under federal regulations implementing the IDEA, an “[o]ther
health impairment” is defined to include ADHD as long as it “[a]dversely affects [the] child’s
educational performance.” 34 C.F.R. § 300.8(c)(9). Because the District has conceded that
J.M. has a qualifying disability in the form of ADHD, it has conceded that J.M.’s ADHD
adversely affects his educational performance.
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                                      No. 18-50160
       The IDEA defines the term “related services” to mean “transportation,
and such developmental, corrective, and other supportive services (including .
. . occupational therapy. . .) as may be required to assist a child with a disability
to benefit from special education.” 20 U.S.C. § 1401(26)(A). 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).
       “[N]either the IDEA nor federal regulations” define what it means to
“need” special education and related services. J.D. ex rel. J.D. v. Pawlet Sch.
Dist., 224 F.3d 60, 66 (2d Cir. 2000). See also Robert A. Garda, Jr., Untangling
Eligibility Requirements Under the Individuals with Disabilities Education
Act, 69 Mo. L. Rev. 441, 491 (2004) (noting that the “IDEA and its regulations
provide no clues whatsoever to the definition of ‘need,’” and describing a
“barren” legislative history on the matter). We have had few opportunities to
address the question. 10
       In Alvin Independent School District v. A.D. ex rel. Patricia F., we held
that courts must consider the “unique facts and circumstances” of each case,
including “parent input, and teacher recommendations, as well as information
about the child’s physical condition, social or cultural background, and
adaptive behavior,” rather than only grades and test scores. 503 F.3d at 383
(citing 34 C.F.R. § 300.306(c)(1)(i)). We also clarified that “need” should not be
measured according to “whether or not [a student’s] potential could be
maximized via special education services.” Id. at 384 n.9.
       In D.L., we confirmed that, while grades “are a consideration in
determining whether special education services are necessary,” they should
not be the exclusive one. 695 F. App’x 733, 737–38 (citing A.D., 503 F.3d at


       10 During oral argument, counsel for the District suggested that there are no Fifth
Circuit cases specifically examining what it means for a student to “need” special education
as opposed to Section 504 accommodations. That appears to be correct.
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                                      No. 18-50160
384). We also stated that there is “no presumption in favor of outside
evaluators” over teachers or other school personnel. Id. at 737.
                                         Application

       As is par for the course in contentious IDEA cases, the record includes
evidence that supports each side. J.M. failed his mid-year benchmark tests,
but some of his writing scores were apparently “not uncommon” for fourth
graders. J.M. displayed “poor attention and concentration,” “excessively
high/low activity level,” “difficulty following directions,” and “difficulty staying
on   task,”   but     his    behaviors   were   sometimes       “re-directable.”   J.M.’s
neuropsychologist reported that J.M.’s “fine motor skills [were] impaired, even
with consistent intervention over a number of years,” but her report suggested
some non-IDEA accommodations. J.M. would apparently “[act] fine at school”
but then “[come] home and [fall] apart” due to academic distress.
       As highlighted by the district court and the SEHO, what is factually
unique about this case is how the District interpreted available information.
From the fall of 2015 through January 2016, the District diligently reviewed
hundreds of pages of teacher observations, clinical evaluations, progress
reports, parent input, and even a self-evaluation from J.M. By January 16, the
District had determined that J.M. needed special education, as evidenced by
an email from special education teacher Amy Stringer to Lisa M. that stated,
“I will be [J.M.]’s tracking teacher in special education.” That the email
referenced a draft IEP coming home with J.M. is further evidence that the
District believed J.M. was eligible at that time.
       The District formalized its eligibility finding at the January 25 ARD
committee meeting, which lasted three and a half hours. Nine District staff
members participated, including a dyslexia specialist, an occupational
therapist, an education diagnostician, an assistant principal, a special
education teacher, two general education teachers, and a licensed specialist in
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                                     No. 18-50160
student psychology. After detailed discussion of J.M.’s skills and challenges,
the ARD committee concluded—unequivocally—that J.M. needed special
education. All that remained was to negotiate the details of the IEP. On
February 11, the District produced an Addendum to the FIE specifically
reaffirming the District’s view that “the student need[ed] special education
services.”
      Twelve days later, after a private meeting, the District reversed its
position. No meaningful new information had been acquired about J.M.
According to the District, staff at this meeting determined that J.M. was
already accessing his education and making appropriate progress in the
general education environment. 11
      On administrative review, the SEHO characterized the District’s
difference in positions as “shocking” and was unconvinced by the District’s
explanation. After hearing live testimony from fifteen witnesses and reviewing
the REED, the FIE, the FIE Addendum, and the ARD committee meeting
transcripts, the SEHO found that the January ARD committee meeting was
“more credible” than the February one. The SEHO made 84 additional findings
of fact relating to J.M.’s educational profile and the District’s eligibility
assessment. In conclusion, the SEHO determined, J.M. was eligible for special
education as of January 26, 2016.


