IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20714

A. B., by and through his next friends, Jamie B. and Nicole B., 

 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.

United States Court of Appeals

Fifth Circuit

FILED

October 10, 2019

Lyle W. Cayce

Clerk

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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 higherfunctioning 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 specialeducation 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 generaleducation 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.

2 Daniel R.R. construed the Education of the Handicapped Act, the IDEA’s statutory 

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 

 

3 These “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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