## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 98-20546

_______________



### HOUSTON INDEPENDENT SCHOOL DISTRICT,

Plaintiff-Counter DefendantAppellee,

VERSUS



### BOBBY R.; JOYCE R.; and CAIUS R.,

Defendants-Counter ClaimantsAppellants.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________ January 20, 2000

Before HIGGINBOTHAM and SMITH,

Circuit Judges, and FALLON, District

Judge. *

JERRY E. SMITH, Circuit Judge:

Caius R., a minor child, by and through his

parents, Bobby R. and Joyce R., initiated this

action against the Ho ust on Independent

School District (“HISD”) in a claim before a

Texas E d ucation Agency (“TEA”) hearing

officer. The TEA determined that HISD had

not provided Caius a “free appropriate public

education” as required by the Individuals with

Disabilit ies Education Act, 20 U.S.C. § 1400,

et seq. (“IDEA”), and the officer o rdered HISD to make certain changes in Caius’s

education program. On appeal from the

TEA’ s decision, the district court decided in

favor of HISD. Concluding that the district

provided a free appropriate public education in

compliance with the IDEA, we affirm.

I.

Caius a t t ended school in HISD for

approximately seven

years before being

remov ed t o private school in 1997. Within

HISD, he struggled from t he beginning, in

large part because of dyslexia. In kindergarten

and first grade, he experienced difficult ies in

phonics. Alt hough in 1992 HISD

recommended that he repeat the fir st grade,

preliminary evaluations of his need for special

education indicated that he did not qualify for

these special services.

* District Judge of

the Eastern District of

Louisiana, sitting by designation.

## 2

During the summer preceding the 1992-93

sc ho o l year, Caius’s parents sought an

independent evaluation of his learning abilit ies.

After conducting a battery of tests, a

University of Houst o n researcher found that

Caiu s suffered from dyslexia and attention

deficit disorder. Caius then enro lled in a

private school for a substantial porti on of the

1992-93 year . Although HISD had

recommended repeating first grade, Caius was placed in a second grade class.

In March 1993, Caius returned to HISD at

Mitchell Elementary and, i n t he fall of 1993,

began third grad e t here. After experiencing

more difficulties, he was referred in December

1993 for a special education evaluation, which

revealed deficiencies in reading, oral language,

and wr it t en language skills. Pursuant to the

IDEA, the HISD convened an Admis sion,

Review, and Dismissal (“ARD”) Committee in

Janua ry 1994 to determine the appropriate

means of addressing Caius’s learning disability.

Having found that his was speech

handicapped, the ARD Committee drafted an

Individual Education Plan (“IEP”) that called

for ten hours of reading and language resource placement and one hour of speech therapy per

week. Caius continued under the January

1994 IEP during the remainder of the 1993-94

school year.

At the beginning o f the 1994-95 year,

HISD placed Caius in the fourth grade. HISD

experienced some difficulties during that year

in implement ing the speech therapy provision

of the IEP, so from January 18, 1995, through

May 17, 1995, a speech therapist wa s not on

staff at Mitchell Elementary . To compensate

Caius for the lost speech therapy, HISD

authorized extended-year service s for him.

Consequently, during t he summer following

the 19 94-95 school year, Caius received

twenty-five hours in compensatory speech

therapy.

In the meantime, however, Caius’s parents voiced object ions regarding the

implementation of his IEP. In particular, they

complained of HISD’s failures to institute IEP

modifications su ch as highlighted texts, modified tests, and taped lectures.

Before the 1995-96 year, HISD and Caius’s

parents engaged in extensive discuss i ons regarding the school he would attend.

Because it was determined that he learned

more readily when information was presented

in a mult is e nsory fashion, his parents sought

p lacement at an HISD school that c ould

administer an Alphabetic Phoni c s (“AP”)

program. Although an alternative placement

could not be established, HISD agree d to

provide an itinerant teacher to instruct Caius at

Mitchell Elementary until a permanent teacher

skilled in AP could be found.

Caius began the AP program in the fall of

1995. Although his instructo rs changed, the

AP program was provided throughout the

1995-96 school year. Nonetheless, his parents

continued to criticize HISD’s implementation

of several modifications to the IEP.

