REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-20221

CYPRESS-FAIRBANKS INDEPENDENT

SCHOOL DISTRICT,

Plaintiff-Appellee

versus

MICHAEL F. b/n/f/ MR. AND

MRS. BARRY F.,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

July 15, 1997

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Defendants-Appellants Michael F., by hi s next friend and

parents, Mr. and Mrs. Barry F., (“Michael’s parents”) appeal from

the final judgment of the district court in favor of PlaintiffAppellee Cypress-Fairbanks Independent School District (“Cy-Fair

ISD”). The action arose when Michael’s parents, invoking the20 U.S.C. § 1400 et seq . (1997). We note that the IDEA was

recently amended by Congress. See Individuals with Disabilities

Education Act Amendments of 1997, P.L. No. 105-17, June 4, 1997, 11

Stat. 37. As all of the events giving rise to this action occurred

before the enactment of the amendments, however, we need not

consider their effect in this appeal.

2 Individuals with Disabilities Education Act (“IDEA”), 1 sought

reimbursement from Cy-Fair ISD for the costs they incurred in

placing their disabled child, Michael, in a full-time private

residential education and treatment facility. The school district

refused Michael’s parents’ request, and they appealed

administra t ively to the Texas Education Agency (“TEA”), whose

hearing officer ordered reimbursemen t, finding that (1) the

educational program crafted for Michael by Cy-F air ISD was

inappropriate under the IDEA, and (2) Michael’s placement at a

specialized private residential school by his parents was

appropriate. After conducting further fact finding, the district

court r eversed the hearing officer’s decision and also awarded

costs to the school district. Concluding on the basis of the

entire administrative and judicial record that the district court

committed no reversible error when it reversed the hearing

off icer’s decision, we affirm the court’s decision on

reimbursement, but modify in part its award of costs to the school

district and affirm that award as modified.

I

BACKGROUND20 U.S.C. §§ 1400(c) and 1412(1); Teague Indep. Sch. Dist. v.

Todd L. , 999 F.2d 127, 128-29 (5th Cir. 1993).

Id. ; 20 U.S.C. § 1412(5).

20 U.S.C. § 1401(20).

3 A. Statutory Framework of the IDEA

Being a local educational agency responsible for complying

with the IDEA as a condition of the State of Texas’ receipt of

fed eral education funding, Cy-Fair ISD must (1) provide each

disabled child within its jurisdictional boun daries with a “free

appropriate public educ ation” tailored to his unique needs, 2 and

(2) assure that such education is offered, to the greatest extent

possible, in the educational “mainstream,” that is, side by side

with non-disabled chi ldren, in the least restrictive environment

con sistent with the disabled student’s needs. 3 The “free

appropriate public education” that a disabled student is entitled

to receive under the IDEA must be tailored to his particular needs

by means of an “individual educational program” (“IEP”), a written

statement prepared at a meeting attended by a qualified

representative of the school district, a teacher, the child’s

parents or guardians, and, when appropriate, the child hims elf. 4

In Texas, the persons charged with preparing an IEP are known

collectively as an Admissions, Review and Dismissal Committee (“ARD

Committee”).

The “free appropriate public education” tailored by an ARD

Committee and described in an IEP, however, need not be the bestBd. of Educ. of the Hendrick Hudson Central Sch. Dist.,

Westchester County v. Rowley , 458 U.S. 176, 188-89 (1982).

Id. at 201.

Oberti v. Board of Educ. of Borough of Clementon Sch. Dist.

, 995 F.2d 1204, 1213 (3rd Cir. 1993).

Board of Educ. of East Windsor Regional Sch. Dist. v.

Diamond , 808 F.2d 987, 991 (3rd Cir. 1986).

Polk v. Central Susquehannna Inter. Unit 16

, 853 F.2d 171,

182 (3rd Cir. 1988), cert. denied , 488 U.S. 1030 (1989); see also

Rowley , 458 U.S. at 192.

4 possible one, nor one that will maximize the child’s educational

potential; rather, it need onl y be an education that is

specifically designed to meet the child’s unique needs, supported

by services that will permit him “to be nefit” from the

instruction. 5 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

indivi dually designed to provide educational benefit.” 6

Nevertheless, the educational benefit to which the Act refers and

to whic h an IEP must be geared cannot be a mere modicum or d e

minimis ; 7 rather, an IEP must be “likely to produce progress, not

regression or trivial educational advancement.” 8 In short, the

educational benefit that an IEP is designed to achieve must be

“meaningful.” 9

When a parent or guardian challenges the appropriateness of an

IEP crafted by a state or local education agency and the resulting

educ ational placement, a reviewing court’s inquiry is generallyId. at 201.

Jenkins v. Squillacote

, 935 F.2d 303 305 (D.C. Cir. 1991)

(citing School Comm. of Town Burlington, Mass. v. Dep’t of Educ. of

Mass. , 471 U.S. 359, 369 (1985)); Alamo Heights Indep. Sch. Dist.

v. State Bd. of Educ. , 790 F.2d 1153, 1158 (5th Cir. 1986).

471 U.S. 359, 369 (1985).

5 twofold. It must ask first whether the state or local agency

complied with the procedu res set forth in the Act, and if so

whether “the individualized educational program developed through

the Act’s procedures [was] reasonably calculated to enable the

child to receive educational benefits?” 10 In those instances when

a suitable or “appropriate” public educational placement is not

available for a disabled child within a state or local school

district, the district must pay the costs of sending the child to

an appropriate private institution. 11

In School Comm. of Town of Burlington, Mass. v. Department of

Educ. of Mass.

