     Case: 11-20718     Document: 00511935182         Page: 1     Date Filed: 07/26/2012




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

                                                                            FILED
                                                                           July 26, 2012
                                       No. 11-20718
                                                                           Lyle W. Cayce
                                                                                Clerk
J.H., by next friend A.H. and S.H.,

                                                  Plaintiff-Appellant,
v.

FORT BEND INDEPENDENT SCHOOL DISTRICT,

                                                  Defendant-Appellee.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:10-CV-2994


Before DAVIS, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        In this action under the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. § 1414, the parents of J.H., a severely disabled fourteen-year-
old child, challenge his placement in a special education class instead of general
education classes for social studies and science. J.H. does not argue that the
procedure followed by the school district in reaching this decision was
inadequate. Because of his placement in the special education class for the two
courses noted above, he disagrees with the district court’s factual finding that




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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the educational plan adopted by the school district was appropriate. We find no
error and affirm.
                                   I. Facts
      J.H. receives special education services by virtue of his intellectual
disability and speech impairment. This suit concerns the time J.H. attended
sixth grade at Dulles Middle School in the Fort Bend Independent School
District.
      J.H.’s evaluations at the beginning of his sixth grade year revealed that
he had an I.Q. of 48 and is classified as mentally retarded. His academic
achievement scores range from the kindergarten to second grade level. His
adaptive behavior score is 59, which is comparable to that of an average child of
seven.
      Following the procedures set by the Individuals with Disabilities Act,
J.H.’s Review and Dismissal Committee (ARDC)1 met in May 2009 to establish
J.H.’s curriculum for his sixth grade year. The ARDC recommended that J.H.’s
science and social studies objectives be implemented in a special education,
rather than a general education classroom. J.H.’s parents disagreed with this
recommendation and J.H. was allowed to begin his sixth grade year in regular
education social studies and science classrooms.
      Throughout this academic year J.H.’s teachers reported that J.H. was
becoming increasingly overwhelmed by the difficulty of the general education
classes in social studies and science, and the members of the ARDC continued
to recommend–over the parents’ objection–that J.H. be placed in special
education classrooms. Evaluations were then performed by two independent
experts engaged by J.H.’s parents, who agreed with the teachers’ evaluation.



      1
        This committee consisted of J.H.’s parents, a regular education teacher,
a special education teacher and a school administrator.

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                                  No. 11-20718

The school district then accepted the ARDC’s placement recommendation,
despite the parents’ objection, and placed J.H. in special education classes for
these subjects. At the request of J.H’s parents, a due process hearing was
conducted in May by a hearing officer to hear J.H.’s challenge to the ARDC’s
placement decision. In June 2010, the hearing officer found that the school’s
proposed placement in a special education classroom for these subjects was
appropriate under IDEA.        The hearing officer specifically found that the
testimony of J.H.’s teachers was reliable and convincing.
      J.H. then appealed to the federal district court and both parties moved for
summary judgment. The magistrate judge to whom the motions were referred
issued a highly detailed memorandum recommending that the district court
grant summary judgment for the school district, based on her conclusion that
J.H. had received no academic benefit from mainstream social studies and
science   classes.   Neither   party   objected   to     the   magistrate   judge’s
recommendations. The district judge adopted the magistrate’s recommendation
and entered final judgment granting summary judgment for the school district
in September 2011.
                                       II.
                                   ANALYSIS
A. Standard of Review
      On appeal from an administrative hearing to the district court, the district
court must accord “due weight” to the hearing officer’s findings, but also must
review the evidence and must “reach an independent decision based on the
preponderance of the evidence.” R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003,
1010 (5 Cir. 2010) (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118
F.3d 245, 252 (5 Cir. 1997)). The district court’s standard of review in these
cases is “virtually de novo.” R.H., 607 F.3d at 1010.



