     Case: 18-20714      Document: 00515155154         Page: 1    Date Filed: 10/10/2019




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

                                                                                 FILED
                                      No. 18-20714                        October 10, 2019
                                                                            Lyle W. Cayce
A. B., by and through his next friends, Jamie B. and Nicole B.,                  Clerk


              Plaintiff - Appellee

v.

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-2382


Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Clear Creek Independent School District appeals the district court’s
denial of its motion for summary judgment. Reviewing the district court’s
factual findings for clear error, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20714
                                        I.
                                       A.
      The Individuals with Disabilities Education Act (IDEA) grants federal
funding to states that provide “[a] free appropriate public education . . . to all
children with disabilities.” 20 U.S.C. § 1412(a)(1)(A). Under the IDEA, a child
with disabilities is entitled to an “individualized education program” crafted
by a “team” that includes the child’s parents, the child’s teachers,
representatives of the child’s school district, and other people with “knowledge
or special expertise regarding the child.” Id. §§ 1412(a)(4), 1414(d)(1)(B).
      Relevant to this appeal is the IDEA’s requirement that states educate
children with disabilities in the “least restrictive environment”:
      To the maximum extent appropriate, children with disabilities . . .
      [must be] educated with children who are not disabled, and . . .
      removal of children with disabilities from the regular educational
      environment [must] occur[] only when the nature or severity of the
      disability of a child is such that education in regular classes with
      the use of supplementary aids and services cannot be achieved
      satisfactorily.
§ 1412(a)(5). Parents who wish to challenge the educational placement of their
children are entitled to impartial hearings, see id. § 1415(b)(6), (f)(1)(A), and
the statute provides that, during the pendency of any such proceedings, the
child’s then-current placement is not to be disturbed, see § 1415(j).
                                       B.
      This case concerns the education of A.B., an elementary-school student
within the Clear Creek Independent School District. Because of A.B.’s
diagnoses of autism, attention-deficit/hyperactivity disorder, and speech
impairment, the school district provided him with special education and
services under the IDEA.
      The school district offers three special-education programs, two of
which—Learning to Learn and Social Communication—are at issue in this
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case. The Learning to Learn program concentrates on teaching communication
and social skills, whereas the Social Communication program is for higher-
functioning students who are more able to benefit from an academic
curriculum. Students in the Social Communication program mostly spend
their time in general-education classes but also receive separate instruction in
social skills.
        In the 2014-2015 school year, A.B. was in the first grade and attended
classes in the Learning to Learn program. The program was evidently
successful; A.B. progressed academically and linguistically, and his behavioral
problems abated. Indeed, A.B. did so well that in March 2015, his IDEA team
agreed to promote him to the Social Communication program for the following
year.
        That year, second grade, was also a success. With the special-education
support provided by the school district, A.B. continued to make academic and
behavioral progress, and his team decided that A.B. should remain in the
Social Communication program.
        The present dispute began when A.B. was in the third grade. That year,
A.B.’s individualized education program had him primarily attending classes
in the general-education classroom with the in-class assistance of a special-
education aide. Although present and learning alongside his third-grade peers,
A.B. was following a modified curriculum and was not expected to keep pace
academically with his classmates. Moreover, he primarily focused his attention
on, and learned from, the special-education support staff rather than the main
classroom teacher.
        At the beginning of the school year, A.B.’s behavior took a turn for the
worse. He increasingly avoided doing his work in favor of various unproductive,
and sometimes disruptive, activities, which ranged from going to the bathroom
frequently and playing with the window blinds to flopping on the floor and
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screaming. On occasions when he was disruptive, A.B. would be temporarily
removed from the general-education classroom.
      In October 2016, A.B.’s team convened and recommended, over his
parents’ objection, that A.B. be placed back into the Learning to Learn program
for his core academic classes. His parents, concerned that A.B.’s behavior
would only deteriorate further in the Learning to Learn environment, filed an
administrative complaint in November 2016, alleging that the proposed move
would violate the IDEA by not placing A.B. in the “least restrictive
environment.”
      That forestalled A.B.’s transfer, and so he remained in the general-
education classroom for the rest of the school year. During that time, with the
assistance of plans put in place by the school district to address some of his
struggles, A.B.’s behavior improved substantially. By spring, he had ceased
engaging in most of the misbehavior that had cropped up at the beginning of
the school year. He also continued to progress academically.
                                       C.
      The administrative complaint was heard by a special-education hearing
officer in May 2017. On July 7, 2017, the hearing officer found that removing
A.B. from the general-education classroom would violate the IDEA and ordered
the school district to “maintain [A.B.]’s placement in the general education
classroom with [special-education] supports.”
