                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                             No. 94-40669


                          WESLEY ANDRESS,

                                                    Plaintiff-Appellee,
                                                       Cross-Appellant,


                                VERSUS


         CLEVELAND INDEPENDENT SCHOOL DISTRICT, ET AL.,

                                                                Defendants,

               CLEVELAND INDEPENDENT SCHOOL DISTRICT,

                                                    Defendant-Appellant,
                                                         Cross-Appellee.

     CENTRAL EDUCATION AGENCY AND COMMISSIONER OF EDUCATION,
                                              Defendant-Appellee.




          Appeals from the United States District Court
                for the Eastern District of Texas
                         (August 28, 1995)


Before LAY,1 DUHÉ and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

     This is an appeal by the Cleveland Independent School District

("the school   district"),   which   was   forced   to   pay,    under   the

Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et

seq. ("IDEA"), for the private schooling of Wesley Andress, a


    1
     Circuit Judge of the Eighth Circuit, sitting by designation.
special education student.      Wesley's parents refused to allow the

school district to reevaluate him, using its own personnel, in

order   to    determine   his   continuing   eligibility   for   special

education, as his parents feared such reevaluation would harm him.

We hold that there is no exception to the rule that a school

district has the right to reevaluate a student using its own

personnel and we REVERSE the judgment of the district court and

RENDER a take-nothing judgment in favor of the school district.

     Wesley also sued the school district and the Texas Central

Education Agency ("TEA") under § 504 of the Rehabilitation Act of

1973 (codified at 29 U.S.C. 794) and 42 U.S.C. § 1983, because the

hearing officer did not issue his decision within 45 days from the

end of the evidentiary hearing.     The district court dismissed both

claims against both the school district and the TEA.       We find that

Wesley waived any right to a decision within 45 days and AFFIRM the

decision of the district court.

                                BACKGROUND

     Wesley Andress, now a twenty-four year old man, was enrolled

in the Cleveland Independent School District from 1982 to 1988.       In

1982, the school district evaluated Wesley and classified him as

learning disabled and speech impaired special education student

under IDEA.     In 1985, the school district reevaluated Wesley and

determined that while he was no longer speech impaired, he remained

learning disabled under IDEA.

     During the fall of 1986, Wesley was taunted and hazed by his

classmates.    Eventually, the taunting turned to physical violence,


                                    2
and, once, fellow students attempted "to poke a tennis racket up

his rear".      As a result of this abuse, Wesley was admitted to a

psychiatric hospital in the spring of 1987.

       After Wesley's release from the psychiatric hospital, he was

placed, at the request of his psychiatrist, Dr. Barbara Hibner, on

homebound instruction for the 1987-88 school year. Wesley's three-

year    comprehensive      reevaluation      to   establish     his    continuing

eligibility for special education services ("reevaluation") was due

by     late-March      1988.      Wesley's   parents     were   aware      that    a

reevaluation was needed, however, based on their understanding of

Dr. Hibner's advice that Wesley would be traumatized by additional

testing, they refused to allow the school district to test Wesley.

Instead, Wesley's parents obtained independent assessments.                       The

school district rejected the assessments, as they did not comply

with Texas State Board of Education criteria.

       Wesley did not attend school during the 1988-89 school year.

In the 1989-90 school year, Wesley's parents unilaterally placed

him in Memorial Hall, a small private school, where he remained

through the 1990-91 school year.

       In   December     1989,    Wesley's   parents     requested     a   special

education due process hearing, and in April 1991,the hearing

officer rendered a decision.           The hearing officer held that the

school      district     cannot   be   compelled    to    accept      independent

assessments in lieu of completing its own reevaluation.                    Wesley's

parents filed suit in federal district court in December 1992,

seeking to overturn the hearing officer's decision. In March 1994,


                                        3
the district court found for Wesley and reversed the hearing

officer. The district court held that, while school districts have

the right to use their own personnel to reevaluate students, there

is   an   exception      where    "supervening       medical       and    psychological

factors suggest that further evaluations . . . would further damage

the student".

      The district court awarded Wesley damages of $20,870 and

attorney's fees of $28,187.50.                The school district filed a timely

notice of appeal.

              SCHOOL DISTRICT'S RIGHT TO REEVALUATE WESLEY

      Congress        passed   IDEA    in     an   effort    to    ensure      that    "all

handicapped      children      have      available    to     them     .    .   .   a   free

appropriate      education       which      emphasizes      special       education     and

related services designed to meet their unique needs".                         20 U.S.C.