## 3

During the s pring and fall of 1996, the

ARD Committee convened to develop an IEP

for Caius’s sixth grade year. Under the IEP,

he was placed at Codwell Elementary. The

plan included seven modifications to his

educational program: modified tests, taped

texts, highlighted texts, extende d time for

assignments, shorten ed assignments, calculator

use, and ta ped assignments. Furthermore,

because no teacher at Codwell was trained in

AP techniques, HISD began a search for

another AP instructor for Caius.

Despite its eff

orts, for two months Caius

did not receive AP training. During that time,

his parents refused to accept the compensatory

AP services offer e d by HISD. Through their

complaints to HISD, they also questioned the

amount of progress Caius was making under

th e IEP and the extent to which his teachers

were implement ing the modifications to t h e August 1996 IEP.

In October 1996, Caius’s parents sought

administrative review of the IEP . Following

two days of hearings in February 1997, the

T EA hearing officer filed written findings of

fact and conclusions of law, deciding that the

reading and language goals set forth in Caius’s

IEP’s were “reasonable and calculated to provide

. . . an educ at io nal benefit.” But she

also found that HISD had failed to implement,

“consistently or appropriately,” an AP

program, IEP modifications, o r speech

ther apy. The hearing officer thus concluded

that HI S D’s failures in these areas had

deprived Caius o f a “free appropriate public

education” under the IDEA.

Following entry of the hea ring officer’s

decision, the parties failed to negotiate a new

IEP for Caius for the 1997-98 school year. In

response, his parents sought private

compensatory s ervices during the summer of

1997, and, before the start of the 1997-98

year, his parents withdrew him from HISD and

placed him at a private school at their expense and without HISD’s approval.

HISD appealed the TEA hearing officer’s

decision to the district court, which, on cross motions f o r summary judgment, held that the

TEA had erred in its analysis of whether Caius

had indeed received a “free appropriate public

education” as required by the IDEA. The

court reasoned that he had shown

improvement in most areas of study and

theref o re had received an educational benefit

in accordance with the goals of the IDEA.

The co u rt then granted HISD’s motion for

summary judgment and denied Caius’s cross

motion for summary judgment. The court also

dismissed Caius’s counterclaim for

reimbursement for t he costs of the private

compensatory services.

II.

Caius challenges the determin ation that

HISD provided hi m with a “free appropriate

public education” in accor dance with the

IDEA, 20 U.S.C. § 1400, et seq. S pecifically,

he poi nt s t o HISD’s failure to provide a

speech therapist for a substantial porti on of the

1994-95 term, it s failure to provide an AP

program for approximately two months during

the beginning of the 1996- 1997 year, and its

general failures co nsistently to provide

highlighted and taped texts in accordance with

the IEP.

HISD responds first by acknowledging the

failures summarized by Caius and by noting

that, as a result, there are no genuine issues of

materi al fact that would preclude summary

judgment. HISD disagrees, however, with the

legal conclusions to be dr awn from those

failures. It argues that, rather than holding

that any failure to implement an element of an

IEP amount s t o denial of a free appropriate

public education

under the IDEA, we should

look to the overall educational benefit received

by the child and to whether the IEP was

substantially or materially implemented.

A.

The IDEA is designed to e ncourage state

and local education agencies to extend services

to children that are deemed learning disabled.

Under the statute, to receive fede ral funding,

a state must establish special educati on and

related services that “are provi ded i n conformity with the individualized education

## 4

program required under section 1414(a)(5) of

this title.” 20 U.S.C. § 1401(17)(D) (emphasis

added). The term “individualized education

program” is defined as

a written statement for e a ch child with a

disabi lit y developed in any meeting by a

re presentative of the local educational

agency

. . . which statement shall include 

### SS

(A) a statement o f the present levels of

educational performance of such child,

(B) a st atement of annual goals,

including short-term instructional

objectives,

(C) a statement of the specific

educational services to be provided to

such child, and the extent to which such

child will be able to participate in regular

educational programs, . . .

(E) the projected date for initiation and

anticipated duration of such servi c es,

and

(F) approp riate objective criteria and

evaluation procedures and schedules for

determining, on at least an annual basis,

whether instructional objectives are

being achieved.

20 U.S.C. § 1401(20).

The crafti ng o f an IEP is subject to

extensive procedural and substantive

require ments. For instance, the IDEA

provides procedural safeguards that allow the

parents an opportuni ty to challenge the

establishment or implementation of the IEP in

an “impartial due process hearing which shall

be conducted by the State educational agency

. . . as determined by

State law.” 20 U.S.C.

