IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20673

Summary Calendar 

D. L., by and through his next friends, J.L. and A.L., 

 Plaintiff - Appellant 

v. 

CLEAR CREEK INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee 

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:15-CV-1373

Before KING, DENNIS, and COSTA, Circuit Judges. 

PER CURIAM:*

D.L. appeals the district court’s grant of summary judgment on his 

Individuals with Disabilities Education Act (IDEA) claims against Clear Creek 

Independent School District. D.L.’s failure to allege in his administrative 

complaint that the District violated the IDEA’s Child Find provision by not

identifying him as disabled after April 2013 forfeits that issue. And because 

 

* 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

Fif h Circuit

FILED

June 2, 2017

Lyle W. Cayce

Clerk

 Case: 16-20673 Document: 00514017720 Page: 1 Date Filed: 06/02/2017
No. 16-20673

2 

D.L. does not show he needed special education services in April 2013, the 

District was not required to provide such services. We AFFIRM. 

I. 

The magistrate judge’s memorandum and recommendation 

comprehensively recounts D.L.’s experience as a high school student in the 

District. Jed v. Clear Creek Indep. Sch. Dist., 2016 WL 4704919 (S.D. Tex. 

Aug. 16, 2016), report and recommendation adopted sub nom. L. v. Clear Creek 

Indep. Sch. Dist., 2016 WL 4702446 (S.D. Tex. Sept. 7, 2016). We recite only 

those facts necessary to the disposition of this appeal. 

D.L. has been diagnosed with various physical and mental ailments.1 

Pertinently, D.L. has at one point or another been found to suffer from

pervasive developmental disorder not otherwise specified, depression, 

attention deficit/hyperactivity disorder, and anxiety. 

The effect of those ailments on D.L.’s freshman year in high school—2010 

to 2011—made him eligible for special education services. The District

recognized as much, finding him disabled under the emotional disturbance 

category. That determination was based on D.L.’s expressing clinically 

significant levels of anxiety and depression, teacher information indicating the 

same, his expressing suicidal ideation, his grades beginning to drop, and his 

difficulties with interpersonal relationships. The District made the disability 

finding despite D.L. having performed well on recent state tests and making 

good grades in all but Spanish, which he did not pass. The special education 

services afforded to D.L. included, among other things, time accommodations, 

progress monitoring, and psychological counseling. 

 

1 D.L.’s ailments include: Ehlers-Danlos Syndrome, pneumomediastinum, 

Dysautonomia Postural Orthostatic Tachycardia Syndrome, pilonidal disease, spinal 

kyphosis, irritable bowel syndrome, night-time enuresis, heart murmur, mitral valve

prolapse, pervasive developmental disorder not otherwise specified (PDD–NOS), depression, 

attention deficit/hyperactivity disorder (ADHD), obsessive-compulsive disorder, and anxiety.

 Case: 16-20673 Document: 00514017720 Page: 2 Date Filed: 06/02/2017
No. 16-20673

3 

 These services were discontinued in April 2012—sophomore year—based 

on the District’s determination that D.L. was no longer eligible for such 

services. The District found that D.L. did not continue to meet the disability 

criteria for emotional disturbance. That finding took account of D.L.’s 2011 

full individual evaluation, teacher commendations regarding his behavior in 

class and toward peers, his academic performance, his lack of absences, and 

his assessment that his anxiety and depression were under control.

Disagreeing with the District’s determination, D.L.’s father requested an

independent evaluation. That did not occur, however, until March 2013. D.L. 

accordingly went through junior year without any special education services. 

Despite this, D.L. earned As in all of his classes, was rarely tardy or absent,

and scored average on his college entrance exams. D.L.’s teachers further 

praised his comportment and academics. 

This led the District to determine in April 2013 that D.L. remained 

ineligible for special education services. The District acknowledged that the 

independent evaluator found D.L. disabled under the emotional disturbance 

category. But it noted that in addition to being disabled, D.L. must have an 

educational need to receive special education services. Based on D.L.’s 

experience junior year, alongside his two prior evaluations, the District decided 

D.L. had no such need. It further found that D.L.’s father’s concerns about 

possible future deterioration could be addressed through communication 

between school and home, a team that would monitor D.L.’s progress, and 

D.L.’s taking advantage of general services.

D.L. maintained his progress during the first semester of his senior year, 

albeit with extensive one-off accommodations in response to requests by his 

father. D.L.’s father repeatedly sent emails to teachers recounting D.L.’s 

misbehavior at home, his reactions to recent diagnoses, his feeling 

overwhelmed by mounting work, and his desire to not continue in school. 