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      The school district’s plan is presumed to be appropriate. “The role of the
judiciary is not to second-guess the decisions of school officials or to substitute
their plans for the education of disabled students with the court’s.” R.H., 607
F.3d at 1010 (citing Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689,
693 (5 Cir. 1996)). The only question is whether the school officials complied
with IDEA. R.H., 607 F.3d at 1010. The party attacking the plan bears the
burden of proof, by a preponderance of the evidence, of demonstrating why it
does not comply with the statute. Id. at 1010-11.
      This court typically reviews a grant of summary judgment de novo,
applying the same standards as the district court.        However, because the
appellant failed to object to the magistrate judge’s report and recommendation
adopted by the district court in its summary judgment ruling, review here is for
plain error. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th
Cir. 1996) (en banc). Therefore the appellant must show that the district court
plainly erred in finding that the plaintiffs presented no evidence that would
raise a material issue of fact that the educational plan was inappropriate.
B. IDEA
      The Individuals with Disabilities Education Act (IDEA) requires that
school districts in states receiving federal funds implement procedures and
policies that assure that each disabled student receives a “free appropriate
public education,” or “FAPE.” See 20 U.S.C. §§ 1400(d)(1)(A), 1412(a), 1415(a);
Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044 (5th Cir. 1989). In order
to ensure that each student receives a FAPE, parents and school districts
collaborate to develop an Individualized Education Plan (“IEP”) that is
“reasonably calculated to enable the child to receive educational benefits.” 20
U.S.C. § 1400 (d)(1)(A); R.H. v. Plano Indep. School Dist., 607 F.3d 1003, 1008
(5th Cir. 2010).



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      One of the primary goals of IDEA is “mainstreaming.” Daniel R.R., 874
F.2d at 1044, 1045. An IEP must place a disabled child in the “least restrictive
environment” (“LRE”) required by his needs. R.H., 607 F.3d at 1008. That is,
a disabled child should be placed in special classes only when education in
regular classes with the use of supplementary services cannot be achieved
satisfactorily. 20 U.S.C § 1412)(a)(5)(A); see Daniel R.R., 874 F.2d at 1039. Main
streaming is the primary issue in this case. The appellants argue that placing
J.H. in special classrooms for social studies and science would be an
unnecessarily restrictive method of accommodating his disability, and that his
educational goals would be better met in mainstream classes.
      In affirming the hearing examiner, the appellants argue that the district
court incorrectly applied the standard established in Daniel R.R. v. State Bd. of
Educ., 874 F.2d 1036 (5th Cir. 1989) to the facts in this case. Daniel R.R.
generally stands for the proposition that “schools must retain flexibility in
educational planning” in order to address each child’s needs, emphasizing the
importance of balancing Congress’s strong preference for “main streaming” with
the reality that general education is not suitable for all disabled students.
Daniel R.R. at 1044, 1045. The court adopted a two-part test for evaluating a
school’s proposed educational program, asking first “whether education in the
regular classroom, with the use of supplemental aids and services, can be
achieved satisfactorily,” and, if not, “whether the school has mainstreamed the
child to the maximum extent appropriate.” Daniel R.R. at 1048. To that end,
the court suggested that several factors be considered, including: 1) the steps
taken by a school to accommodate the disabled child in general education, 2) the
extent to which the student receives an educational benefit from general
education, and 3) the effect the disabled student has on the general education
population. Id. at 1048-49.



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      The appellants argue that the Daniel R.R. factors weigh in their favor
because J.H. did not interfere with other students’ education, and because he
received an educational benefit in the mainstream classroom. Based upon our
review of the record, the factors heavily support the district court’s conclusion.
      As to the first factor, all testimony suggests that the school provided a
great deal of accommodation for J.H. in the general education program. He was
assisted by aides at all times. His teachers provided assignments that were
modified up to 100 percent to accommodate his skill level. The independent
experts, Dr. Brams, Dr. Simione, and Dr. Johnson each noted that J.H. received
individualized instruction and attention in his mainstream classes.
      As to the second factor, there is ample testimony in the record supporting
the district court’s conclusion that J.H. was not receiving an educational benefit
from general education in these two courses. In every meeting and report issued
during J.H.’s sixth grade year, his teachers noted that the curriculum’s
increasing difficulty was frustrating and overwhelming for J.H. He was unable
to pay attention in class and refused to comply with simple directions. As the
classes became more difficult, J.H.’s behavior problems increased in frequency.
His teachers testified that J.H. refused to begin assignments when asked,
needed constant help and prompting to complete his work, and at times became
so frustrated that he completely shut down and refused to work at all.
      Witnesses also testified to the gap between J.H.’s IEP objectives and the
general education curriculum. As Dr. Brams testified, J.H. was simply unable
to grasp the concepts being presented in mainstream classes in science and
social studies. J.H.’s teachers supported that conclusion, testifying that his
assignments had to be 100 percent modified.
      In accord with its emphasis on the importance of maximization, Daniel
R.R. instructs us to consider the non-academic benefits that a child derives from
mainstream education as well as academic benefits. Daniel R.R., 874 F.2d at