§ 1415(b)(2). In Texas, the hearing is

conducted before the TEA.

The IDEA also provides for civil actions

and jurisdiction in federal district court

“without regard to the amount in controversy.

In any action brought under this paragraph the court shall re ceive the records of the

administrative proceedings, shall hear

additional evidence at the request of a party

, and, basing its decision on the preponderance

of the evidence, shall grant such relief as the

court determines is appropriate.” 20 U.S.C.

§ 1415(e)(2). As additional protection for the

parents and the disabled child, “during the

pendency of an y proceedings conducted

pursuant to this sect ion, unless the State or

local educational agency and the par ents or guardian otherwise agr ee, the child shall

remain in the then current educational

placement of such child.” 20 U.S.C.

§ 1415(e)(3)(A).

The Department of Education has

int erpreted the IDEA to require each public

agency to “(1) Provide special edu cation and

related services to a child with a disabilit y in

accordance with the child’s IEP; and (2) Make

a good faith effort to assist the child to achieve

the goals and objectives or benchmarks listed

in the IEP.” 34 C.F.R. § 300.350(a) (emphasis

added). That interpretation provides,

however, that the IDEA “does not require any

agency, teacher, or other person be held

accountable if a child does not achieve the

growth projected in the annual goals and

benchmarks or objectives.” Id. § 300.350(b).

B.

The “free appropriate public education”

requirement of the IDEA requires tailoring to

t he unique needs of the handicapped child by

mean s of an IEP. S ee Board of Educ. v. Rowley

, 458 U.S. 176, 181 (1992).

“Noticeabl

y absent from the language of the

statute is any substantive standard prescribing

the level of educati on to be accorded

handicapped children.” I d. at 189 . After a

lengthy an alysis of the statute, its purposes,

and of the legislative intent with respect to the

provision o f educational services to disabled

children, the Rowley Cour t hel d that an

“ ‘appropriate education’ is provided when

personalized educational services are

provided.” Id. at 197.

Accord i ngly, the IDEA “generates no

additional requ irement that the services so

## 5

provided be sufficient to maximize each child’s

potential.” I

d. at 198. This, the Court opined,

would be “further than Congress intended to

go.” I d. at 199. Instead, the IDEA is aimed at

providing disabl ed children “access” to a

public education, though that access must still

“be sufficient to confer some educ a tional

benefit upon the h andicapped child.” I d. at

2 0 0 (emphasis added). In the end, then, “the

‘basic floor of opportunity’ p r ovided by the

Act consists of access to specialized

instructio n and related services which are

indi vidually designed to provide educational

benefit to the handicapped child.” Id. at 201.

Next, the Court noted that while the

determination whether children are receiving

sufficient edu cational benefits to satisfy the

requirements of the IDEA “presents a more

difficult problem,” a

co urt’s inquiry in suits

br ought under § 1415(e)(2) (as here) should

be analyzed under a two-pronged framework.

“First, has the State complied with procedures

set forth in the Act? And second, is the [IEP]

developed th

r ough the Act’s procedures

reasonably calculated to enable the ch ild to

receive educational benefits ? ” Id. at 206-07

(emphasis added). The Court noted that under

the second prong, “the achievement of passing

marks and advancement from grade to grade

will be one important factor in determining

educational benefit.” Id. at 207 n.28.

Caius does not challenge the IEP or any

other HISD actions on the basis of the first

prong of the Rowley inquiry 

### SS that is, he does

not assert that HISD did not comply with the

lengthy procedures prescribed by the IDEA.

And it is doubtful that such a challenge would

have any merit. 1 Therefore, the issue is whether the IEP was “reasonably calculated to

enable [Caius] t o receive an educational

benefit.”

1 S e e Decision of the Hearing Officer ,Docket

No. 089-SE-1096, noting:

In this case, issues related to any procedural

complaints were withdrawn prior to the

be ginning of the hearing. Indeed, the

evidence showed that Caius’ parents were

active participants in each and every ARD

meeting and that their recommendations and

(continued...) (...continued)

requ ests in both programming and

placement decisions were often accepted by

the ARD Committee. The IEP’s at issue

were the result of col laborative efforts

between parents and school, and I find,

therefore, that the district did comply with

the procedural requirements of the IDEA.

