1 20 U.S.C. § 1400, et. seq.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40720

_____________________

FLOUR BLUFF INDEPENDENT SCHOOL DISTRICT,

Plaintiff-Appellant,

versus

KATHERINE M. BY NEXT FRIEND LESA T.,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Southern District of Texas

_______________________________________________________

July 30, 1996

Before REAVLEY, GARWOOD and DeMOSS, Circuit Judges.

REAVLEY, Circuit Judge:

The Flour Bluff Independent School District (Flour Bluff)

appeals a district court’s placement decision of Katherine M.

(Katie), a hearing impaired student. The district court

determined that Katie’s 1994-95 Individual Educational Plan (IEP)

was not based upon her individual needs, and that her IEP

violated the least restrictive environment provisions of the

Individuals with Disabilities Education Act (IDEA).1 We reverse

the judgment because the district court misconceived the

proximity factor in Katie’s placement decision.
 

2 20 U.S.C. § 1412. 

 

3 20 U.S.C. § 1412(4); 34 C.F.R. §§ 300.340-300.350.

 

4 34 C.F.R. §300.344.

 

5 Tex. Educ. Code § 29.301(1) (effective May 30, 1995).

2

I. IDEA

The Individuals with Disabilities Education Act requires

states to provide disabled children with a “free appropriate

public education” in return for acceptance of federal funds.2

The student’s curriculum is uniquely tailored to the individual

student through the annual implementation of an “individualized

education program” or “IEP.”3 The IEP is produced by a qualified

representative of the local education agency, the child’s

teacher, the child’s parents or guardian, other individuals at

the discretion of the agency or the parent, and where

appropriate, the child.4 In Texas, this is called the Admission,

Review and Dismissal (ARD) committee.5 In part, Congress defined

the IEP as follows:

The term ‘individualized education program’ means a written

statement for each child with a disability developed in any

meeting by a representative of the local educational agency

or an intermediate educational unit who shall be qualified

to provide, or supervise the provision of, specially

designed instruction to meet the unique needs of children

with disabilities, the teacher, the parents or guardian of

such child, and whenever appropriate, such child, which

statement shall include --

(A) a statement of the present levels of educational

performance of such child, 

(B) a statement of annual goals, including short-term

instructional objectives,

(C) a statement of the specific educational services to

provided to such child, and the extent to which such
 

6 20 U.S.C. § 1401(20).

 

7 20 U.S.C. § 1412(5); 34 C.F.R. § 300.550-300.556.

 

8 20 U.S.C. § 1412(5)(B).

 

9 34 C.F.R. § 300.552.

3

child will be able to participate in regular

educational programs,

* * *

(E) the projected date for initiation and anticipated

duration of such services, and

(F) appropriate objective criteria and evaluation

procedures and schedules for determining, on at least

an annual basis, whether instructional objectives are

being achieved.

In the case where a participating agency, other than the

educational agency, fails to provide agreed upon services,

the educational agency shall reconvene the IEP team to

identify alternative strategies to meet the transition

objectives.6

Once a child’s educational program is determined, the local

school district must then attempt to place the student in the

“Least Restrictive Environment” or “LRE.”7 For example, one of

the main concerns of Congress is that the state attempt, as best

it can, to mainstream the child, that is, educate the disabled

child among non-disabled children.8 Further, the public agency

shall ensure that,

(a) The educational placement of each child with a

disability--

(1) Is determined at least annually;

(2) Is based on his or her IEP; and

(3) Is as close as possible to the child’s home.

* * *

(c) Unless the IEP of a child with a disability requires

some other arrangement, the child is educated in the school

that he or she would attend if nondisabled.

(d) In selecting the LRE, consideration is given to any

potential harmful effect on the child or on the quality of

services that he or she needs.9
 

10 See Tex. Educ. Code § 30.081 et. seq. (effective May

30, 1995). Similar provisions for regional day schools were

formerly governed by Tex. Educ. Code § 11.10.

4

II. Katie and her IEP

Katie, a deaf student, resides on the northern end of Padre

Island in the Flour Bluff Independent School District. Texas has

a system of regional day schools for students with

disabilities.10 They are located at sites throughout the state

and draw students from the surrounding communities. Katie began

to attend the state’s regional day school located in the

neighboring Corpus Christi Independent School District at the age

of 18 months. The regional day school has facilities attached to

an elementary, middle and high school in the Corpus Christi

Independent School District. The regional day school for

elementary students is associated with Calk Elementary. This

enables the day school to provide disabled students with a wide

variety of services, ranging from completely independent classes

to support services for students in mainstreamed classes. 

