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 Houston Independent

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

Texas Education Agency (“TEA”) hearing

officer. The TEA determined that HISD had

not provided Caius a “free appropriate public

education” as required by the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400,

et seq. (“IDEA”), and the officer ordered

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 attended school in HISD for

approximately seven years before being

removed to private school in 1997. Within

HISD, he struggled from the beginning, in

large part because of dyslexia. In kindergarten

and first grade, he experienced difficulties in

phonics. Although in 1992 HISD

recommended that he repeat the first 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

school year, Caius’s parents sought an

independent evaluationof hislearning abilities.

After conducting a battery of tests, a

University of Houston researcher found that

Caius suffered from dyslexia and attention

deficit disorder. Caius then enrolled in a

private school for a substantial portion 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, in the fall of 1993,

began third grade there. After experiencing

more difficulties, he wasreferred in December

1993 for a special education evaluation, which

revealed deficienciesin reading, oral language,

and written language skills. Pursuant to the

IDEA, the HISD convened an Admission,

Review, and Dismissal(“ARD”) Committee in

January 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 ofspeech therapy per

week. Caius continued under the January

1994 IEP during the remainder of the 1993-94

school year. 

At the beginning of the 1994-95 year,

HISD placed Caius in the fourth grade. HISD

experienced some difficulties during that year

in implementing the speech therapy provision

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

May 17, 1995, a speech therapist was not on

staff at Mitchell Elementary. To compensate

Caius for the lost speech therapy, HISD

authorized extended-year services for him.

Consequently, during the summer following

the 1994-95 school year, Caius received

twenty-five hours in compensatory speech

therapy. 

In the meantime, however, Caius’s parents

voiced objections regarding the

implementation of his IEP. In particular, they

complained of HISD’sfailuresto institute IEP

modifications such as highlighted texts,

modified tests, and taped lectures.

Before the 1995-96 year, HISDandCaius’s

parents engaged in extensive discussions

regarding the school he would attend.

Because it was determined that he learned

more readily when information was presented

in a multisensory fashion, his parents sought

placement at an HISD school that could

administer an Alphabetic Phonics (“AP”)

program. Although an alternative placement

could not be established, HISD agreed 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 instructors 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 spring 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, extended time for

assignments,shortened assignments, calculator

use, and taped assignments. Furthermore,

because no teacher at Codwell was trained in

AP techniques, HISD began a search for

another AP instructor for Caius. 

Despite its efforts, for two months Caius

did not receive AP training. During that time,

his parentsrefused to accept the compensatory

AP services offered by HISD. Through their

complaints to HISD, they also questioned the

amount of progress Caius was making under

the IEP and the extent to which his teachers

were implementing the modifications to the

August 1996 IEP.

In October 1996, Caius’s parents sought

administrative review of the IEP. Following

two days of hearings in February 1997, the

TEA hearing officer filed written findings of

fact and conclusions of law, deciding that the

reading and language goalsset forth inCaius’s

IEP’s were “reasonable and calculated to

provide . . . an educational benefit.” But she

also found that HISD had failed to implement,

“consistently or appropriately,” an AP

program, IEP modifications, or speech

therapy. The hearing officer thus concluded

that HISD’s failures in these areas had

deprived Caius of a “free appropriate public

education” under the IDEA.

Following entry of the hearing 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 services during the summer of

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

year, his parents withdrew himfromHISD 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 for 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

therefore had received an educational benefit

in accordance with the goals of the IDEA.

The court then granted HISD’s motion for

summary judgment and denied Caius’s cross

motion forsummary judgment. The court also

dismissed Caius’s counterclaim for

reimbursement for the costs of the private

compensatory services.

II.

Caius challenges the determination that

HISD provided him with a “free appropriate

public education” in accordance with the

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

he points to HISD’s failure to provide a

speech therapist for a substantial portion ofthe

1994-95 term, its failure to provide an AP

programfor approximatelytwo months during

the beginning of the 1996-1997 year, and its

general failures consistently to provide

highlighted and taped textsin 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

material fact that would preclude summary

judgment. HISD disagrees, however, with the

legal conclusions to be drawn from those

failures. It argues that, rather than holding

that any failure to implement an element of an

IEP amounts to denial of a free appropriate

public education under the IDEA, we should

look to the overall educationalbenefit received

by the child and to whether the IEP was

substantially or materially implemented. 

A.

The IDEA is designed to encourage state

and localeducationagenciesto extend services

to children that are deemed learning disabled.

Under the statute, to receive federal funding,

a state must establish special education and

related services that “are provided in

conformity with the individualized education
4

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

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

added). The term “individualized education

program” is defined as 

a written statement for each child with a

disability developed in any meeting by a

representative of the local educational

agency . . . which statement shall includeSS

(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 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 services,

and

(F) appropriate objective criteria and

evaluation procedures and schedulesfor

determining, on at least an annual basis,

whether instructional objectives are

being achieved.