      A.B.’s parents then filed the present lawsuit, seeking attorney’s fees as
prevailing parties under the IDEA. See § 1415(i)(3)(B)(i)(I). The school district
countersued, seeking reversal and vacatur of the hearing officer’s decision, and
moved for summary judgment.
      The district court denied the school district’s request that it reverse and
vacate the hearing officer’s decision, though it reserved judgment as to the
attorney’s-fees issue. The court found that “A.B. received positive, nontrivial,
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academic and nonacademic benefits when placed in a classroom in a general
educational setting.” And although A.B. was academically behind his
classmates, the court found that “his progress remained consistent and
markedly improved in a general educational setting.” As a result, the court
concluded that removing A.B. from the general-education class would be
inconsistent with IDEA’s “least restrictive environment” requirement.
      The school district timely appealed.
                                       II.
      Before reaching the merits, we confirm that we have jurisdiction to hear
this appeal. Under 28 U.S.C. § 1291, we have jurisdiction over appeals from
“final decisions” of the district courts within this circuit. A.B. argues that we
lack jurisdiction here, because the decision below was merely the denial of a
motion for summary judgment, and no final judgment has been entered in the
case. What is more, A.B. points out, the district court has not yet determined
his entitlement to attorney’s fees—the central issue in the complaint.
      The denial of a motion for summary judgment is indeed not ordinarily
appealable. But this was no ordinary summary-judgment motion. Its label
notwithstanding, “the procedure [was] in substance an appeal from an
administrative determination, not a summary judgment.” Capistrano Unified
Sch. Dist. v. Wartenberg ex rel. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995);
see also Rockwall Indep. Sch. Dist. v. M.C., 816 F.3d 329, 337 n.4 (5th Cir.
2016) (“[T]he motion for summary judgment is simply the procedural vehicle
for asking the judge to decide the case on the basis of the administrative
record.” (quoting Heather S. ex rel. Kathy S. v. Wisconsin, 125 F.3d 1045, 1052
(7th Cir. 1997))). By denying the school district’s motion for summary
judgment, the district court was, in effect, affirming the hearing officer’s
decision. All that remained for the district court was to decide the question of
attorney’s fees.
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      And an outstanding request for attorney’s fees does not divest us of
jurisdiction. In Budinich v. Becton Dickinson & Co., the Supreme Court
adopted a “bright-line rule” that “a decision on the merits is a ‘final decision’
for purposes of § 1291 whether or not there remains for adjudication a request
for attorney’s fees attributable to the case.” 486 U.S. 196, 202-03 (1988). In so
ruling, the Court expressly refused to make an exception for “cases in which
the plaintiff had specifically requested attorney’s fees as part of the prayer in
his complaint,” noting that the appealability of an otherwise final order “should
not turn upon the characterization of those fees by the statute or decisional
law that authorizes them.” Id. at 201.
      The present appeal goes to the merits of the district court’s order
effectively affirming the hearing officer’s decision. That order was final for
purposes of § 1291, and so we have jurisdiction over this appeal.
                                       III.
                                         A.
      When reviewing an administrative decision under the IDEA, “the district
court is to give ‘due weight to the hearing officer’s findings, [but] . . . must
ultimately reach an independent decision based on a preponderance of the
evidence.’” Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d 205, 213 (5th Cir.
2019) (quoting Dall. Indep. Sch. Dist. v. Woody, 865 F.3d 303, 309 (5th Cir.
2017)). In turn, we review the district court’s legal determinations de novo but
review its “findings of underlying fact . . . for clear error.” Houston Indep. Sch.
Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 583-84 (5th Cir. 2009) (quoting
Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. ex rel. Barry F., 118 F.3d
245, 252 (5th Cir. 1997)). “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.’” Lisa M., 924 F.3d at 213
(quoting Juan P., 582 F.3d at 583).
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                                                 B.
         The principal issue in this appeal is whether the school district’s
proposed placement of A.B. back into the Learning to Learn program would
comport with the IDEA’s requirement that children be educated in the “least
restrictive environment.” That question is answered in two steps: “First, we
ask whether education in the regular classroom, with the use of supplemental
aids and services, can be achieved satisfactorily . . . . If it cannot . . . , we ask,
second, whether the school has mainstreamed[1] the child to the maximum
extent appropriate.” Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th
Cir. 1989) (citation omitted). 2
         Several inquiries inform the determination of whether a school district
“can achieve education in the regular classroom satisfactorily.” Id.
Preliminarily, we ask “whether the state has taken steps to accommodate the
[child with disabilities] in regular education.” Id. This question can be
dispositive: “If the state has made no effort to take such accommodating steps,
. . . the state is in violation of the Act[.]” Id. By contrast, “[i]f the state is
providing supplementary aids and services and is modifying its regular
education program,” the inquiry becomes “whether [the state’s] efforts are
sufficient.” Id.
         In describing the efforts that a state must make, we have noted that
         the Act does not require regular education instructors to devote all
         or most of their time to one . . . child or to modify the regular
         education program beyond recognition. If a regular education
         instructor must devote all of her time to one [child with
         disabilities], she will be acting as a special education teacher in a