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1049 (“[A]cademic achievement is not the only purpose of mainstreaming.”). A
student may derive nonacademic benefit from interacting with nonhandicapped
peers in mainstream classes. Although he was in the mainstream science and
social studies classes, J.H. was taught separately by teaching assistants and
tutors and followed an entirely modified curriculum. His teachers and the
experts who observed him agreed that J.H. became withdrawn and frustrated
in the classroom, and tended to shut down as the academic assignments became
more difficult. His opportunity to interact with his nonhandicapped peers in
those classes was thus seriously limited, which supports the district court’s
conclusion that J.H. did not derive any significant nonacademic benefit from
placement in mainstream science and social studies classes.
      As to the third factor, all evaluators and teachers seem to agree that J.H.
did not disrupt the general education classroom, and at most was an occasional
distraction to his classmates. However, the primary goal in crafting an IEP is
to maximize the student’s potential to achieve his educational objectives. The
district court did not plainly err in concluding that J.H. received no educational
benefit from mainstream classes. The fact that he did not disrupt his peers in
those classes, while relevant, was much less important than the fact that he
received no educational benefit.
      The appellants argue that the proposed IEP fails to mainstream J.H. to
the maximum extent appropriate. Schools are required to take incremental
steps where appropriate in placing disabled students in general education
classes. Incremental steps may include creating a program that involves both
mainstream and special education courses. Daniel R.R. at 1050. The district
court found that the proposed plan for J.H. combining regular education courses
and special education courses would result in the maximum appropriate level of
main streaming.



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                                  No. 11-20718

      As support for their maximization argument, the appellants contend that
the district court inappropriately compared J.H.’s abilities with the abilities of
non-disabled students, rather than solely looking to J.H.’s capabilities and how
those capabilities were being accommodated in mainstream classes. The
appellants point to statements describing the teacher’s frustrations with being
unable to teach J.H. the full curriculum. The record does not support this
argument. J.H.’s teachers and school psychologists described in detail the extent
to which J.H. was unable to follow the curriculum even with adaptations and
modifications, and the fact that his inability to follow the subject matter and
discussion made him frustrated and noncompliant, which kept him from being
able to advance academically.
      More importantly, the record shows that the school district has taken the
incremental approach required by the statute and our cases. The original IEP
recommended that J.H. spend half of his classroom time in these subjects in
special education classrooms, and half in general education classrooms. As
J.H.’s difficulties in class increased, the school recommended incrementally
greater time be spent in special education classrooms. The IEP being challenged
here would remove J.H. from the mainstream classes with which he was having
the most difficulty, but would not remove him from mainstream classes for the
entire school day. J.H. will remain in the two mainstream classes in which he
has had the greatest degree of success, Kickstart and Speech. He will also
remain with his mainstream peers in activities, lunch, and special assemblies.
      The appellants argue that the district court erred in relying on the
testimony of J.H.’s teachers rather than on his report card and IEP progress
data. The district court’s grant of summary judgment was based on its adoption
of the recommendations of the magistrate judge.          The magistrate judge’s
recommendation considered at great length all of the evidence before the court,
including the testimony of the expert witnesses. The appellants specifically

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argue that the district court should have given greater weight to the fact that
J.H. received passing grades on his report card. However, as the magistrate
judge pointed out in the report and recommendation, J.H.’s report cards for the
majority of the year stated that he was failing social studies and science. At
some point, those grades were changed to Bs, but there is no evidence in the
record explaining why J.H. would receive year-end Bs after failing each
individual progress report, except the testimony of the teachers that they made
accommodation to J.H. because of his disability. The magistrate report makes
clear that the district court took the evidence into account and accorded it due
weight in making its decision.
                             III. CONCLUSION
      The district court did not commit error, plain or otherwise, in concluding
that J.H. was receiving no educational benefit from the general education
classroom in Science and Social Studies and that substituting life skills classes
for general education classes in science and social studies was consistent with
providing him a FAPE.
      AFFIRMED.




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