## 6 III.

In Cypress-Fairbanks Indep. Sc h

. Dist. v.

Michael F.

, 118 F.3d 2 45, 247-48 (5th Ci r. 1997), we summarized the standard under

Rowley . An IEP

need not be the best pos sible one, nor

one that will maximize the child’s

educational potential; rather, it need

only be an education that is specifical l y designed to meet the child’s unique

needs, supported by services t hat will

permit him “to benefit” from the

instruction. In other words, the IDEA

guarantees o nly a “basic floor of

op po rtunity” for every disabled child,

consisting of “specialized i nstruction and

related services which ar e individually

designed to provide educational

benefit.” Nevertheless, the educational

benefit to which the Act refers and to

which an IEP must be geared cannot be

a mere modicum or de minimis; rather,

an IEP must be “likely to produce

progress, not regression or trivial

educational advancement.” In short, the

educational benefit that an IEP is

designed to achi eve m ust be

“meaningful.”

(Internal citations omitted.)

When a district court reviews a state

hearing officer’s decision in an impartial due

process hearing under the IDEA, it must

receive the record of the administrative

p roceedings and is then required to take

additional evidence at the request of any party.

20 U.S.C. § 1415(e)(2). It must accord “due

weight” to t he hearing officer’s findings, s ee Rowley

, 458 U.S. at 206, but must ultimately

reach an independent decision based on a

preponderance of the evidence. ” CypressFairbanks

, 118 F.3d at 252. Thus, the district

court’s review is “virtually de novo.” Id.

Our review of the district court is a mixed

q uestion of fact and law that is revie wed d e

novo

, but the underlying fact-findings, “such as findings that a disabled student obtained

educational benefits under an IEP, are review e d for clear error.” I d. A party

attacking the approp riateness of an IEP

established by a local educational agency bears

the burden of showing w h y the IEP and

resulting placements were inappropriate under

the IDEA. Id.

A.

In Cypress-Fairbank

s , we set forth four

factors that serve a s an indication of whether

an IEP is reasonably calculate d to provi de a

meaningful educational benefit under the

IDEA. These factors are whether

(1) the program is individualized on the

basis of the stud ent ’s assessment and

performance;

(2 ) t he 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.

118 F.3d at 253.

Correctly, HISD argues in its brief, and the

district court noted, that only the last two of

these factors are seri o usly in question. First,

Caius does not argue that the IEP was not

individualized in accordance with the first

factor; indeed, such an argument would seem unavailing where the TEA hearing officer had

already concluded that the IEP was

“reasonably calculated to provide Caius with a meaningful educational benefit.” Second, the

“least-restrictive-environment” factor sh o uld

be viewed in light of the IDEA’s “preference

for ‘mainstreaming’ handi capped

children 

### S S educating them wi t h

nonhandicapped children.” R owley

, 458 U.S.

at 181 n.4. Because Caius was

“mainstre amed” and does not now challenge

the IEP on the ground that it was not implemented in the least restrictive means, this

second factor is likewise not at issue.

## 7

The third and fourth factors, however, call

for a mo re thorough analysis. The

requirement that the educational services be

provided in a “coordinated and collabo rative

manner by the key stakeholders” presen t s a

more difficult issue. On t he one hand, the

district court concluded that HIS D met this

requirement because “HISD provided the

m o difications and services outlined in Caius’

IEP, allowed Caius’ parents to air grievances,

and regularly conducted AR D Committee

meetings to evaluate Caius’ progress under the

IEP. ” While the court opined that the “most

significant failing” in this area involved the fact

that for substan t ial portions of the 1994-95

academic year a speech the r apist was not

available at Mitc hell Elementary, the court

nonetheless felt that the compensatory services

o ffered the following summer were suffic ient

to remedy any shortcoming. And with respect

to HISD’s inabilit

y to provide an AP program

for tw o mo nths during the beginning of the

1996-97 year, HISD argues that the school

offered compensatory AP service s (which

Caius’s parents refused) until the school could

hire an AP teacher. The court agreed wit h

HISD with respect to the AP services, though

it did not carefully analyze the issue.

