Spring Branch Indep. Sch. Dist. v. O.W.

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Plaintiff, v. O.W., Defendant.

Civil Action No. 4:16-CV-2643

United States District Court, S.D. Texas, Houston Division

August 9, 2021

ORDER

ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE

Before the Court are the Fifth Circuit's August 7, 2020 Opinion (the “Opinion”), the Supplemental Briefing on Remedies filed by Plaintiff Spring Branch Independent School District (“SBISD”) (Doc. #141), Defendant O.W's Response (Doc. #142), and SBISD's Reply (Doc #142). Having reviewed the parties' arguments and applicable legal authority, the Court finds that SBISD denied O.W. a FAPE during the 2014-2015 school year and remands this case to the Special Education Hearing Officer (“SEHO”) to determine an appropriate compensatory award.

I. Procedural History and Background

The Fifth Circuit remanded this case to address “the remedy question” in light of its Opinion, which affirmed in part and reversed in part this Court's March 28, 2018 Order. Spring Branch Indep. Sch. Dist. v. O.W. by Hannah W. 961 F.3d 781, 800 (5th Cir. 2020), cert, denied sub nom. Spring Branch Indep. Sch., Dist. v. O. W. By Next Friend Hannah W., 141 S.Ct. 1389, 209 L.Ed.2d 129 (2021); Doc. #90. This case stems from a dispute over the provision of a free appropriate public education (“FAPE”) between O.W., a minor student, and SBISD, the school district O.W enrolled in for fifth grade during the 2014-2015 school year. A detailed explanation of O.W.'s experience at SBISD can be found in the Court's March 2018 Order and the Fifth Circuit's August 2020 Opinion. Doc. #90; O. W. by Hannah W., 961 F.3d at 785. In relevant part, when O.W. began fifth grade, he immediately exhibited behavioral problems that eventually caused him to be removed from class on a daily basis. O. W. by Hannah W., 961 F.3d at 787. At an October 8, 2014 meeting, O.W.'s Section 504 Committee, which included O.W.'s parents and SBISD school officials, determined that O.W. was eligible for Section 504 accommodations and created an Individual Services and Accommodation Plan for him. AR 1838-40. After the accommodations proved ineffective, the Section 504 Committee met again on January 15, 2015. AR 1834. At this meeting SBISD agreed to refer O.W. for a full individual and initial evaluation (“FIE” or “special education evaluation”). Id. The evaluation was completed on February 24, 2015 and concluded that O.W. was eligible for special education. AR 1609.

An Admission, Review, and Dismissal Committee (“ARDC”) meeting was held on March 11, 2015, where an Individualized Education Program (“IEP”) was developed for O.W. AR 1630. O.W.'s IEP went into effect on March 23, 2015. Id. Once the IEP was in place, SBISD employees used timeouts, physical restraints, and even police intervention to address O.W.'s behavioral problems. AR 2754, 52-56. O.W.'s difficulties continued and in May, O.W.'s school day was shortened to three hours per day. O. W. by Hannah W., 961 F.3d at 789. By the end of the school year, O.W. had “so regressed in his therapy that it was really difficult for him to . . . even go to school, ” and O.W.'s parents ultimately withdrew him from school three days before the school year ended. Id.; AR 44, 2193-94.

When an SBISD teacher suggested that O.W. rccieve math tutoring over the summer, O.W's parents signed him up for tutoring at Fusion Academy, a private school. AR 71. O.W. “was happy and doing well at Fusion, ” so his parents unilaterally decided to enroll him there for the 2015-2016 school year. AR 97. O.W.'s mother did not inform SBISD that he would not be re-enrolling for the 2015-2016 school year until August 14, 2015, less than 10 days before the school year began. O.W. by Hannah W., 961 F.3d at 789; AR 1522. O.W. attended Fusion Academy for the 2015-2016 school year.^[1] O. W. by Hannah W., 961 F.3d at 789.

O.W.'s parents filed an administrative complaint against SBISD on October 28, 2015, approximately two months into the 2015-2016 school year. Id. The parties appeared for an administrative hearing on May 24, 2016. Id. The SEHO issued a decision in O.W.'s favor on August 5, 2016, finding that SBISD (1) violated its Child-Find duty by unreasonably delaying its referral of O.W. for a special education evaluation, (2) failed to implement O.W.'s IEP, and (3) denied O.W. a FAPE during the 2014-2015 school year. Id. Based on these findings, the SEHO found that O.W. was entitled to reimbursement for tuition and tutoring at Fusion for the 2015 -2016 school year and to a compensatory education award of tuition at Fusion for the 2016-2017 school year. Id. SBISD appealed that decision to this Court, who granted summary judgment for O.W. and affirmed the SEHO's findings and decision on March 29, 2018. Id. at 789-90. SBISD appealed this Court's decision to the Fifth Circuit. Id. at 790.