, 12 the Supreme Court held that a reviewing court may,

in the exercise of the equitable authority granted to it under the

IDEA, order public school authorities to reimburse parents or

g uardians of a disabled child for their expenditures on private

schooling when they unilaterally remove the child from public

education and place the child in private schooling. But

reimbursement may be ordered in such situations only if the parents

or guardians establish that (1) an IEP calling for placement in a

public school was inappropriate under the IDEA, and (2) the privateId. at 370; s ee also Florence County Sch. Dist. Four v.

Carter

, 114 S.Ct. 361, 366 (1993). Reimbursement will be permitted

under Burlington when unilateral placement by parents is generally

found to be appropriate, even though it is not “the exact proper

placement required under the Act.” A lamo Heights

, 790 F.2d at

1161.

Teague , 999 F.2d at 132.

6 school placement by the parents was proper under the Act. 13 If the

reviewing court determines that the school district’s IEP was

appropriate, it need not reach the issue of the appropriateness of

the private placement by the parents. 14

B. Particular Facts and Proceedings

At an early age, Michael F. was diagnosed with, and began to

receive medication for, Attention Deficit Hyperactivity Disorder

(“ADHA”). Based on this condition, Michael was classified as

“other health impaired” and was thus entitled to receive

educational services under the IDEA from Cy-Fair ISD after he and

his family moved there in the summer of 1992.

Michael enrolled as a sixth grader at Cy-Fair ISD’s Hamilton

Intermediate School (Hamilton) for the 1992-93 school year. During

this school year, Michael was diagnosed with Tourette’s Syndrome

(“Tourette’s”), a neurological or psychiatric behavior disorder

typified by involuntary motor and vocal ticks. Michael’s case of

Tourette’s is manifested by symptoms of (1) hyperactivity and

decreased attention, (2) obsessive compulsive behavior, (3) rapid

mood swings, and (4) ticks and twitches.

Acting through an ARD Committee convened in August 1992, Cy-7

Fair ISD instituted a provisional IEP for Michael’s 1992-1993

school year at Hamilton. Under this initial IEP, Michael attended

regular classes and had access to a “content mastery class.” In

October of 1992, the ARD Committee supplemented Michael’s IEP with

a “behavioral plan,” under which Mich ael’s teachers could

discipline him wi th “time-out” and “cooling off” periods when he

became agitated, send him to counseling sessions with the assistant

principal, or send him to special dis cipline management classes.

Michael’s parents approved both the in itial IEP and the October

behavioral plan.

Michael’s deportment problems ebbed and flowed throughout the

1992-93 school year. During the fall semester, his misbehavior

consisted mainly of relatively minor disruptions such a s yelling

inappropriately on the bus and in class, calling other students and

himself gay, touching students on the legs in a sexual way, talking

back to his teacher, lic king his books and papers in class, one

scuffle, and one fight. This behavior landed Michael in the

principal’s office, detention hall, or discipline management class

on numerous occasions and a lso resulted in several temporary

suspensions from the school bus.

Beginning in January of 1993, however, when Michael was first

diagnosed with Tourette’s and his medications wer e juggled in an

attempt to reduce the severity of his Tourette’s’ symptoms, his

behavior worsened. Not only did he continue to disrupt class and

cause trouble elsewhe re in the school environment, but MichaelAn adaptive behavior class is specifically designed to help

students learn to control inappropriate behavior . The student

stays in the same classroom for several subjects, and a level point

structure is used which enables students to gain rewards throughout

the class period by exhibiting appropriate behavior.

8 increasingly became involved in fights, and on February 15 and 17

—— just when a powerful and potentially beneficial drug with strong

side effects was being introduced into Michael’s medication regimen

—— his temper flared in two physically violent episodes. As a

result of these episodes, Michael was removed from school on an

emergency basis and faced possible expulsion until the ARD

Committee determined, after receiving reports from Michael’s

attending psychiatrist and psychologist, that Michael’s misbehavior

was directly related to his disabilit y. Agreeing with the

recommendation of Michael’s psychiatrist, the ARD Committee

assigned Michael to a homebound placement for approximately six

weeks so that his doctors could complete medication trials and

stabilize his medical treatment, after which the Commit tee could

reevaluate Michael’s IEP.

Just before Michael’s outburst of physically violent behavior

in mid-February, however, the ARD Committee had resolved that

Michael’s needs would be better addressed with a more consistent

behavioral structure throughout the day. It had, therefore, placed

him i n a self-contained, adaptive behavior classroom for three

subjects (English/Language Arts, Math, and Social Studies), 15 while

leaving him in regular education classes for Science and Physical9

Education (“P.E.”) The ARD Committee also supplemented Michael’s

program by providing him with a social behavior curriculum in his

adaptive behavior classes, psychological counseling services, and

a discipline contingency plan.

When Michael returned to Hamilton on April 2, he was again

placed in a slightly expanded version of the adaptive behavior

program that he had only briefly begun in mid-February. Michael’s

disruptive and aggressive behavior continued more or less unabated

for the remainder of the school year, resulting in several short

suspensions, including one for the last two days of school after he

announced in class that he was going to kill his mother, spat in a

student’s face, hit the student, and directed obscene language at

his teacher.