      11 The District correctly asserts that it was required to prepare for the reconvened
ARD committee meeting during the ARD committee recess, pursuant to the Texas
Administrative Code. See 19 Tex. Admin. Code § 89.1050(g) (emphasis added) (“When mutual
agreement about all required elements of the IEP is not achieved, the parent who disagrees
must be offered a single opportunity to recess and reconvene the ARD committee
meeting . . . . During the recess, the ARD committee members must consider alternatives,
gather additional data, prepare further documentation, and/or obtain additional resource
persons who may assist in enabling the ARD committee to reach mutual agreement.”). But
this language instructs that the staffing should have focused on “reach[ing] mutual
agreement” which, in this case, would have meant adjusting the specific services proposed
under the IEP—not rescinding J.M.’s eligibility altogether—because Lisa M. made clear that
she agreed with the District that her son should receive special education.
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                                       No. 18-50160
       Importantly, the district court afforded “due weight to the hearing
officer’s findings,” while ultimately reaching “an independent decision based
on a preponderance of the evidence.” Michael F., 118 F.3d at 252 (quotation
omitted). Specifically, the district court “review[ed] the differences in opinion
expressed at the two [ARD committee] meetings” and considered the “SEHO’s
credibility    determinations”       in    concluding      that    the    January       ARD
interpretations were the more compelling evidence of J.M.’s needs. The district
court further found that “the testimony of J.M.’s teachers and of the District
specialists at the January 25 [ARD committee] meeting support[ed] the
District’s initial conclusion” that J.M. needed special education.
       The clear error standard precludes reversal unless the court is “left with
a definite and firm conviction that a mistake has been committed.” V.P., 582
F.3d at 583 (quoting Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir.
2006)).
       We are far from that. The district court’s findings are well-supported,
reasonable, and correct.
       Turning first to the documentary evidence, we note that the FIE, the
written summary of the January ARD meeting, the FIE Addendum, and
transcript testimony at the due process hearing presented various reliable
indicators of J.M.’s struggle in the general education environment as of
January 26, 2016. For a few examples: J.M. failed all his December 2015
benchmark tests; 12 according to multiple teachers, J.M. struggled with
“attention to task” due to “avoidance behaviors”; J.M.’s classroom teacher