 Case: 16-20673 Document: 00514017720 Page: 3 Date Filed: 06/02/2017
No. 16-20673

4 

D.L.’s teachers were responsive to these concerns, making accommodations as 

necessary. The teachers’ observations of D.L. stood in stark contrast to the 

father’s reporting. They stated that he was doing great in class and that his 

peers looked to him for help.

Second semester of senior year began with D.L. consistently being absent 

from most classes. This caused the District to contact D.L.’s father. D.L.’s 

father responded that D.L. decided he was not returning to school as he was 

overwhelmed by the workload. Efforts to accommodate D.L.—such as latestart schedules and online courses—were unavailing. D.L.’s truancy continued 

throughout the semester.

Feeling that the District was being unresponsive to D.L.’s needs, D.L.’s 

father requested a due process hearing challenging the April 2013 

determination that special education was not warranted. The complaint 

alleges the District was repeatedly apprised of D.L.’s disabilities and knew of 

their potential impact on D.L.’s education. It further contends that the 

District’s failure to accommodate D.L. caused his problems during senior year.2

After a three-day hearing, the hearing officer concluded that D.L. did not 

suffer from a disability enumerated in the IDEA, that D.L. did not need special 

educational services, and that the District complied with its Child Find 

obligations in April 2013. It expressly found, moreover, that the complaint did 

not allege the District should have, but failed to, refer D.L. for special 

education services during senior year. That issue was accordingly not properly 

before the hearing officer. 

 

2 After filing the administrative complaint, D.L.’s father had D.L. evaluated by Peter 

Simione, Ph.D. Simione, like the April 2013 outside evaluator, reports that D.L. struggles 

with depression and anxiety and would benefit from individualized educational 

programming. As the magistrate judge observed, however, nothing in that evaluation, which 

was not available to the District in April 2013, contradicts the District’s determination.

 Case: 16-20673 Document: 00514017720 Page: 4 Date Filed: 06/02/2017
No. 16-20673

5 

D.L. sought review in the district court. The magistrate judge

recommended that summary judgment be granted in favor of the District. She 

concluded the District’s April 2013 determination complied with the IDEA 

requirements, agreed that D.L.’s senior year Child Find allegation was not 

properly before the hearing officer, and held that the claim was without merit 

in any event. The district court adopted that recommendation and granted 

summary judgment.

II. 

The IDEA imposes a duty on school districts to identify, locate, and 

evaluate children with disabilities who are in need of special education. 20 

U.S.C. § 1412(a)(3)(A); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009). 

D.L. argues that the District violated this “Child Find” provision by not 

identifying him as disabled during his senior year. This allegation does not 

appear in D.L.’s administrative complaint. Nor was it pressed during 

prehearing conferences. Indeed, the parties clarified in one such meeting that 

the Child Find allegation the complaint does contain relates only to the

determination made during D.L.’s junior year. It was not until closing 

arguments at the due process hearing that D.L. raised the issue with respect 

to his senior year. These shortcomings led the hearing officer to not consider 

the issue and the district court to find the issue forfeited. We agree. The IDEA 

prohibits a party requesting a due process hearing from “rais[ing] issues at the 

due process hearing that were not raised in the [administrative complaint], 

unless the other party agrees otherwise.” 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. 

§ 300.511(d). 

III. 

We turn now to D.L.’s preserved claim that the District violated the 

IDEA by not providing him special education services during his junior year. 

To be eligible for such services a student must (1) have a qualifying disability 

 Case: 16-20673 Document: 00514017720 Page: 5 Date Filed: 06/02/2017
No. 16-20673

6 

and (2) by reason thereof need special education and related services. Alvin 

Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 382 (5th Cir. 2007). 

The district court reviews a hearing officer’s decision virtually de novo. Id. at 

381. The officer’s findings are accorded due weight, but the district court must 

arrive at an independent conclusion based on a preponderance of the evidence. 

Id. We review the district court’s legal conclusions de novo and underlying 

factual findings for clear error.3 Id. 