When the ARD Committee convened on May 26, 1993 to review

Michael’s situation and plan for the next school year, it learned

that Michael was passing all of his courses and had made progress

towards achieving all of the academic goals listed in his IEP, but

had not yet achieved mastery in any academic area except for

general science. On the deportment front, Michael’s adaptive

behavior teacher noted that Mi chael was able to refocus after

incidents of misconduct. Largely at the insistence of his parents

who feared that his continued exposure, in ad aptive behavior

classes, to other children with emotional and behavioral problems

would harm Michael, the ARD Committee determined that Michael could

be placed in the regular education program at his local junior high10

school for the 1993-94 school year. Michael’s parents and the ARD

Committee hoped that the combined effect of a new school, the

intervening summer recess, and attention to medication would

improve Michael’s behavior. Michael’s IEP for the impending school

year, however, still included a number of support services and

plans specifically designed to address Michael’s behavioral

problems. Among these were a discipline contingency plan for

teachers to use in dealing with Michael’s conduct, a behavioral

intervention plan, psychological counseling services, a tracking

teacher to monitor Michael’s progress, and a handpicked team of

teachers who were to receive training on how to cope with Michael’s

disabilities and behavior. At the conclusion of the meeting,

Michael’s parents si g ned the Committee’s report, noting their

agreement with the IEP and Michae l’s placement for the 1993-1994

school year.

Over the summer, Michael’s behavior at home de teriorated to

the point that in late July his parents considered following his

psychologist’s advice and hospitalizing him or placing him in a

summer program at a residential treatment center. But Michael’s

parents ultimately chose to k eep him at home for the duration of

the summer.

In August 1993, Michael began seventh grade at Cy-Fair ISD’s

Bleyl Junior High School (“Bleyl”). During his first month of

sch ool, he continued to disrupt class with some frequency,

exhibited disrespect for and even directed insults at authority on11

occasion, and several times became enta ngled in fights. His

misbehavior resulted primarily in “time-outs,” detention hall

assignments and “cooling off” sessions at the assistant principal’s

office, but on three occasions he was sent home from school for the

rest of the day.

In light of these continuing behavioral problems, the ARD

Committee convened a meeting on October 4, 1993, which was attended

by Michael’s parents, th e chairman of the Special Education

Department at B leyl, a psychologist from the school district who

had worked with Michael, an educational dia gnostician from the

school district, the assistant principal at Bleyl responsible for

Michael, and Michael’s tracking tea cher. The Committee was

informed that, although Michael was passing every cours e but one

a nd was receiving satisfactory conduct marks in every class but

two, he was having difficulty turning in homework assignments in

the majority of his courses and was still experiencing behavioral

problems. The Committee therefore altered Michael’s IEP, placing

him in adaptive behavior classes for Math, English/Language Arts,

and Texas History and leaving him in regular education classes for

Science, Reading, Industrial Technology, Speech, and P.E. The

Committee also determined that Michael was eligible for an optional

content mastery class and modified his discipline contingency plan

by providing teachers with the option of sending Michael to a

discipline management class for the remainder of a class period, as

opposed to an emergency removal from class, whe n his misbehavior12

escalated . Once again, Michael’s parents approved the IEP that

resulted from this meeting.

On the very next day of s chool, however, before he had even

begun the new adaptive behavior program designed by the ARD

Committee, Michael got in a fight with a girl in class and, before

the fight was broken up, had pinned the girl to the floor with his

k nee and pulled out some of her hair. As a result of this

incident, Michael was “emergency removed” for the remainder of that

school day and the next day. Michael’s parents perceived this

incident as a serious escalation of Michael’s behavioral problems

and therefore renewed their previous consideration of alternative

placements for Michael, including a residential psychiatric

institution.

On October 7, 1993, Michael began his partial placement in

adaptive behavior classes. He continued to misbehave on the school

bus, disrupt classes on occasion, and in a few instances refuse to

suit up for P.E., all of which necessitated “time-outs” and

“cooling off” sessions with the assistant principal. Still, his

physical aggression from this date forward until his removal from

Bleyl consisted of but a single scuffle in P.E. Furthermore,

during the remainder of his time at Bleyl, he was only emergency

removed from school once, for half a day, after r efusing to take

medication and being disrespectful to a school nurse. On his own

volition, Michael later apologized to the nurse for his behavior.

Throughout this period, Michael ate lunch in the school cafeteriaProvo Canyon School is approved by the Utah State Board of

Education, the California State B oard of Education, the Wyoming

13 unattende d and passed through the school hallways without being

escorted by school staff.

Michael’s academic performance during his final month at Bleyl

was inconsistent but far from hopeless. A progress report issued

on October 26 for the first nine weeks of school indica ted that

Michael was failing or had incompletes in all but one subject.

Nevertheless, M ichael’s final report card from Bleyl, issued in

N ovember after he was removed by his parents, reflected that

Michael had turned in previously incom plete assignments and was

again passing in his three adaptive behavior classes (Math,

English/Language Arts, and Texas History) and in one other academic

course (Industrial Technology), was close to passing in two others

( Reading and Science), and was only clearly failing in one

(Speech). As discussed more fully below, Michael’s teachers and

the assistant principal have offered sensitive and detailed

assessments of his academic and behavioral performances during his

enrollment of approximately two months at Bleyl.