On the other hand, the hearing off icer

concluded that HISD had failed on both

ac co unts. That is, she concluded that the

comp ensatory speech therapy servi ces provided by HISD did not cure i t s earlier

fail ure to implement that portion of the IEP

and that the HISD had agreed to pr ovide AP

services and had failed to do so in a consistent

and proper manner. These conclusions would

support Caius’s argument that HISD failed to provide the services in a “coordinated”

manner, as would his assertion that HISD did

not provide highligh ted or taped texts i n a

consistent manner.

The district court’s primary reason for

overtu rning the hearing officer’s conclusions

seems to be its belief that local school agencies

should retain some flexibilit y in sche duling

services and, when necessary, providing

compensatory services. The court poi nted to

a Department of Educ a tion interpretive response in noting that, “as long as there is no

ch ange in the overall amount, some

adjustments in scheduling [IEP] services

should be possible (based on the pro f essional

judgment of the service provider) without

holding another IEP meeting.” 34 C.F.R. part

300, app. C, question 51 (1997). Accordingly,

t he court disagreed with the TEA hea ring

officer and concluded that the com pensatory speech therapy services were sufficient.

This conclusion is correct, particularly in

light o f the Department of Education’s

interpretive response. Moreover, with respect

to the speech therapy and AP servi ces, the

district court invited us to consider Gillette v.

Fairland Bd. of Educ.

, 725 F. Supp. 343 (S.D.

Ohio 1989), rev’d on other grounds

, 932 F.2d

551 (6th Cir. 1991), in which the court held

that a local education agency’s failure to

p rovide all the services and modificatio n s

outlined in an IEP does not constitute a per se

violation of the IDEA. In Gillette , the court

found that the local agency had provided a free

appropriate education when “ s ignificant

provisions of the IEP were followed,” even though the petitioner had clearly demonstrated

that portions of the IEP were not implemented

at all. See id. at 347-48 (emphas is added).

The same can be said here 

### SS i.e., the significant

provisions of Caius’s IEP were followed, and,

as a result, he received an educational benefit. 2

Th e approach taken in G illette seems reasonable, part icularly in light of R owley ’s

f lexible approach. Therefore, we conclude

that to prevail on a claim under the IDEA, a

party challenging the implementation of an IEP

must show more than a de minimis failure to implem ent all elements of that IEP, and,

2 While consideration of any educational benefit

received might arguably seem to conflate the third

a nd fourth prongs of the Cypress-Fairb anks

inquir y

, determination of what are “significant”

provisions of an IEP cannot be made from an exclusively ex ante perspective. Thus, one factor

to consider under an ex post analy s is would be

whe ther the IEP services that were provided

actually conferred an educational benefit.

## 8

instead, must demonst rate that the school

board or other authorities failed to implement

substantial or significant provisions of the IEP.

This ap p roach affords local agencies some

flexibilit y in implement ing IEP’s, bu t it still

holds those agencies accountable for material

failures and for providing the disabled child a meaningful educational benefit.

The fourth and final factor under CypressFairbanks is whether there have been

demonstrable academic and non-academic

benefits from the IEP. The district court

framed the issue under this inquiry as what

should be the appropriate manner for

measuring academic advancement under the

IDEA. Caius claimed that a child’s percentile

scores were the best measure of academic

performance, while HISD argued that passing

marks and advancement from g rade to grade

were suf ficient indicia to satisfy the IDEA.

And on this dispute the district court is correct

that a disabled child’s development should be

measured not by his relation to the rest of the

class, but rather with respect to the individual

st udent, as declining percentile scores do not

n ecessarily represent a lack of educational

benefit, but only a child’s inabilit y to maintain

the same level of academic progress achieved

by his non-disabled peers. As with the

a rgument in R owley that an IEP must

maximize a child’s potential, the argument that

Caius should not experience declining

percentile scores may be an unrealistic goal,

and it is a goal not mandated by the IDEA.

I nstead, the district court was correct to

fo cus on the fact that Caius’s test scores and

grade levels in math, written language, passage comprehension, calculation, applied problems,

dictation, wri t ing, word identification, broad

reading, basis readi ng cluster and proofing

improv e d during his years in HISD. 3 These improveme nt s are not trivial, and we cannot

say that the distric t co urt committed “clear

error” in its factual determination th at Caius

received an educational benefit from his IEP.

See Cypress-Fairbanks, 118 F.3d at 252.

