IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20718

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-yearold 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

United States Court of Appeals

Fifth Circuit

F I L E D

July 26, 2012

Lyle W. Cayce

Clerk

 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) met in May 2009 to establish 1

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.

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

a special education teacher and a school administrator.

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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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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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