Michael’s parents remo ved him from Bleyl and Cy-Fair ISD on

Novem ber 4, 1993. On November 8, he was admitted to the Provo

Canyon School (“Provo Canyon”), a 24-hour residential treatment

center located in Provo, Utah. Michael remained at Provo Canyon

until February 11, 1994, when his parents brought Michael back home

because they could no longer afford the private institution. 16Sta te Board of Education, and the Joint Commission for

Accreditation of Hospitals.

See 20 U.S.C. § 1415(b)(2).

14 Meanwhile, on November 18, 1993, an ARD Committee meeting had

been convened to consider Michael’s parents’ request that Cy-Fair

ISD approve Michael’s placement at Provo Canyon and reimburse them

for the costs of the placement. The ARD Committee modified

Michael’s IEP slightly, in absentia, by deleting Speech class from

his curriculum an d substituting a “social behavior” class and by

deleting the requirement that he change clothes for P.E. But the

Committee did not accede to Michael’s parents’ request that the

school district approve Michael’s educational placement at Provo

Canyon and reimbur se them for the costs of this placement. The

Committee concluded that his partial placement in the adaptive

behavior classroom at Bleyl was the least restrictive environment

in which he could receive an appropriate public education under the

IDEA.

As was their right under the IDEA, 17 Michael’s parents sought

review of the school district’s denial of their request for

reimbursement in an impartial due process hearing before the TEA.

A TEA hearing officer conducted eleven days of hearings in April

1993 and, in a lengthy opinion issued on June 17, 1994, found that

(1) the IEPs developed by Cy-F air ISD for Michael’s 1993-1994

school year were inappropriate, (2) Michael’s placement at Provo

Canyon was appropriate, and (3) Michael’s parents were thereforeSee 20 U.S.C. § 1415(e)(2).

931 F.Supp. 474 (S.D. Tex. 1995).

Id. at 482-84.

15 entitled to reimbursement from Cy-Fair ISD for the $15,978.20 costs

of the educational and re lated services (but not the medical

services) Michael received at Provo Canyon.

The school di strict in turn exercised its prerogative under

the IDEA and appealed this decision to the United States District

Court for the Southern District of Texas. 18 After a one day hearing

in which it rec eived additional evidence, the district court

reversed the hearing officer’s decision, 19 and, in a separate order,

awarded $6,770. 05 in costs to the school district as a matter of

course under Rule 54(d)(1). 20 Michael’s parents have timely

appealed from the district court’s final judgment and its order

awarding costs.

II

ANALYSIS

A. Standard of Review

When a federal distri ct court reviews a state hearing

officer’s decision in an im partial due process hearing under the

IDE A, the court must receive the record of the administrative

proceedings and is then required to take additional evidence at the20 U.S.C. § 1415(e)(2).

Rowley , 458 U.S. at 206.

20 U.S.C. § 1415(e)(2); Teague , 999 F.2d at 131.

Id.

Id. ; Christopher M. v. Corpus Christi Indep. Sch. Dist.

, 933

F.2d 1285, 1289 (5t h Cir. 1991)); s ee also Salley v. St. Tammany

Parish School Bd. , 57 F.3d 458, 462 (5th Cir. 1995).

Teague , 999 F.2d at 131; Christopher M. , 933 F.2d at 1289.

16 request of any party. 2 1 Although the district court must accord

“due weight” to the hearing officer’s findings, 2 2 the court must

ultimately reach an independent decision based on a preponderance

of the evidence. 23 Accordingly, the district court’s “review” of

a hearing officer’s decision is “virtually de novo .” 24 Indeed,

given its adducing of new evidence, even evidence of matters that

have occurred since the administrative hearing under review, the

d istrict court proceeding under the IDEA is a hybrid, akin to a

“trial de novo.”

We, in turn, review d e novo

, as a mixed question of law and

fact, a district court’s decision t hat a local school district’s

IEP was or was not appropriate and that an alternative placement

was or was not inappropriate under the IDEA. 25 The district court’s

find ings of underlying fact, such as findings that a disabled

student obt ained educational benefits under an IEP, are reviewed

for clear error. 26 Finally, we note that in this circuit a party

attacking the appropriateness of an IEP established by a localId. at 1291; Alamo Heights

, 790 F.2d at 1158 (citing Tatro v.

Texas , 703 F.2d 823, 830 (5th Cir. 1983), aff’d in part and rev’d

in part , 468 U.S. 883 (1984)).

17 educational agency bears the burden of showing why the IEP and the

resulting placement were inappropriate under the IDEA. 27

B. The Appropriateness of the IEP’s

As it is undisputed that Cy-Fair ISD complied with the

procedural requirements of the IDEA in drafti ng and implementing

Michael’s IEP’s, Michael’s parents may only recover the costs they

i ncurred in unilaterally placing Michael at Provo Canyon if they

establish that (1) the IEPs in effect at the time that Michael was

removed from Cy-Fair ISD and was in residence at Provo Canyon ——

namely the October 4, 1993 and November 18, 1993 IEPs —— were not

reasonably calculated to provide Michael with a meaningful

educational benefit, and (2) the parents’ placement of Michael at

Provo Canyon was appropriate under the IDEA.

