REVISED June 26, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20439

C. G., by and through her next friends Keith and Linda G., 

 Plaintiff - Appellant 

v. 

WALLER INDEPENDENT SCHOOL DISTRICT, 

 Defendant - Appellee 

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:15-CV-123

Before WIENER, DENNIS, and HAYNES, Circuit Judges. 

WIENER, Circuit Judge:*

Plaintiff-Appellant C.G., by and through her parents, claims that 

Defendant-Appellee Waller Independent School District (“WISD”) failed to 

provide her with a Free and Appropriate Public Education (“FAPE”) under the 

Individuals with Disabilities Education Act (“IDEA”). C.G.’s parents seek (1) 

 

* 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 22, 2017

Lyle W. Cayce

Clerk

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reimbursement for the cost of placing her in a private school setting and (2)

injunctive relief for discrimination under § 504 of the Rehabilitation Act. The 

district court granted WISD’s motion for summary judgment, holding that 

WISD provided C.G. with a FAPE and that she could not succeed on her § 504 

claim. We affirm. 

I. 

FACTS

A. Factual Background

C.G. is a child afflicted with autism and pervasive developmental delays. 

Over the course of the 2011-12 and 2012-13 school years, WISD administered 

an Individualized Education Program (“IEP”) for C.G. based on her eligibility 

to receive special education services. Her IEP included instruction in the 

special education classroom, speech therapy, and occupational therapy, among 

other types of instruction, all based on recommendations and goals set forth by 

her parents and various professionals involved in her education. 

Dissatisfied with C.G.’s progress, her parents rejected WISD’s proposed 

IEP for the 2013-14 school year and proposed extended school year services for 

the 2013 summer. They enrolled C.G. in a private school, retained certified 

special education teachers and specialists, and assembled private speech 

therapy sessions.1

B. Procedural Background

C.G.’s parents sought reimbursement for the cost of placing her in the 

private education setting through a due process hearing before the Texas 

Education Agency (“TEA”). The TEA reviewed evidence, heard live testimony, 

and considered the parties briefs, then held that WISD had provided C.G. a 

 

1 C.G.’s parents claim that she has shown progress in this new setting.

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FAPE because her IEPs were appropriate and the least restrictive 

environment for her educational benefit. 

The parents appealed the TEA’s decision to the district court and added 

a claim of discrimination under § 504 of the Rehabilitation Act. They moved 

for judgment on the administrative record, seeking reimbursement for C.G.’s 

private placement and injunctive relief under § 504 for discrimination. WISD 

moved for summary judgment on all claims. The district court granted WISD’s 

motion for summary judgment and denied the parents’ motion for judgment on 

the administrative record. 

II. 

ANALYSIS

A. The Appropriateness of C.G.’s IEP 

1. Standard of Review 

We review the appropriateness of a school district’s IEP de novo.2 We 

review the district court’s findings of fact for clear error.3 The district court 

need only have based its decision on the preponderance of the evidence.4 There 

is a presumption in favor of the educational placement established by a 

student’s IEP, and the party attacking its terms has the burden of showing 

why the educational setting established by the IEP was not appropriate.5 

2. Applicable Law 

The IDEA’s purpose is to ensure that children with disabilities have 

access to “free appropriate public education that emphasizes special education 

 

2 Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (1997). 

3 Id. This includes finding of facts such as that “a disabled student obtained 

educational benefits under an IEP.” 

4 20 U.S.C. § 1415(i)(2)(C). 

5 Christopher M. v. Corpus Christi Indep. Sch. Dist., 933 F.2d 1285, 1291 (5th Cir. 

1991). 