The Fifth Circuit affirmed that SBISD violated its Child-Find duty by unreasonably waiting 99 days from October 8, 2014 to January 15, 2015 to refer O.W. for a special education evaluation. Id. at 793. It also affirmed that SBISD failed to implement O.W.'s IEP by using timeouts and shortening O.W.'s school day to three hours per day. Id. at 797, 799. However, the Fifth Circuit reversed the SEHO and this Court's findings that the use of physical restraints, police interventions, and a delayed start of O.W.'s school day violated O.W.'s IEP. Id. at 797 -99. In light of these findings, the Fifth Circuit remanded this case to determine the appropriate remedies. Id. at 800. SBISD then filed a petition for writ of certiorari to appeal the Fifth Circuit's decision to the Supreme Court and the Court stayed this case pending a ruling on the petition. Doc. #148. The Supreme Court denied SBISD's petition. Doc. #150. Accordingly, the stay is hereby LIFTED and the parties' supplemental briefing on remedies is ripe for review.

IL Legal Standard

Under the Individuals with Disabilities Education Act (“IDEA”), a party aggrieved by a SEHO's findings and decision may bring suit in district court. 20 U.S.C. § 1415(i). A district court reviewing a SEHO's decision “shall grant such relief as [it] determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). “The ordinary meaning of these words confers broad discretion on the court” and “equitable considerations arc relevant in fashioning relief.” Sch. Comm, of Town of Burlington, Mass. v Dep '1 of'Educ. of Mass., 471 U.S. 359, 369, 374 (1985). “The district court's review is virtually de novo” and “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, 308-09 (5th Cir. 2017) (quotation omitted). However, “| a]n issue of law or fact decided on appeal may not be reexamined [] by the district court on remand.” Lindquist v. City of Pasadena, Tex., 656 F.Supp.2d 662, 677 (S.D. Tex. 2009), aff'd, 669 F.3d 225 (5th Cir. 2012).

III. Analysis

a. Actionable Violations

The Fifth Circuit affirmed that SBISD violated its Child-Find duty when it unreasonably delayed referring O.W. for a special education evaluation “between October 8, 2014 and January 15, 2015, ” totaling “99 days, or three months and seven days.” O. W. by Hannah W., 961 F.3d at 793, 795. The Child-Find duty imposed by the IDEA requires school districts to “identify, locate, and evaluate students with suspected disabilities within a reasonable time after the school district is on notice of facts or behavior likely to indicate a disability.” Id. at 791. Here, the Fifth Circuit found that by October 8, 2014, SBISD “was more than reasonably on notice of acts or behavior likely to indicate a disability before implementing § 504 accommodations, and it was, therefore, required to evaluate O.W.” Id. at 794 (quotation omitted).

SBISD argues that this delay was a harmless procedural error because Texas “safe harbor” provisions give school districts 45 school days to evaluate a child once a parent consents to the evaluation and 30 calendar days to implement an IEP after the evaluation is completed, thus covering much of the 99-day delay. Doc. #141 at 4-5. But the 99-day delay the Fifth Circuit found to be unreasonable was SBISD's delay in referring O.W. for a special education evaluation-not a delay in evaluating O.W. once the referral was made or in implementing an IEP once the evaluation was completed. See O.W. by Hannah W., 961 F.3d at 795. Texas law offers no such “safe harbor” for referring a child for a special education evaluation and this Court is bound by the Fifth Circuit's determination that the 99-day delay in referring O.W. for a special education evaluation violated SBISD's Child-Find duty. See id.-, Lindquist, 656 F.Supp.2d at 677.

Thus the only question is whether this violation is actionable. For a procedural violation of the IDEA, such as an unreasonable delay in complying with the Child-Find duty, a child is entitled to relief “only if the procedural inadequacies-(I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a free public education to the parents' child; or (III) caused a deprivation of education benefits.” O. W. by Hannah W., 961 F.3d at 800 nl9 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)). In this case, there are numerous indications that O.W. was deprived of education benefits during the 99-day delay. For example, despite being identified as gifted and talented, O.W. failed his math and science benchmarks. AR 1658. After a few months of participating in SPIRAL, SBISD's gift and talented program, O.W.'s parents pulled him from the program due to his poor grades, difficulties with transitions, and challenges on the bus ride to the program. ...