1. The TEA Hearing

In his carefully written decision, the TEA hear ing officer

articulated three primary reasons why the IEP in effect at the time

Michael was removed from Cy-Fair ISD (the October 4, 1993 IEP) was

not reasonably calculated to enable Michael to receive educational

benefits. First, despite his recognition that the earlier IEPs

developed by Cy-Fair ISD for Michael’s 1992-93 school y ear

represented appropriate interim steps designed to benefit Michael

based on the facts and information available at that time, theS ee Daniel R.R. v. State Board of Educ.

, 874 F.2d 1036, 1049

(5th Cir. 1989) (quoting 34 C.F.R. § 300.552 Comment).

18 hearing officer found that these IEP’s had not proven successful in

managing Michael’s behavior. Consequently, because the October 4,

1993 IEP re plicated the primary tools of the previous year’s

inadequate programs (namely , the adaptive behavior classes and

behavior management and discipline contingency plans), the October

4, 1993 plan was inappropriate. The hearing officer supported this

initial finding by (1) characterizing Michael’s behavior during his

time at Bleyl, both before and after the implementation of the

October 4, 1993 IEP, as “extreme, outrageous, and dangerous,” and

(2) noting that his behavior included examples of oral and physical

abuse of his teachers, school administrators, and other students.

Second, the hearing officer found that the absence of a meaningful

educational benefit was further exemplified by Michael’s generally

low self-esteem and by the fact that his October 26, 1993 progress

report reflected that he was either failing or receiving

incompletes in all of his subjects. Finally, the hearing officer

determined that (1) Michael’s presence in regular classrooms was so

disruptive that it impaired the education of other students, thus

indicating that his needs could not be met in the regular education

environ ment, 2 8 and (2) his behavior did not improve when he was

placed in the adaptive behavior classes but continued to occur with

the same frequency and level of severity in both his regular

classes and his adaptive behavior classes. Taking all this intoCy-Fair ISD notes that Dr. Salisbury’s four f actors are

derived from and track the federal regulations which implement the

IDEA. See 34 C.F.R. §§ 300.346(a) and 300.531-2 (assessment); 34

C.F.R. §§ 300,500 (least restrictive en vironment); 34 C.F.R. §

300.343-345 (team approach); and 34 C.F.R. § 346(a)( 5 )

(demonstrated outcomes).

19 consideration, the hearing officer concluded that the only way

Michael could learn to control his im pulsive and aggressive

behavior and therefore gain an educational benefit without

significantly disrupting others was if he were placed in a highly

structured, 24-hour residential treatment facility.

2. The District Court Proceeding

The district court did not attempt to refute or discredit each

of the hearing officer’s findings in support of his conclusion that

the school district’s educational program for Michael was

inappropriate. Instead, following the expert opinion of Christine

Salisbury, Ph.D., an educator with considerable experience in the

development o f educational programs for disabled children, the

court posited that there are four factors that can serve as

indicators of whether an IEP is reasonably calculated to provide a

meaningful educational benefit under the IDEA. 29 These are: (1) the

program is individualized on the basis of the student’s assessment

and performance; (2) th e 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.

As there is l ittle doubt that Michael’s October 1993 IEP (a) was20

designed with his s pecific behavioral and academic problems in

m ind, (b) placed him in educational settings with non-disabled

students for at lea st half of every school day, and (c) involved

both Michael’s individual teachers and Cy-Fair ISD administrators

and counselors familiar with his needs in a highly coordinated and

collaborate effort, the court had no difficulty concluding —— and

neither do we —— that the first three hallmarks of an appropriate

IEP were present.

As for the fourth factor

—— demonstra ble academic and nonacademic benefits

—— the district court concluded that Mi chael’s

passing grades at the time he left Bleyl to attend Provo Canyon and

his ability to attend lunch and pass through the halls between

class unaccompanied by school staff constituted significant

academic and non-academic benefits achieved by the IEP. We agree

that these objective indicia of educational benefit identified by

the district court are significant, and we find further support for

the district cour t’s conclusion that the October 1993 IEP was

reasonably calculated to, and in fact did, produce more than a

modicum of educational benefit for Michael in the opinion of those

individuals who had the most immediate knowledge of his performance

during his enrollment at Bleyl

—— the teachers who worked with him

on a daily basis, the assistant principal who was primarily

responsible for administeri ng Michael’s discipline plan, and the

school psychologist who counseled Michael during this period.21

3. Additional Evidence of Educational Benefit

Although we cannot recount in detail all of observations of

these individuals whose professionalism and concern for Michael was

clearly evident in their lengthy testimony before the hearing

officer, the following h ighlights of that testimony are

particularly illuminating. First, Laurie Fowlkes, Michael’s

S cience teacher, testified that Michael was generally “on task,”

demonstrated enthusiasm by volunteering for assignments, often

controlled his own behavior when he began to get agitated during

lab work by asking for permission to sit down and then putting his

head on his desk, and would likely have e arned a grade of B or a

high C in her class if he had not left Bleyl. Second, Franklin

Finch, Michael’s Industrial Technology teacher, testified that

Michael worked well in small groups, was “on task” 99.9 percent of

the time, never demonstrated inappropriate behavior except on his

las t day in class, and was, in Finch’s opinion, trying to keep

behavioral problems in check and seeking reassurance in these

efforts. Third, Leona W. Henry, Michael’s Reading teacher,

observed Michael’s behavior to be typical of adolescent boys in her

class, noted that on the few occasions that warnings or time-outs

were required Michael subsequently settled down, and stated that

she fully expected that Michael would have passed had he remained

in her class.