§ 1400(c).      In order to receive the special education mandated by

IDEA,     a   child    must    first     be    identified     as    "handicapped"        or

"disabled".      Once a child has been identified as handicapped, he

must be reevaluated at least every three years, to determine his

continuing eligibility for special education. 34 C.F.R. § 300.534.

      If a student's parents want him to receive special education

under IDEA, they must allow the school itself to reevaluate the

student and they cannot force the school to rely solely on an

independent evaluation.           Gregory K. v. Longview School Dist., 811

F.2d 1307, 1315 (9th Cir. 1987) ("If the parents want [the student]

to receive special education under the Act, they are obliged to

permit such testing."); DuBois v. Conn. State Bd. of Ed., 727 F.2d


                                              4
44,   48   (2d    Cir.   1984)   ("[T]he    school   system    may    insist   on

evaluation by qualified professionals who are satisfactory to the

school officials."); Vander Malle v. Ambach, 673 F.2d 49, 53 (2d

Cir. 1983) (School officials are "entitled to have [the student]

examined by a qualified psychiatrist of their choosing.").                     A

parent who disagrees with the school's evaluation has the right to

have the child evaluated by an independent evaluator, possibly at

public expense, and the evaluation must be considered by the school

district.    34 C.F.R. § 300.503.

      It would be incongruous under the statute to recognize that

the parents have a reciprocal right to an independent evaluation,

but the school does not.            Furthermore, the school, under the

existing facts,       had   every   right   to   insist   on   an    independent

evaluation because the parents' evaluations did not comply with the

Texas State Board of Education criteria.

      The district court in the instant case recognized that school

districts have the right to use their own personnel to reevaluate

students.        However, the district court said that there was an

exception to this rule when further testing by school officials

would harm the child medically and psychologically.                 The district

court found that the exception was met here and the school district

did not have a right to reevaluate Wesley.

      The district court erred in creating this judicial exception

to the rule.       The district court cited no law in support of its

position. Nothing in the statutes, regulations or caselaw supports




                                       5
such an exception.2    Therefore, we hold that there is no exception

to the rule that a school district has a right to test a student

itself in order to evaluate or reevaluate the student's eligibility

under IDEA.

                 WESLEY'S § 504 AND § 1983 CLAIMS

     Wesley sued the school district and the TEA under § 504 of the

Rehabilitation Act of 1973 (codified at 29 U.S.C. 794) and 42

U.S.C. § 1983, because the hearing officer did not issue his

decision within 45 days from the end of the evidentiary hearing.

The evidentiary hearing ended on January 25, 1991 and the hearing

officer issued his decision on April 10, 1991, 74 days later.

After the close of evidence in the trial, the district court

dismissed the § 504 and § 1983 claims against both the school

district and the TEA and Wesley appeals.

     Wesley requested four continuances of the due process hearing

and did not oppose many of the school district's request for

continuances.   Wesley's attorney sent a letter to the hearing

officer   indicating   he   was   waiving   the   45-day   requirement.

Therefore, as Wesley waived any right to a decision within 45 days,

the district court did not err in dismissing his § 504 and § 1983

claims, and that decision of the district court is affirmed.3

    2
     The only case we found concerning any such exception was       Doe
v. Phillips, 20 I.D.E.L.R. 1150 (N.D. Cal. 1994), where             the
district court held that there was no medical exception to          the
school district's right to reevaluate a student using its           own
personnel.
     3
      There is some question as to whether § 504 requires hearing
officers to render decisions within 45 days.     However, because
Wesley waived any right to a decision within 45 days, we need not

                                   6
                               CONCLUSION

        A handicapped student must be reevaluated every three years to

determine his continuing eligibility for special education under

IDEA.        A parent who desires for her child to receive special

education must allow the school district to reevaluate the child

using its own personnel; there is no exception to this rule.

Wesley's parents refused to allow the school district to reevaluate

him.       Therefore, Wesley was not eligible for special education

after March 1988, when his reevaluation was due.

        Because Wesley was not eligible for special education after

March 1988, the school district does not owe Wesley or his parents

any money to reimburse them for the cost of providing Wesley with

special education. Accordingly, the judgment of the district court

in favor of Wesley is REVERSED and judgment is RENDERED in favor of

defendant-appellant Cleveland Independent School District that

plaintiff-appellee Wesley Andress take nothing.       The judgment of

the district court dismissing Wesley's § 504 and § 1983 claims is

AFFIRMED.

        REVERSED AND RENDERED IN PART AND AFFIRMED IN PART.




reach that issue.
opin\94-40669.opn
                                   7