20 U.S.C. § 1401(20).

The crafting of an IEP is subject to

extensive procedural and substantive

requirements. For instance, the IDEA

provides procedural safeguards that allow the

parents an opportunity 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 receive 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 any proceedings conducted

pursuant to this section, unless the State or

local educational agency and the parents or

guardian otherwise agree, 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

interpreted the IDEA to require each public

agency to “(1) Provide special education and

related services to a child with a disability in

accordance with the child’sIEP; 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

the unique needs of the handicapped child by

means of an IEP. See Board of Educ. v.

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

“Noticeably absent from the language of the

statute is any substantive standard prescribing

the level of education to be accorded

handicapped children.” Id. at 189. After a

lengthy analysis of the statute, its purposes,

and of the legislative intent with respect to the

provision of educational services to disabled

children, the Rowley Court held that an

“‘appropriate education’ is provided when

personalized educational services are

provided.” Id. at 197. 

Accordingly, the IDEA “generates no

additional requirement that the services so
5

provided be sufficient to maximize each child’s

potential.” Id. at 198. This, the Court opined,

would be “further than Congress intended to

go.” Id. at 199. Instead, the IDEA is aimed at

providing disabled children “access” to a

public education, though that access must still

“be sufficient to confer some educational

benefit upon the handicapped child.” Id. at

200 (emphasis added). In the end, then, “the

‘basic floor of opportunity’ provided by the

Act consists of access to specialized

instruction and related services which are

individually 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 educational benefits to satisfy the

requirements of the IDEA “presents a more

difficult problem,” a court’s inquiry in suits

brought under § 1415(e)(2) (as here) should

be analyzed under a two-pronged framework.

“First, hasthe State complied with procedures

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

developed through the Act’s procedures

reasonably calculated to enable the child 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 inquirySSthat 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] to receive an educational

benefit.”

 

1

See 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

beginning 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)

requests in both programming and

placement decisions were often accepted by

the ARD Committee. The IEP’s at issue

were the result of collaborative 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. Sch. Dist. v.

Michael F., 118 F.3d 245, 247-48 (5th Cir.

1997), we summarized the standard under

Rowley. An IEP

need not be the best possible one, nor

one that will maximize the child’s

educational potential; rather, it need

only be an education that is specifically

designed to meet the child’s unique

needs, supported by services that will

permit him “to benefit” from the

instruction. In other words, the IDEA

guarantees only a “basic floor of

opportunity” for every disabled child,

consisting of“specialized instruction and

related services which are 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 achieve must 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

proceedings 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 the hearing officer’s findings, see

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

question of fact and law that is reviewed de

novo, but the underlying fact-findings, “such as

findings that a disabled student obtained

educational benefits under an IEP, are

reviewed for clear error.” Id. A party

attacking the appropriateness of an IEP

established by a local educational agencybears

the burden of showing why the IEP and

resulting placements were inappropriate under

the IDEA. Id.

A.

In Cypress-Fairbanks, we set forth four

factors that serve as an indication of whether

an IEP is reasonably calculated to provide a

meaningful educational benefit under the

IDEA. These factors are whether

(1) the program is individualized on the

basis of the 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.

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 seriously 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 should

be viewed in light of the IDEA’s “preference

for ‘mainstreaming’ handi capped

childrenS S educating them wit h

nonhandicapped children.” Rowley, 458 U.S.

at 181 n.4. Because Caius was

“mainstreamed” 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 more thorough analysis. The

requirement that the educational services be

provided in a “coordinated and collaborative

manner by the key stakeholders” presents a

more difficult issue. On the one hand, the

district court concluded that HISD met this

requirement because “HISD provided the

modifications and services outlined in Caius’

IEP, allowed Caius’ parents to air grievances,

and regularly conducted ARD Committee

meetingsto evaluateCaius’ progress under the

IEP.” While the court opined that the “most

significant failing” in this area involved the fact

that for substantial portions of the 1994-95

academic year a speech therapist was not

available at Mitchell Elementary, the court

nonethelessfelt that the compensatoryservices

offered the following summer were sufficient

to remedy any shortcoming. And with respect

to HISD’s inability to provide an AP program

for two months during the beginning of the

1996-97 year, HISD argues that the school

offered compensatory AP services (which

Caius’s parentsrefused) until the school could

hire an AP teacher. The court agreed with

HISD with respect to the AP services, though

it did not carefully analyze the issue.

On the other hand, the hearing officer

concluded that HISD had failed on both

accounts. That is, she concluded that the

compensatory speech therapy services

provided by HISD did not cure its earlier

failure to implement that portion of the IEP

and that the HISD had agreed to provide 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 highlighted or taped texts in a

consistent manner.