       12  Nothing in our opinion today should be read to foreclose the possibility that a
student who demonstrates some academic success might still need special education. Indeed,
federal regulations specifically provide that IDEA eligibility must be granted to a disabled
student “who needs special education and related services, even though the child has not
failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R.
§ 300.101(c)(1).
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                                  No. 18-50160
observed that he had “difficulty producing written work”; J.M. displayed
“excessively high/low activity level”; according to J.M.’s pediatrician, J.M.
experienced “functional limitations of limited alertness manifesting as lack of
attention and concentration”; according to Lisa M., J.M. suffered stomach pain
due to distress over academics. That J.M. demonstrated cognitive processing
ability and benefitted from Section 504 accommodations does not change the
analysis.
      We next turn to a category of evidence that is less immediately apparent
from the face of the record: credibility. Credibility is often an important factor
in IDEA cases. Sensibly so, as most judges lack the expertise to determine first-
hand whether a child needs special education as opposed to a different kind of
accommodation. See White, 343 F.3d at 377 (“Our role under the IDEA is
purposefully limited.”).
      After a typical trial, the clear-error standard affords “greater deference”
to findings “based upon determinations of credibility.” Guzman v. Hacienda
Records & Recording Studio, Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (internal
quotation omitted). “[T]he trial judge’s credibility determinations are due this
extra deference because only [that judge] can be aware of the variations in
demeanor and tone of voice that bear so heavily on the listener’s understanding
of and belief in what is said.” Id. (quoting Estate of Lisle v. Comm’r, 541 F.3d
595, 601 (5th Cir. 2008)).
      The same logic applies to the due process hearing context, which
resembles a bench trial in many respects. See Amanda J. ex rel. Annette J. v.
Clark Cty. Sch. Dist., 267 F.3d 877, 889 (9th Cir. 2001) (recognizing, in light of
“[t]raditional notions of the deference owed to a fact finder,” that a hearing
officer “who receives live testimony is in the best position to determine issues
of credibility”); D.B. ex rel. C.B. v. Houston Indep. Sch. Dist., No. CIV.A. H-06-
354, 2007 WL 2947443, at *11 (S.D. Tex. Sept. 29, 2007) (“The hearing officer,
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                                   No. 18-50160
who hears live testimony and can observe witness demeanor, is in the best
position to determine issues of credibility.”). The “greater deference” afforded
to credibility determinations post-trial is due in the IDEA context as well.
      The District urges that we should decline to credit the district court’s
deference to the SEHO’s findings because the SEHO misunderstood applicable
law in two key respects. We are unpersuaded.
      First, the District accuses the SEHO of laboring under the
misimpression that whether a student’s disability “adversely affects”
educational performance is part of the “need” inquiry, as opposed to the
“qualifying disability” prong. But the SEHO properly understood that it is part
of the latter.
      To be sure, at one point in the due process hearing, the SEHO suggested
to a witness, “Let’s talk about it as . . . [if the] disabling condition is the first
prong and the second prong is that it adversely affects educational
performance.” But, in context, that comment by the SEHO was intended to
parse out the two elements of the “qualifying disability” prong. The comment,
by its own terms, served as a conversation-framing technique rather than an
announcement of law. No other statement during the hearing or in the SEHO’s
written opinion suggests that the SEHO misunderstood the elements of the
eligibility inquiry. See Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 394 n.4
(5th Cir. 2012) (one erroneous citation of the legal standard following “nearly
two pages of discussion correctly articulating” the standard and preceding “a
28-page description of the factual record, a 50-page summary of the parties’
legal and factual briefing and 16 pages of the court’s substantive analysis” was
merely a “passing error”).
      Second, the District argues that the SEHO interpreted the “need”
standard to mean that special education is necessary if it would maximize a
student’s potential. See A.D., 503 F.3d at 384 n.9 (explaining that “need” should
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                                   No. 18-50160
not be measured according to “whether or not [a student’s] potential could be
maximized via special education services”). To that end, the District quotes the
SEHO’s observations that “it is not too late to assist [J.M.] in overcoming his
special needs,” that “educational need is learning how to better process his
ideas and put them into writing,” and that special education will provide J.M.
a “greater ability” to do so.
       The District reads the words “overcoming,” “better,” and “greater” to
mean that the SEHO believed that J.M. already knew how to process his ideas
and put them into writing. But that is not a disqualifier for special education;
students with some baseline writing ability may still need special education.
Moreover, the District’s interpretation deconstructs the SEHO’s language too
finely. The SEHO made its position clear that J.M. meaningfully struggled in
general education. Also, the SEHO endorsed the proposition that “Special
Education is not appropriately used for a student to achieve his maximum
potential,” emphasizing that “Special Education will only provide [J.M.] with
the same opportunity to succeed as other students, not at all assistance to meet
his maximum potential.”
       The SEHO properly understood and applied the law.
       Finally, the District suggests that “J.M. cannot ‘need’ special education
because [J.M.’s parents] have not specified what such special education would
consist of.” We reject that argument. A party urging eligibility need not
unilaterally identify what the IEP will entail. To the contrary, in Texas, the
ARD committee is charged with preparing the IEP. Michael F., 118 F.3d at
247.
       In sum, the record confirms the district court’s finding that J.M. met
eligibility criteria for special education.
       AFFIRMED.


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