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and related services designed to meet their unique needs and prepare them for 

further education, employment, and independent living.”6 The IDEA requires 

a school district receiving federal funds to implement policies and procedures 

for students with disabilities that ensure each child with a disability receives 

a FAPE.7 To achieve that goal, the parents and the school district collaborate 

to develop an IEP that is “reasonably calculated to enable a child to make 

progress appropriate in light of the child’s circumstances.”8 The educational 

benefits sought when developing an IEP “cannot be a mere modicum or de 

minimis; rather, an IEP must be likely to produce progress, not regression, or 

trivial educational advancement.”9 

If the parents of a child with a disability remove her from the special 

education program of a public school and enroll her in a private school without 

the public school’s consent, the court may require the public school to 

reimburse the parents if the court determines that the public school did not 

provide a FAPE.10 To receive reimbursement, the parents must show: “(1) an 

IEP calling for placement in public school was inappropriate under IDEA, and 

(2) the private school placement by the parents was proper under the Act.”11

To show that the IEP was not appropriate, the parents must demonstrate that

(1) the school district failed to comply with the procedural requirements of the 

 

6 20 U.S.C. § 1400(d)(1)(A).

7 20 U.S.C. §§ 1412(a)(1), 1415(a).

8 Endrew F. v. Douglas Cty. Sch. Dist RE-1, 137 S. Ct. 988, 999 (2017); R.H. v. Plano 

Indep. Sch. Dist., 607 F.3d 1003, 1008 (5th Cir. 2010).

9 Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 292 (5th Cir. 2009) (quoting 

Michael F., 118 F.3d at 249). 10 20 U.S.C. § 1412(a)(10)(C)(ii). 

11 Michael F., 118 F.3d at 248 (citing Sch. Comm. of Town of Burlington, Mass. v. Dep’t 

of Educ. of Mass., 471 U.S. 359, 370 (1985)). 

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IDEA and (2) the IEP was not “reasonably calculated to enable [the disabled 

child] to receive educational benefits.”12

The Supreme Court has set forth four factors for determining if an IEP 

is reasonably calculated: “(1) the program is individualized on the basis of 

student’s assessment and performance; (2) the program is administered in the 

least restrictive environment; (3) the services are provided in a coordinated 

and collaborative manner by the key ‘stakeholders’; and (4) positive academic 

and non-academic benefits are demonstrated.”13 “[T]hese factors are . . . 

intended to guide a district court in the fact-intensive inquiry of evaluating 

whether an IEP provided an educational benefit,” and no factor is afforded 

more or less weight than the others.14

3. Analysis 

Underlying this dispute is the question whether the district court 

articulated a standard that is in line with the standard articulated by the 

Supreme Court in the recent decision in Endrew F. v. Douglas County School 

District.15 There the Court rejected the Tenth Circuit’s standard that an IEP 

was “adequate as long as it is calculated to confer an educational benefit that 

is merely . . . more than de minimis.”16 The Court held that an IEP “must be 

appropriately ambitious in light of [the child’s] circumstances” which is 

“markedly more demanding than the ‘merely more than de minimis’ test 

applied by the Tenth Circuit.”17 

 

12 Michael Z., 580 F.3d at 293 (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 

(1982)). 

13 Michael F., 118 F.3d at 253.

14 Id. at 294.

15 137 S. Ct. 988 (2017). 

16 Id. at 997. 

17 Id. at 992, 1000. 

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Here, the district court explicitly stated that “[t]he educational benefit . 

. . ‘cannot be a mere modicum or de minimis; rather, an IEP must be likely to 

produce progress, not regression or trivial educational advancement.”’ The 

court focused on the four factors from Michael F. listed above to evaluate C.G.’s 

IEP which, it stated, “guide a district court in the fact-intensive inquiry of 

evaluating whether an IEP provided an educational benefit.” The court 

extensively evaluated C.G.’s IEP then held that all four factors weighed in 

favor of concluding that her IEP was reasonable based on her specific needs 

and progress.18 Although the district court did not articulate the standard set 

forth in Endrew F. verbatim, its analysis of C.G.’s IEP is fully consistent with 

that standard and leaves no doubt that the court was convinced that C.G.’s IEP 

was “appropriately ambitious in light of [her] circumstances.”19 

C.G.’s parents and WISD set forth different versions of the facts, but the 

district court did not clearly err in concluding that the evidence supports 

WISD’s contention that C.G.’s IEP was appropriate. The record is replete with

evaluations, observations, and information regarding C.G., her needs, and her 

performance level. WISD worked with C.G.’s teachers, a psychologist, an 

educational diagnostician, her private speech provider, her parents, and others 

to align goals and strategies. There is also evidence that C.G. was making 

progress, including a statement by her father in an email to WISD on April 22, 

2013, referencing “the excellent progress [C.G.] has made since January.” 