The district court’s primary reason for

overturning the hearing officer’s conclusions

seemsto be its beliefthat localschool agencies

should retain some flexibility in scheduling

services and, when necessary, providing

compensatory services. The court pointed to

a Department of Education interpretive

response in noting that, “as long as there is no

change in the overall amount, some

adjustments in scheduling [IEP] services

should be possible (based on the professional

judgment of the service provider) without

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

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

the court disagreed with the TEA hearing

officer and concluded that the compensatory

speech therapy services were sufficient.

This conclusion is correct, particularly in

light of the Department of Education’s

interpretive response. Moreover, with respect

to the speech therapy and AP services, 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

provide all the services and modifications

outlined in an IEP does not constitute a per se

violation of the IDEA. In Gillette, the court

found that the local agencyhad provided a free

appropriate education when “significant

provisions of the IEP were followed,” even

though the petitioner had clearlydemonstrated

that portions of the IEP were not implemented

at all. See id. at 347-48 (emphasis added).

The same can be said hereSSi.e., the significant

provisions of Caius’s IEP were followed, and,

as a result, he received an educational benefit.2

The approach taken in Gillette seems

reasonable, particularly in light of Rowley’s

flexible approach. Therefore, we conclude

that to prevail on a claim under the IDEA, a

partychallenging the implementation ofanIEP

must show more than a de minimis failure to

implement all elements of that IEP, and,

 

2 While consideration of any educational benefit

received might arguably seem to conflate the third

and fourth prongs of the Cypress-Fairbanks

inquiry, 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 analysis would be

whether the IEP services that were provided

actually conferred an educational benefit. 
8

instead, must demonstrate that the school

board or other authorities failed to implement

substantialorsignificant provisions ofthe IEP.

This approach affords local agencies some

flexibility in implementing IEP’s, but 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 grade to grade

were sufficient 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

student, as declining percentile scores do not

necessarily represent a lack of educational

benefit, but only a child’s inability to maintain

the same level of academic progress achieved

by his non-disabled peers. As with the

argument in Rowley 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.

Instead, the district court was correct to

focus on the fact that Caius’s test scores and

grade levelsinmath, writtenlanguage, passage

comprehension, calculation, applied problems,

dictation, writing, word identification, broad

reading, basis reading cluster and proofing

improved during his years in HISD.3 These

improvements are not trivial, and we cannot

say that the district court committed “clear

error” in its factual determination that 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 conclusion. 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 characterization of his

improvement in word attack, it is not

necessary for Caiusto improve in every area to

obtain an educational benefit from his IEP. 

Second, Caius submitted an affidavit from

Donna Weinberg, the owner 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 nothing about his

development or lack thereof, during his years

 

3 HISD employed the widely 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 the 1.7 grade level to 3.1; (2)

(continued...)

(...continued)

written language improved fromthe 1.5 grade level

to 1.9; (3) passage comprehensionwentfrom1.7 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 identification rose

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

level of a seven-month kindergarten student to

grade level 1.8.

From 1995 to 1996, 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 reading 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 HISD, and, as a result, they do nothing to

establish that he did not receive an educational

benefit from the IEP.

Finally, Caius offered the affidavit of Jean

White, the owner and operator of Educere,

where Caius received private tutoring from

White in 1997. Again, like Weinberg’s

statements,White’s affidavit does not establish

that Caius received no educational benefit

from HISD. Instead, her affidavit would, at

best, support an argument that the IEP

developed for Caius did not maximize his

educational potential. But as Rowley held, the

IDEA does not require maximization of a

disabled student’s educational potential.

There is no genuine issue of material fact

about whether Caius received an educational

benefit from the IEP, as demonstrated by the

objective evidence of increased scores and

grade levels. And because there were no

material issues of fact presented under the

other three Cypress-Fairbanks 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 pendency of any proceedings

conducted pursuant to this section, . . . the

child shall remain in the then current

educational placement ofsuch child,” “parents

who unilaterallychange their child’s placement

during the pendency of review proceedings,

without the consent of state or local school

officials, do so at their own financial risk. If

the courts ultimately determine that the IEP

proposed by the school officials was

appropriate, the parents would be barred from

obtaining reimbursementfor any interim period

in which 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 transfer to private school, the district

court’s dismissal was appropriate.

IV.

In sum, we find that the IEP wasreasonably

calculated to provide Caius a meaningful

educational benefit, in accordance 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 transfer to private

school during the pendency of this appeal.

Therefore, the district court was correct in

reversing the decision of the hearing officer, in

holding that Caius was not denied a “free

appropriate public education,” and in denying

Caius’s claims for reimbursement.

AFFIRMED.