D.L. first contends the District erred by overlooking the outside 

evaluator’s opinions about his disability. To the contrary, the District

expressly took account of the evaluator’s report and in fact credited its finding 

that D.L. may still be disabled under the emotional disturbance category. That 

the District chose not to adopt its recommendations for accommodations does 

not amount to error. For starters, the report defers to the District on whether 

D.L. needs special education services. Next, there is no presumption in favor 

of outside evaluators. See Christopher M. ex rel. Laveta McA. v. Corpus Christi 

Indep. Sch. Dist., 933 F.2d 1285, 1292 (5th Cir. 1991) (declining to “create any 

presumption in favor of the testimony of the child’s treating physician”); A.D., 

503 F.3d at 384 (valuing teacher testimony over that of doctors). Finally, we 

have recognized that teacher observations—like those on which the District 

relied stating that D.L.’s disability was not affecting his academics or 

behavior—are especially instructive as they spend more time with students 

than do outside evaluators. See Christopher M., 933 F.2d at 1292 (highlighting 

that school personnel often have greater contact with disabled children than 

doctors); A.D., 503 F.3d at 384 (agreeing with the argument that because 

 

3 This is so notwithstanding the district court’s resolution of the case at summary 

judgment. Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 381–82 (5th Cir. 

2007); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000).

 Case: 16-20673 Document: 00514017720 Page: 6 Date Filed: 06/02/2017
No. 16-20673

7 

teacher testimony is based on first hand observations of educational progress, 

it may be more reliable than physician testimony). 

D.L. next asserts that these considerations, even if generally proper, 

ought not apply because D.L.’s disability is undetectable to the untrained eye. 

This, argues D.L., makes teacher observations not particularly instructive in 

his case. Both the record and our case law belie this claim. First off, D.L.’s 

teachers were able to recognize that D.L.’s condition affected his education

during freshman year. Indeed, their observations to that effect were a factor 

in the District finding D.L. needed special education services at that point. 

Second, D.L. has pointed us to no case, and we have found none, holding that 

D.L.’s ailments are so undetectable that teacher observations would be

unreliable. Rather, cases involving students with similar disabilities 

repeatedly look to teacher observations in deciding whether special education 

services were necessary. See A.D., 503 F.3d at 384 (citing teacher testimony 

in concluding that student with ADHD did not need special education services); 

J.D. ex rel J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 67–68 (2d Cir. 2000) (relying 

on teachers’ comments in deciding student with emotional disturbance was 

ineligible for special education). 

D.L. next alleges that the District erred in relying exclusively on 

academic performance. Again, the record does not support this contention. 

The District also considered D.L.’s 2011 and 2012 full individual evaluations, 

his March 2013 outside evaluation, and his teacher’s observations of his 

comportment and interpersonal relationships. This was proper. A.D., 503 F.3d 

at 384 (noting that in determining whether a child needs special education, the 

school district should consider a student’s academic, behavioral, and social 

progress). D.L.’s grades, moreover, are a consideration in determining whether 

special education services are necessary. Cf. Bd. of Educ. of Hendrick Hudson 

Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 n. 28 (1982) (“[T]he achievement 

 Case: 16-20673 Document: 00514017720 Page: 7 Date Filed: 06/02/2017
No. 16-20673

8 

of passing marks and advancement from grade to grade will be one important 

factor in determining educational benefit.”). 

 D.L. last argues that the District should have looked not only to his 

present need but also to the possible future consequences of his disability. To 

that end, D.L. details his difficult senior year, blaming the District’s failure to 

intervene for his shortcomings. But we do not judge a school district’s 

determination in hindsight. Rather, we consider whether there was a present 

need for special education services. See Marshall Joint Sch. Dist. No. 2 v. C.D. 

ex. rel. Brian D., 616 F.3d 632, 637 (7th Cir. 2010) (noting that “[i]t is not 

whether something, when considered in the abstract can adversely affect a 

student’s education performance, but whether in reality it does”). A fear that 

a student may experience problems in the future is not by itself a valid basis 

for IDEA eligibility. See Eric H. ex rel. Gary H. v. Judson Indep. Sch. Dist., 

2002 WL 31396140, at *2 (W.D. Tex. Sept. 30, 2002) (stating that “fear alone 

. . . cannot form the basis for insisting that the district provide any sort of 

‘preventative’ special education services” and noting that “the child must 

demonstrate a present need for special education services”). In April 2013, D.L. 

was excelling academically and was commended by his teachers for his 

comportment. This, alongside the other evidence available at the time, caused 

the District to conclude that D.L.’s present needs did not warrant special 

education. That D.L. subsequently spiraled does not undermine that earlier 

determination. That is especially so given that D.L. does not point to any 

information the District should have, but did not, consider that indicated D.L.’s

success was likely to be short lived. 

* * * 

 The judgment of the district court is AFFIRMED. 

 Case: 16-20673 Document: 00514017720 Page: 8 Date Filed: 06/02/2017