When C.G. mastered goals during the 2012-13 school year, additional goals 

 

18 The court’s reasoning is especially persuasive considering that the burden is on 

C.G.’s parents to show that C.G.’s IEP was inappropriate. See Schaffer v. Weast, 546 U.S. 49, 

57-58 (2005); Christopher M., 933 F.2d at 1291.

19 See 137 S. Ct. at 992.

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and benchmarks were added. WISD adjusted its strategies multiple times, 

including altering C.G.’s school day in response to her parents’ many concerns. 

The burden of proof to overcome the legal presumption that the 

education program developed by the child’s school is appropriate rests on the 

parents.20 WISD could have taken different, and arguably better, approaches 

to C.G.’s IEP, but the role of the court is not to “second guess” the decision of 

the school district or to substitute its plan for the education of the student.21 

It is clear that WISD provided C.G. with an IEP that was reasonably calculated 

to enable her to make progress in light of her individual circumstances. 

B. § 504 Discrimination 

Under § 504 of the Rehabilitation Act of 1973, “[n]o otherwise qualified 

individual with a disability in the United States . . . shall, solely by reason of 

her or his disability, be excluded from the participation in, be denied the 

benefits of, or be subjected to discrimination under any program or activity 

receiving Federal financial assistance . . . .”22 C.G.’s parents claim that by 

placing every disabled student, including C.G., into the “highly restrictive” 

zoned classroom, WISD discriminated against C.G. 

The district court ruled that C.G.’s parents “cannot sustain their § 504 

claim because the School District ‘implement[ed] . . . an Individual Education 

Program developed in accordance with [IDEA].’”23 The parents responded that 

their § 504 claim is independent of the IDEA claim and cannot be dismissed 

merely because the IDEA claim fails. 

 

20 Schaffer, 546 U.S. at 57-58; Christopher M., 933 F.2d at 1291.

21 Flour Bluff Indep. Sch. Dist. v. Katherine M., 91 F.3d 689, 693 (5th Cir. 1996). 

22 29 U.S.C § 794(a).

23 Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 994 (5th Cir. 2014) 

(alterations in original). 

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To determine if a § 504 claim is independent of an IDEA claim and may

thus be sustained on its own, the court asks (1) “could the plaintiff have 

brought essentially the same claim if the alleged conduct had occurred at a 

public facility that was not a school – say, a public theater or library?” and (2) 

“could an adult at the school – say an employee or visitor – have pressed 

essentially the same grievance?”24 

C.G.’s parents allege that their § 504 claim (1) could have been brought 

in a public facility and (2) could have been bought by an adult. We disagree.

The parents’ § 504 claim incorporates an identical factual background 

expressed in the same language as their IDEA claim.25 In fact, their insistence 

that the zoned classroom produced a “highly restrictive” classroom setting, 

parrots the language of the IDEA’s requirement that students be educated in 

the least restrictive environment possible. The district court did not err in 

concluding that the § 504 claim should be dismissed because it was not 

independent of C.G.’s IDEA claim. 

III. 

CONCLUSION

We AFFIRM the district court’s judgment. 

 

24 Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 756 (2017) (emphasis in original). 25 See e.g. Ellenberg v. New Mexico Military Inst., 478 F.3d 1262, 1267 (10th Cir. 2007); 

M.P. v. Indep. Sch. Dist. No. 721, 439 F.3d 865, 868 (8th Cir. 2006).

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