The Admission, Review and Dismissal committee, named by the

Flour Bluff district, decided Katie’s IEP for the 1994-95 school

year in April of 1994. The IEP provided for placement in

mainstream classes with an interpreter and additional assistance

for speech therapy, audiological management services, and a deaf

education teacher. By two months into her third grade year (the

1994-95 school year), Katie was receiving only support services

from the day school and attending fully mainstreamed classes at
 

11 At the request of Katie’s mother, the ARD agreed to no

longer require services of a deaf education teacher.

 

12 20 U.S.C. § 1415(b)(2); 34 C.F.R. § 300.506(a).

5

Calk Elementary with the assistance of a sign interpreter.11 In

addition to her regular classes at Calk, Katie was seen 90

minutes per week with a day school speech pathologist and 60

minutes per week with the Corpus Christi Independent School

District speech pathologist. During her attendance at Calk, she

was a straight-A honor roll student.

In December of 1994, Katie’s mother requested that Katie be

transferred to the school she would otherwise attend in Flour

Bluff. Calk Elementary and Flour Bluff are approximately 16 and

9 miles, respectively, from Katie’s home. The ARD committee

determined that it would not change Katie’s placement unless the

transfer would bestow a greater benefit upon her. The committee

identified four factors for this determination. They included:

(1) the comprehensiveness of the Regional Day School

Program;

(2) unlike Flour Bluff elementary, which has no deaf

students, the Regional Day School Program offers Katie the

opportunity for relationships with non-hearing as well as

hearing peers;

(3) the Regional Day School Program offers Katie the

opportunity to use different interpreters; and

(4) a placement at Flour Bluff Elementary would not provide

Katie an educational benefit superior to the benefit she

receives from the Regional Day School Program.

Under the regulations governing IDEA, Katie sought review of

the ARD decision by a state agency hearing officer.12 These

regulations provide for a due process hearing where the district
 

13 34 C.F.R. §§ 300.504 and 300.506.

 

14 20 U.S.C. § 1415; 34 C.F.R. § 300.511.

 

15 34 C.F.R. § 300.552.

6

refuses, among other things, to change the educational placement

of a child.13 The hearing officer determined that Katie’s IEP

was not based upon her individual needs in that the “ARD failed

to consider placing Katie at the school as close as possible to

her home.” As a part of her analysis, the hearing officer

determined that “[c]onsidering the prominent placement in the

federal regulations of the close-to-home provisions, . . . [that

factor] is to be accorded significant weight.” The hearing

officer granted Katie’s request for a transfer to Flour Bluff.

Flour Bluff filed a civil action in district court for

review of the hearing officer’s decision.14 The district court

found that the ARD violated the procedural requirements of IDEA

by not considering Katie’s individual needs when devising her

IEP. Further, the court found that the evidence from the trial

“shows that the ARD committee focussed on whether Flour Bluff

could offer a program superior to the Regional Day School, rather

than addressing Katie’s individual needs.” The court indicated

that Flour Bluff’s evidence concerning the cost of the transfer

was minimal, only impacting the school supply funds. Finally,

the court found that the school district failed to consider

placing Katie close to home, as required by IDEA.15 Therefore,

the IEP was not based upon her individual needs. The court

ordered that she be transferred to Flour Bluff, and that Flour
 

16 Salley v. St. Tammany Parish School Bd., 57 F.3d 458,

462 (5th Cir. 1995); Christopher M. v. Corpus Christi Indep. Sch.

Dist., 933 F.2d 1285, 1289 (5th Cir. 1991).

 

17 Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048

(5th Cir. 1989). 

 

18 Salley, 57 F.3d at 463; Christopher M., 933 F.2d at

1289.

7

Bluff hire an interpreter and contract out for Katie’s remaining

services. Flour Bluff appeals.

III. Discussion

“The district court’s decision that an IEP fulfills the

requirements of IDEA is a mixed question of fact and law and, as

such, we subject this determination to a de novo review.”16 We

are mindful, however, of our appropriate role in this regard.

Congress left the choice of educational policies and methods

where it properly belongs--in the hands of state and local

school officials. Our task is not to second guess state and

local policy decisions; rather, it is the narrow one of

determining whether state and local school officials have

complied with the Act.17

We defer to the district court’s underlying factual findings,

unless they are clearly erroneous.18

We begin with two important clarifications. First, this

case does not raise the question of whether or not Katie should

be mainstreamed. The regional day school Katie attended was

attached to Calk Elementary and provided for fully mainstreamed

classes when appropriate. Therefore, Katie’s reliance on Daniel
 

19 34 C.F.R. § 300.344.