The affidavits submitted by Caius do not change our conclusio n. First, Nancy

LaFevers, a licensed language pathologist who

examined Caius on two occasions, opined that

his progress was slower than what she would

have expected under “appropriately

implemented [AP] training” and that his

progress in word attack skills was de minimis

. Even accepting that c haracterization of his

improvement in word attack, it is not

necessary for Caius to improve in every area to

obtain an educational benefit from his IEP.

Second, Caiu s submitted an affidavit from

Donna Weinberg, the o w ner and director of

the privately-run Cliffwood School where he

began attending in 1997. She noted only that

Caius has progressed “nicely” since his arrival

at Cliffwood School and that he was adjusting

to another way of approaching his studies.

These statements say n o thing about his

development or lack thereof, during his years

3 HISD employed the widel y utilized and

accepted Woodcock Johnson intelligence and

achievement test to indicate Caius’s academic

progress. Caius’s test scores showed the following

changes from 1993 to 1995: (1) Math scores

improved from t he 1.7 grade level to 3.1; (2)

(continued...) (...continued)

written language improved from the 1.5 grade level

to 1.9; (3) passage comprehension went from 1.7 to

2.2; (4) calculation rose from 1.4 to 3.3; (5)

applied problems improved from 2.0 to 3.0; (6)

dictation went from 1.6 to 1.8; (7) writing

improved from 1.4 to 2.6; (8) word identification,

basic reading skills, and letter identificatio n rose

from 1.8 to 2.1; and (9) word attack rose from the

level of a seven-month kindergarte n student to

grade level 1.8.

From 1995 to 19 9 6, Caius showed the

following improvements: (1) Broad reading

increased from 2.1 to 3.3; (2) word identification

from 2.1 to 2.8; (3) passage comprehension from

2.2 to 3.9; (4) math from 3.1 to 4.4; (5) calculation

from 3.3 to 5.0; (6) applied problems from 3.0 to

3.6; (7) written language from 1.9 to 2.9; (8)

dictation from 1.8 to 2.8; (9) writing samples from

2.6 to 3.3; (10) basic readi ng cluster from 2.1 to

2.8; and (11) proofing from 2.3 to 2.6. Only word

attack remained the same, at the 1.8 grade level.

## 9

in HIS D, and, as a result, they do nothing to

establish that he did not receive an educational

benefit from the IEP.

F inally, Caius offered the affidavit of Jean

White, the owner and oper ator of Educere,

where Caius received private tutoring from

Whit e in 1997. Again, like Weinberg’s

statements, White’s affidavit does not establish

that Caius received no educational b e nefit

from HISD. Inst ead, her affidavit would, at

best, su pport an argum ent that the IEP

developed for Caius did not maximize his

educational potential. But as R owley held, the

IDEA does not require maximization of a disabled student’s educational potential.

There is no genu ine issue of material fact

about whether Caius received an educational

be nefit from the IEP, as demonstrated by the

objective evidence of increased scores a n d

grade levels. And because there were no

material issues o f fact presented under the

other three Cypress-Fai rbanks criteria, the

district court was correct in finding that Caius

received a free appropriate public education in

accordance with the IDEA.

B.

Likewise, the court was correct to reject

Caius’s claims for reimbursement. Although

20 U.S.C. § 1415(e)(3)(A) provides that

“during the p endency of any proceedings

conducted pursuant to this section, . . . the

child shall remain in the then current

educational placement of such child,” “parents

who unilaterally change their child’s placement

during t he pendency of review proceedings,

without the consent of state or local school

officials, do so at their own financia l risk. If

the courts ultimately determine that the IEP

proposed by the school o fficials was appropriate, the parents would be barred from

obtaining reimbursement fo r any i nterim period

in whic h their child’s placement violated

§ 1415(e)(3).” School Committee v.

Department of Educ.

, 471 U.S. 359, 373-74

(1985). Because HISD did not consent to

Caius’s tran s fer to private school, the district

court’s dismissal was appropriate. IV.

In sum, we find that the IEP was reasonably

calculated to provide Caiu s a meaningful

educational benefit, in accord ance with the

IDEA. Moreover, he received that benefit, as

demonstrated by his increased test scores in a

variety of areas. There is also no evidence that

HISD consented to his trans fer to pri vate

school during the pendency o f t his appeal.

Therefore, the district court was correct i n reversing the decision of the hearing officer, in

holding that Caius was no t denied a “free

appropriate public education,” and in denying

Caius’s claims for reimbursement.

AFFIRMED.