Perhaps the most important of all Michael’s teachers at Bleyl22

was Michael Donnelly, an experienced member of the school’s Special

Education department who served as Michael’s “tracking teacher” in

August and September and taught Michael’s adaptive behavior classes

in October a nd early November. Donnelly testified that, during

Michael’s stay in his adaptive behavior cla ssroom, Michael’s

ability to respond to Donnelly as a teacher and carry on a mature

conversation improved. Donnelly further observed that Michael

increasingly controlled his urges to interrupt class with

inappropriate comments and behavior. Donnelly also noted that, at

the time Michael’s parents removed him from Bleyl, he was earning

passing grades in all three academic subjects taken in the adaptive

behavior classes (Math, Language Arts, and Texas History). Based

on all of this, Donnelly believed that the adaptive behavior

classes constituted an appropriate placement for Michael because he

appeared to be “buying into the system”; Donnelly and Michael had

established a “good rapport”; and neither Donnelly nor anyone else

at Bleyl felt endangered by Michael’s presence.

Equally impressive in his faith in Michael’s gradual but

steady progress under the school district’s IEP was Robert Fowler,

the assistant principal at Bleyl who was primarily responsible for

administering Michael’s behavior management and discipline

contingency p lans and whose office Michael visited on numerous

occasions. Fowler first pointed out that the frequency of the need

for severe disciplinary responses to Michael’s behavioral problems

(i.e., emergency removal) dropped dramatically after Michael’s23

placement in the adaptive behavior classes under the October IEP.

Fowler also reported that he (1) enjoyed “a very good rapport” with

Michael, (2) saw a decrease in physically aggressive and otherwise

disruptive behavior after Michael was placed in the adaptive

behavior classes, (3) was aware of many instances in which the

discipline contin gency plan worked as intended, that is, Michael

successfully returned to work after an in-class “time-out,” a

s ession in his office, or a discipline management class, (4)

observed some very enco u raging instances of Michael’s putting

himself into “time-out” or taking himself to the assistant

principal’s office and subsequently regaining his composure, (5)

rated Michael ’s misbehavior as no more severe than other regular

education students h e saw frequently in his office, (6) found

Michael’s resistance to “dressing-out” for gym class to be typical

of young st udents confronted with this requirement for the first

time, which resistance was remedied under the November 18 IEP, and

finally (7) did not believe that Michael posed a danger to students

or staff at Bleyl.

Kenneth Greer, Ph.D., a psychologist with Cy-Fair ISD who was

knowledgeable about Tourette’ s and had worked with approximately

twenty Tourette’s-afflicted students in the school district,

authored a detailed report about Michael and testified about

Michael’s experience in the school district, based on Greer’s

direct observation of Michael in counse ling sessions and other

data. In general, Greer reported that (1) the adaptive behavior24

classes at Bleyl had lessened the frequ ency and intensity of

Michael’s misbehavior, in consequence of which his d isciplinary

referrals had decreased, (2) Michael’s initial placement in regular

classes at Bleyl was made largely at the request of his parents,

(3) Michael was much more cooperative in counseling sessions from

the very beginning of his placement at Bleyl, (4) despite his

impulse control problems, Michael never posed a threat to others or

a danger to the school, and (5) in Greer’s view, Michael appeared

to trust Mr. Fowler, the assistant principal, as someone with whom

he could converse and who provided a safe harbor for him in the

school environment.

Finally, we would be remiss if we failed to note the thorough

testimony at the district court hearing of Bernard Rosenberg, M.D.,

Michael’s attending psychiatrist in early 1993. A board certified

psychiatrist with extensive clinical experience treating children

with Tourette’s, Rosenberg testified that a placement in adaptive

behavior classes for part of the school day is generally the most

appropria te one for a student with Tourette’s, and, in Michael’s

case, was particularly appropriate given the averag e severity of

his symptoms and his relative success in his other classes at

Bleyl. By contrast, a 24-hour residential psychiatric placement,

Rosenberg testified, would be inappropriate b ecause it would

deprive Michael of the opportunity to learn to get along with other

children and because, in Rosenberg’s view, Michael did not pose a

danger to himself or others.25

In sum, the testimony of all of these individuals who had

direct and frequent contact with Michael both in and outside the

school sett ing provides substantial support for the district

court’s determination that the October 4, 1993 IEP was reasonably

calculate d to, and in fact did, produce meaningful educational

benefits both aca demically and behaviorally. In addition, their

testimony supports the court’s rejec tion of the TEA hearing

officer’s assumption that the school district’s replication of some

of the educational tools briefly used during the 1992-93 school

year was inappropriate in the context of the 1993-94 academic year.

First, Michael’s participation in the adaptive behavior classes at

Hamilto n was limited to the last two months of his sixth grade

year. As Dr. Rosenberg explained, this period had followed a

series of trying and ultimately unsuccessful attempts to modulate

Michael’s m edications and a six-week homebound placement, events

that undoubtedly disrupted the progress and structure of Michael’s

schooling. Second, Michael’s placement in regular classes at the

beginning of the 1993-94 school year reflected a choice primarily

made by Michael’s parents. Third, and most importantly, Michael’s

experience at Bleyl, albeit too brief for a definitive assessment

of its success, was unique and clearly showed a pattern,

particularly once he was switched into the ad aptive behavior

classes, of increasingly more self-controlled behavior and

respectable, although not always consistent, academic success.