         1   “Mainstreaming” refers to educating a child with disabilities in a general-education
class.
        Daniel R.R. construed the Education of the Handicapped Act, the IDEA’s statutory
         2

predecessor. The relevant language is unchanged between the two statutes, except that the
law now refers to “children with disabilities” rather than to “handicapped children.” Compare
§ 1412(a)(5)(A), with Daniel R.R., 874 F.2d at 1044 (quoting former statute).
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       regular education classroom. Moreover, she will be focusing her
       attentions on one child to the detriment of her entire class . . . .
Id. at 1048-49.
       Pertinent considerations for determining whether “education in the
regular classroom can[] be achieved satisfactorily” include: (1) “whether the
child will receive an educational benefit from regular education”; (2) “the
child’s overall educational experience in the mainstreamed environment,
balancing the benefits of regular and special education for each individual
child”; and (3) “what effect the . . . child’s presence has on the regular classroom
environment and, thus, on the education that the other students are receiving.”
Id. at 1049-50. 3
       In Daniel R.R. itself, the needs of the child in question would have
required the instructor to “modify the curriculum beyond recognition” and to
“devote all or most of her time to” that child. Id. at 1050-51. And we determined
that “[r]egular education not only offers [the child] little in the way of academic
or other benefits, [but] also may be harming him.” Id. at 1051. Consequently,
we ruled that the child in question did not need to be educated in the regular
classroom.
                                             C.
       In this case, it is undisputed that the school district has attempted to
accommodate A.B. in the general-education setting. Hence, the question is
whether, with the aid that the school district has provided, A.B. can be
satisfactorily educated in the regular classroom. The district court found that
A.B. “exhibited the most progress” and “received positive, nontrivial, academic
and nonacademic benefits” in the general-education classroom. It noted that
A.B. “is no longer disruptive in a disciplinary sense.” And it found a lack of


       3These “do not constitute an exhaustive list of factors relevant to the mainstreaming
issue. Moreover, no single factor is dispositive in all cases.” Daniel R.R., 874 F.2d at 1048.
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evidence that A.B. would “entirely absorb a teacher’s time and create an undue
burden, especially with a paraprofessional providing in-class . . . support.”
Given these factual findings, the district court was correct to conclude that the
school district was able to—and thus was required to—educate A.B.
satisfactorily in the general-education environment.
      The school district does not dispute that A.B. made progress in the
regular classroom. Rather, it argues that his progress was entirely the result
of his modified curriculum and paraprofessional support, such that his success
had nothing to do with his being in a general-education environment.
      That argument misapprehends the relevant legal question. “We ask
whether education in the regular classroom, with the use of supplemental aids
and services, can be achieved satisfactorily.” Daniel R.R., 874 F.2d at 1048.
The evidence here is that it could. A.B. does not need to demonstrate that he
was receiving a special benefit from the general-education setting in order to
merit being placed there; the preference for general education is built into the
IDEA. As we said in Daniel R.R., our analysis goes beyond “whether the
student will gain any educational benefit from regular education” because
“educational benefits are not mainstreaming’s only virtue.” Id. at 1047.
      The school district’s argument is also contradicted by the record. The
district court found both that A.B.’s academic progress was “markedly
improved in a general educational setting” and that A.B.’s behavior and social
skills had similarly improved due to A.B.’s ability to model the conduct of his
general-education classmates. There is no doubt that A.B. was largely
benefitting from the attention and personalized instruction that he received,
but that does not mean that he would have done just as well in the Learning
to Learn classroom, where student behavior was markedly worse. As noted by
the district court, one Learning to Learn teacher opined that placing A.B. back


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into that environment would “likely cause him to regress.” The school district
offers no reason to believe that these factual findings were erroneous.
      The school district argues that the aid that it has given A.B. goes beyond
what the IDEA requires, citing Brillon v. Klein Independent School District,
100 F. App’x 309 (5th Cir. 2004). In that case, a teacher testified that educating
the child in question in the general-education class would require “chang[ing]
the curriculum beyond recognition” and creating “a classroom within a class,”
and we held that placing that child in special education was proper. Id. at 313.
The child in Brillon, however, was “not making academic progress in the
general education setting” and clearly “perform[ed] better in the special
education setting.” Id. at 314. Moreover, we could not discern whether the child
was receiving any “social benefit from general education.” Id. Those
circumstances, which were critical to our decision, readily distinguish Brillon
from the present appeal.
      Finally, the school district argues that, although “A.B. is not disruptive
in the traditional sense of the word,” the one-on-one support that A.B. receives
is “clearly a distraction to the other twenty plus students even if it is not always
disruptive.” But the school district identifies nothing in the record that
indicates clear error as to the district court’s and the hearing officer’s opposite
findings.
                                        IV.
      The record demonstrates that A.B. can be, and has been, educated
satisfactorily in the regular classroom. Consequently, his proposed removal to
a special-education program would violate IDEA’s requirement that students
be educated in the “least restrictive environment.” See § 1412(a)(5)(A). The
order of the district court is AFFIRMED.




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