 

20 34 C.F.R. § 300.533(a)(3)-(4). 

8

R.R. v. State Bd. of Educ., 874 F.2d 1036, 1039 (5th Cir. 1989),

and other cases concerning mainstreaming are not controlling.

Second, the IEP governs the services a child is to be

provided and following that determination, the placement of the

student is governed by the Least Restrictive Environment

analysis. These are two separate inquiries. In Katie’s case the

decision was made by the same ARD committee, but that does not

necessarily have to be the case. The IEP is developed, reviewed

and revised through a meeting or a series of meetings which

includes a special education representative of the public agency

(other than the teacher), the child’s teacher, one or both of a

child’s parents, and the child if appropriate.19 The placement

decision of a child is ”made by a group of persons, including

persons knowledgeable about the child, the meaning of the

evaluation data, and the placement options” who also ensure that

placement decision is made in conformity with the rules governing

the LRE.20 We do not intend to indicate that a school must have

two separate committees to determine the IEP and placement of a

student, only that a district could do so. Our focus today

concerns the separateness of the IEP and placement decisions, and

the fact that the regulations contemplate that those decisions

may be made by different groups reflects their separation.

State agencies are afforded much discretion in determining

which school a student is to attend. Under the regulations
 

21 34 C.F.R. § 552(c).

 

22 In Appendix C of Part 300 of the Regulations entitled

“Notice of Interpretation,” the commissioner answered the

question of whether a “public agency itself [must] provide the

services set out in the IEP” as follows:

The public agency responsible for the education of a child

with a disability could provide IEP services to the child

(1) directly, through the agency’s own staff resources, or

(2) indirectly, by contracting with another public or

private agency, or though other arrangements. In providing

the services, the agency may use whatever State, local,

Federal, and private sources of support are available for

those purposes. . . .

32 C.F.R. Pt. 300, App. C, question 46.

 

23 Barnett v. Fairfax County School Bd., 927 F.2d 146, 153

(4th Cir.), cert. denied, 112 S.Ct. 175 (1991); Murray by and

through Murray v. Montrose County School Dist., 51 F.3d 921, 929

(10th Cir.), cert. denied, 116 S.Ct. 278 (1995).

 

24 Murray, 51 F.3d at 930; but see Oberti v. Board of

Educ., 995 F.2d 1204, 1224 n.30 (3d Cir. 1993).

9

governing the placement of a student in the “Least Restrictive

Environment,” a child should attend his or her neighborhood

school unless the child’s IEP requires arrangements that do not

exist at that school.21 In fact, if the child requires such

arrangements, the school district has numerous options (public or

private) on placing the student.22 The regulations, not the

statute, provide only that the child be educated “as close as

possible to the child’s home.” However, this is merely one of

many factors for the district to take into account in determining

the student’s proper placement.23 It must be emphasized that the

proximity preference or factor is not a presumption that a

disabled student attend his or her neighborhood school.24
 

25 20 U.S.C. § 1414(d).

 

26 There was also evidence that Katie required the use of

a hearing device called a “phonic ear.” The evidence indicates

some maintenance services for this device may have been provided

by the regional day school.

10

IDEA expressly authorizes school districts to utilize

regional day schools such as the one at issue here,25 and we

think the importance of these regional programs is obvious. 

Undoubtedly there are a limited number of interpreters, speech

pathologists with backgrounds in deaf education, and deaf

education teachers; and, by allocating these limited resources to

regional programs, the state is better able to provide for its

disabled children. Additionally, by placing these educators at

regional centers, those centers are better able to provide

further training for those educators and make substitutions for

absent educators. 

Of the 400 to 500 students enrolled at Calk Elementary there

are approximately 32 students attending the regional day school. 

In Katie’s mainstreamed class there was one other fully

mainstreamed deaf student, and one other part-time mainstreamed

student. The regional day school provided the interpreters,

speech therapists, and other support services for the deaf

students at Calk.26

There were approximately 15 sign interpreters in the

regional day school assigned to the elementary, middle and high

schools associated with the regional program within the Corpus

Christi Independent School System. Of those 15, only 10 were
 

27 In October of 1994, Katie’s mother started her own

interpreter business. After that date she remained a contract

employee with the regional day school on a part-time basis.