Given all this, the district court cannot be said to have erred inGiven the strong factual support for the district court’s

decision, we also find that the cases specifically cited to us by

Michael’s parents in support of their claim that the school

district’s placement was inappropriate and their placement at Provo

Canyon was appropriate are readily distinguishable. In C lyde K v.

Puyallup Sch. Dist., No. 3

, 35 F.3d 1396, 1401 (9th Cir. 1994), the

Ninth Circuit found that a fifteen-year old student with Tourette’s

and ADHA had been properly placed by a school district, against his

parents wishes, in a self-contained, off-campus facility, as

opposed to mainstream classes, in light of unrefuted evidence that

the student was extremely disruptive and d angerous to others and

his well documented failure to obtain any education benefits in the

mainstream placement. In S eattle School Dist., No. 1. v. B.S.

, 82

F.3d 1493, 1497 and 1500-01 (9th Cir. 1996), the Ninth Circuit

held, this time against a school district, that a resi dential

placement, rather than mainstreaming, was appropriate for a student

with various behavioral disorders who was not receiving any

academic or non-academic benefits in a regular classroom, was

severely disrupting class, had become so physically assaultive that

she had to be placed in restraints, and ultimately was expelled by

the school district . In C apistrano Unified Sch. Dist. v.

Wartenberg

, 59 F.3d 884, 886-87 (9th Cir. 1995), the Ninth Circuit

agreed with a district court and a hearing officer that a

mainstream placement lacking in consistency and structure was

inappropriate for a sixt een-year old boy who suffered severe

learning and beha vior disorders and whose IEP’s had produced

nothing but failing grades and discouragement for years. In short,

all three of these Ninth Circuit decisions were dictated by

26 finding that the IEPs developed by Cy-Fair ISD for Michael’s 1993-

94 school year were reasonably calculated to produce a meaningful

educational benefit for Michael.

As it is evident that the IEP’s developed for Michael’s

seventh grade year were specifically tailored to his in dividual

needs and placed him in the least restrictive educational

environment consistent with those needs, we conclude that the

district court committed no reversibl e error in determining that

these IEPs and Michael’s placement within the Cy-Fair ISD were

appropriate under the IDEA. 30 We therefore need not address thecircumstances substantially different than those before us.

Similarly, the district court decis ions in C hris D. v.

Montgomery County Bd. of Educ.

, 753 F.Supp. 922, 929 (M.D. Ala.

1990) (program for emotionally disturbed thirteen -year old boy

utterly failed to provide significant educational be nefit and in

fact may have been harming him), and M.R. v. Lincolnwood Board of

Educ., Dist. 74

, 843 F.Supp. 1236, 1238 (N.D. Ill. 1994), aff’d, 56

F.3d 67 (7th Cir. 1995) (mainstreaming not appropriate for

emotionally disturbed thirteen-year old boy whose deteriorating

behavior represented a regr ession in addition to disturbance of

others), finding that more structured placements w ere necessary,

were also based on distinguishable fact patterns. Much closer

factually to the case at bar were the district court decisions in

Hall v. Shawnee Mission School Dist.

, 856 F.Supp. 1521, 1528-29 (D.

Kan. 1994) (IEP calling for partial placement in adaptive behavior

class was reasonably calculated to produce educational benefit as

demonstrated by child’s academic achievement on par with his grade

level and gradually improving behavior, despite continuing behavior

problems at home), and Swift v. Rapides Parish Public School

System

, 812 F.S upp. 666 (W.D. La.), a ff’d

, 12 F.3d 209 (5th Cir.

1993) (same), and our decision in Teague

, 999 F.2d at 132

(educational benefit of IEP desig ned for seventeen-year old boy

with various behavior, learning and speech disorders evidenced by

testimony of student’s teacher and school psychologist, fact that

student advanced in terms of grade level, and student’s increasing

ability to focus on particular tasks).

Teague , 999 F.3d at 132.

Rule 54(d)(1) provides:

Except when express provision therefor is made either in

a statute of the United States or in these rules, costs

other than attorneys’ fees shall be allowed as of course

to the prevailing party unless th e court otherwise

27 issue whether Micha el’s parents’ placement of Michael at Provo

Canyon was appropriate. 31 Accordingly, we affirm the district

court’s reversal of the hearing officer’s ruling that Cy-Fair ISD

must reimburse Michael’s parents for the cost of sending Michael to

Provo Canyon.

C. Award of Costs

Relyi ng on Federal Rule of Civil Procedure 54(d)(1), 3 2 thedirects . . . .

Fed. R. Civ. P. 54(d)(1) (emphasis added).

Alberti v. Klevenhagen , 46 F.3d 1347, 1358 (5th Cir. 1995).

28 district court awarded $6,770.05 in costs to Cy-Fair ISD.

Michael’s parents have challenged this award on a number of

grounds. We generally review a decision of the district court to

award costs for abuse of discretion. 33 We review the court’s

discrete factual findings for clear error.

In the district court and here on appeal, Michae l’s parents

have principally argued that the district court’s substantial award

of costs is inequitable and violates the spirit if not the letter

of the IDEA, given the procedural posture of this case. Michael’s

parents emphasize that it was Cy-Fair ISD which filed suit in

district court to appeal the state hearing officer’s determination

in favor of the parents. Thus they contend that the district

court’s award of costs here, if approved, would have a chilling

e ffect on the willingness of parents to contest school district

decisions vitally affecting their children by putting such parents

at risk of being penalized with a substantial cost assessment even

when they have managed to prevail at the administrative hearing

level. Other parents will now have to think long and hard,

Michael’s parents urge, before using the administrative procedures

that Congress took great pains to make available to them under the

IDEA for the protection of their children’s interests.

We cannot disagree with the equitable aspects of Michael’sThe IDEA does specifically provide that a district court “may

award reasonable attorneys’ fees as part of the costs to the

parents or guardian of a child or youth with a disability who is

the prevailing party,” 20 U.S.C. § 1415(e)(4)(B) (emphasis added),

but it is silent about awarding costs other than attorneys’ fees to

either parents or a school district as a prevailing party. Even

though the doctrine of inclusio unius est exclusio allerius might

well support an argument against an award of attorneys’ fees under

the circumstances, the issue is not before us today, for the

district court did not include attorneys fees in its award of

costs.

29 parents arguments on this point. But, as Cy-Fair ISD has noted,

the IDEA does not prohibit an award of costs to a school district

as a prevailing party in district court even when the parents have

prevailed at the administrative level. 34 Consequently, the district

court could, without abusing its discretion, interpret this silence

as permission to impose costs “as of course” under Rule 54(d)(1).

In this case, however, our review of the award of costs is not

limited to the general propriety of the award because Michael’s

parents also objected to each item included in Cy-Fair ISD’s bill

of costs. When we review them, item by item, we find that three of

these objections clearly have merit, constituting error by the

district court in allowing the school district to recover some or

all of the costs of the items identified by these three objections.

First, Michael’s parents properly objected to the $137.80 cost

attributable to the school district’s use of a private process

server to serve both themand their attorney despite their

counsel’s having agreed to accept service on their behalf and not

having objected to the use of service by mail. As there wasSee Zdunek v. Washington Metro. Area Trans. Auth.

, 100 F.R.D.

689, 692 (D. D.C. 1983).

28 U.S.C. § 1821(c)(1) provides for the payment of travel

expenses of witnesses who travel by common carrier, but

specifically states that “a witness shall utilize a common carrier

at the most economical rate reasonably available.”

30 nothing exceptional about the parties or the nature of this case,

the district court should have denied these unnecess ary private

service costs. 35

Next, Michael’s parents properly objected to $1004.00 of the

$1,319.00 in witnes s fees and expenses attributable to Dr.

Salisbury’s round trip airfare. Having checked with the airline

Dr. Salisbury used, the parents noted that even the sev en-day

advance purchase price for a Pittsburgh to Houston round trip for

the date at issue was l ess than $385.00. The school district

provided no reasonable explanation why Dr. Salisbury’s plane ticket

could not have been purchased at least one week in advance,

parti cularly as there is no record evidence that the one-day

hearing in the district court was either scheduled or changed at

the last minute. 36 Thus, the witness fees and expenses recoverable

by Cy-Fair ISD should have been reduced by $619.00, being the

differenc e between Dr. Salisbury’s actual plane fare and the

maximum amount she would have h ad to pay for a seven-day advance

fare.

Finally, Michael’s parents objected to $3,657.55 in costs

incident to f our depositions purportedly taken by the schoolCopper Liquor, Inc. v. Adolph Coors Co.

, 684 F.2d 1087, 1099

(5th Cir. 1982) (A deposition is taxable as a cost so long as “the

taking of the deposition is shown to have been reasonably necessary

in light of the facts known to counsel at the time it was taken.”).

31 district in preparation for the district court hearing, which

expenditures the parents assert were not “reasonably necessary.” 37

The deponent in one of those depositions was of Michael’s parents’

expert, Gina Novellino, Ph.D., Michael’s p s ychologist who was

unavailable for live testimony and whose deposition was introduced

as an exhibit at trial. The cost of this deposition was not

erroneously tax ed to Michael’s parents. The other depositions,

however, were those of the school district’s own witnesses and were

not introduced at trial because of Michael’s parents’ objections.

As the school district had to have known in advance that these

witnesses would have to be called for live testimony in open court

at the distri ct court hearing, their depositions were surplusage

and cannot properly be taxable to Michael’s parents as “reasonably

necessary” under these circumstan ces. Accordingly, the school

district should not have been allowed to recover the $2,176.40 cost

of these three depositions.

In conclusion, we hold that the district court did not abuse

its discretion in general when it elected to tax costs to Michael’s

parents, but clearly erred in its findings of fact as to the proper

amounts for the three categor ies of costs discussed above, i.e.,

private process service, plane fare, and deposition expenses. We

therefore conclude that the award of costs to Cy-Fair ISD should be32

reduced by $2,933.20, to $3,837.40.

III

CONCLUSION

Having concluded that the district court did not err

reversibly in finding that the IEPs designed for Michael and CyFair ISD’s resulting placement of Michael in his local junior high

school were reasonably calculated to produce a meaningful

educational benefit and were therefore appropriate under the IDEA,

we affirm the district court’s reversal of the TE A hearing

officer’s ruling that the school district must reimburse Michael’s

parents for the costs of their unilateral placement of Michael in

a private full-time residential school. Furthermore, we modify the

dis trict court’s award of costs under Rule 54(d)(1) as discussed

above and affirm that award as modified.

JUDGMENT AFFIRMED; ORDER MODIFIED and, as modified, AFFIRMED.