11

certified. The day school had obtained a waiver from the Texas

Education Agency for the remaining five. In the year prior to

the onset of this litigation, the regional day school had

received only five applicants for four openings at the school. 

There was testimony that this was fairly representative of the

supply of interpreters for the day school. In fact, the regional

day school could only meet its demand by hiring uncertified

interpreters. 

Katie’s mother, who was the lead interpreter at the regional

day school, testified concerning the procedures implemented in

staffing interpreters at the regional day school.27 Because of

the short supply of interpreters, substitutions were difficult

when interpreters were ill or otherwise unavailable. The

regional day school provided a mentoring program and staff

development programs for their interpreters. The interpreters’

proficiency levels were increased through the school’s extensive

evaluation system. The more proficient interpreters were

allocated to the advanced grades because of the increased

complexity of the subjects. 

The evidence showed that the supply of speech pathologists

was equally low. At the regional day school at Calk Elementary,

both of the two speech pathologists had experience in deaf

education, but this was unusual. Often the regional day school

was without speech pathologists with that experience. In fact,
12

it was very difficult to hire a speech pathologist even without

experience in deaf education. The superintendent of Flour Bluff

testified that in September of 1994 the district began

advertising for two speech therapists. In April or May of the

next year they finally received four applicants, none of whom had

more than a bachelor’s degree. The district was forced to hire

two of those four.

The rationale for creating a regional day school can also be

seen by examining Katie’s third grade class. If all three

students were to attend different schools, each district would be

required to hire an additional interpreter from the already low

supply. The scarcity of resources would be worsened if each

child in the various grades attending the regional school were to

return to his or her home district. We believe that the decision

to create the regional day schools is a sound policy decision

that was intended to be left to the state.

Distance remains a consideration in determining the least

restrictive environment. The regulations say that it is. The

child may have to travel farther, however, to obtain better

services. And in this case, distance is not controlling -- from

Katie’s home to the Flour Bluff school is approximately 9 miles,

from her home to Calk Elementary it is 17 miles.

Flour Bluff School District was free to utilize the regional

day school for its disabled students. Educating Katie “close to

home” was only a factor for the school district to consider when

determining her placement in the Least Restrictive Environment;
 

28 See Barnett, 927 F.2d at 152 (“Whether a particular

service or method can feasibly be provided in a specific special

education setting is an administrative determination that state

and local school officials are far better qualified and situated

than are we to make.”)

13

and with the proximity of the regional day school to Katie’s

home, that factor was not controlling.

The district court erred in relying upon the hearing

officer’s conclusion that Flour Bluff did not “think carefully

and seriously” about placing Katie in her neighborhood school. 

The hearing officer’s conclusion was based upon her

interpretation of the regulations that the “close to home”

provision should be “accorded significant weight.” While it is

not clear that the district court similarly interpreted the

regulations, the district court did presume incorrectly that her

neighborhood school was the proper placement even though Katie

required other arrangements which were not then in existence at

Flour Bluff. Nor did the district court apparently afford any

weight to the testimony of Flour Bluff officials concerning the

scarcity of educational resources upon which the district had

grounded its policy decision to send disabled students who

required certain services to the regional day school.28 Rather,

the court focused simply upon the costs of implementing the

individual program instead of upon both the financial and

resource costs of duplicating the programs. Therefore, because

we read the district court’s judgment to impose proximity as a

presumptive factor in the placement decision and because the

district court failed to consider Flour Bluff’s policy
 

29 20 U.S.C. § 1415(e)(3); 34 C.F.R. § 300.513(a).

14

consideration in sending Katie to the regional day school, we

reverse that judgment.

IV. Conclusion

During oral arguments, we learned that Katie had been

transferred to Flour Bluff to comply with prior orders in the

case. Under IDEA’s “stay-put” provisions, Katie should have

remained at Calk Elementary during the pendency of this

litigation, unless the move was agreed upon by the district and

Katie’s mother.29 One of the obvious purposes of the “stay-put”

provision is to reduce the chance of a child being bounced from

one school to another, only to have the location changed again by

an appellate court.

We remand this case to the district court, although the

proceedings there may require nothing more than dismissal. The

IEP for Katie for the forthcoming year will soon be completed

and, consistent with this opinion, the ARD committee should

consider the fact that Katie is currently attending Flour Bluff

and that Flour Bluff may now have the support services she

requires. 

REVERSED and REMANDED.