United States Court of Appeals

for the Fifth Circuit

No. 20-20339

D.C., an individual with a disability; J.C., as parent/guardian/next friends 

of D.C., an individual with a disability; K.C., as parent/guardian/next friends 

of D.C., an individual with a disability, 

Plaintiffs—Appellees,

versus

Klein Independent School District, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-21

Before Haynes, Graves, and Willett, Circuit Judges.

Haynes, Circuit Judge:*

This case was brought on behalf of D.C., a minor with a specific 

learning disability in reading comprehension. Soon after D.C. started first 

grade in the Klein Independent School District (the “District”), his teachers 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 17, 2021

Lyle W. Cayce

Clerk

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2

realized that he struggled with reading comprehension and fluency. By the 

end of second grade, school officials recognized that D.C. was “in need of 

intensive intervention” due to his reading deficiencies. Although the District

provided D.C. with increasing accommodations, his grades and test scores 

continued to decline in some respects. Finally, in fifth grade, the District 

evaluated D.C. and determined that he was eligible to receive special 

education. Yet, when District officials met with D.C.’s parents to draft a 

special education program, they failed to provide D.C. with any specialized 

instruction in reading comprehension. Once the program was implemented, 

D.C. showed only marginal improvements in his reading ability and remained 

well below grade-level. 

Dissatisfied with the District’s program, D.C.’s parents sued the 

District on D.C.’s behalf under the Individuals with Disabilities Education 

Act (the “IDEA”), 20 U.S.C. §§ 1400–82. There are two key questions 

remaining in this lawsuit: (1) did the District unreasonably delay evaluating

D.C. for special education eligibility; and (2) did the District fail to provide 

D.C. with an adequate special education program? So far, a state hearing 

officer, a magistrate judge, and a district court have unanimously answered 

each question, “Yes.” We agree, and therefore AFFIRM. 

I. Background

A. The IDEA’s Statutory Structure

The IDEA provides that in exchange for “federal funds to assist in 

educating children with disabilities,” “a State pledges to comply with a 

number of statutory conditions.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. 

Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017). Chief among these conditions is 

the requirement to provide a free appropriate public education (“FAPE”) 

“to all children with disabilities residing in the State between the ages of 3 

and 21.” 20 U.S.C. § 1412(a)(1)(A). Under the IDEA, a FAPE “consists of 

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educational instruction specially designed to meet the unique needs of 

the . . . child, supported by such services as are necessary to permit the child 

‘to benefit’ from the instruction.” Bd. of Educ. of Hendrick Hudson Cent. Sch. 

Dist. v. Rowley, 458 U.S. 176, 188–89 (1982).

The IDEA provides a comprehensive scheme to ensure that every 

eligible child is provided a FAPE. This scheme begins with the “child find” 

mandate, which requires each state to “identif[y], locate[], and evaluate[]” 

each resident child with disabilities “who [is] in need of special education 

and related services.” 20 U.S.C. § 1412(a)(3)(A). Once an eligible child is 

identified, the IDEA requires preparation of an Individual Education Plan 

(“IEP”) “tailored to the unique needs of” the child. Rowley, 458 U.S. at 181. 

The “IEP must be drafted in compliance with a detailed set of procedures,” 

which “emphasize collaboration among parents and educators.” Endrew F., 

137 S. Ct. at 994 (citing 20 U.S.C. § 1414). Further, “[e]ach IEP must 

include an assessment of the child’s current educational performance, must 

articulate measurable educational goals, and must specify the nature of the 

special services that the school will provide.” Schaffer ex rel. Schaffer v. 

Weast, 546 U.S. 49, 53 (2005) (citing 20 U.S.C. § 1414(d)(1)(A)). 

Ultimately, “a school must offer an IEP reasonably calculated to enable a 

child to make progress appropriate in light of the child’s circumstances.” 

Endrew F., 137 S. Ct. at 999.

If the collaborative IEP-drafting process breaks down, the IDEA offers 

a detailed dispute-resolution process. See 20 U.S.C. § 1415. As relevant 

here, “the parents or the local educational agency involved” may request an 

“impartial due process hearing,” the exact procedures of which are 

determined by state law. Id. § 1415(f)(1)(A). At the conclusion of the state 

administrative process, any aggrieved party may seek relief in state or federal 

court. Id. § 1415(i)(2)(A). Additionally, a federal court may award attorneys’ 

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fees to the parents if they are the “prevailing party” in the litigation. Id.

§ 1415(i)(3)(B)(i)(I).

B. D.C.’s Experience in the District

During first through fourth grade, D.C. struggled with reading 

comprehension and fluency. The District recognized that D.C. was 

struggling, and attempted to address his issues through means other than 

special education.1

 When he was in third grade, his mother requested a 

special education evaluation from the school. After reviewing D.C.’s file, the 

District’s Referral Committee concluded that D.C. did not appear to be in 

need of special education. However, on March 22, 2016, the District’s 

Section 504 Student Review Committee convened and determined that D.C. 

had a disability under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 

§ 794, warranting a number of instructional accommodations. These 

accommodations included: not requiring D.C. to read aloud, providing extra 

time for assignments, permitting frequent breaks, and allowing oral 

administration of assignments and tests. 

On September 3, 2017, just before the start of D.C.’s fifth grade year, 

D.C.’s parents again requested a special education evaluation. On October 

19, 2017, the District’s Referral Committee met with D.C.’s mother and, 

with her consent, referred him for evaluation. The evaluation was completed 

on January 14, 2018, concluding that D.C. had a specific learning disability in 

reading comprehension.

The District’s Admission, Review, and Dismissal (“ARD”) 

Committee met with D.C.’s parents on February 7, 2018 to review the results 

1 Specifically, starting in first grade, the District placed D.C. in the “Language 

Literacy Intervention” program, which focused on reading comprehension and writing 

skills. 

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of the evaluation and to formulate an IEP. After three days of meetings 

(February 7, March 1, and March 9), the ARD Committee prepared an IEP 

for D.C.; D.C.’s parents signed the IEP and agreed to its immediate 

implementation. D.C.’s IEP recognized that he had a “Specific Learning 

Disability in the area of Reading Comprehension, Reading Fluency, Basic 

Reading Skill,” and, at the insistence of D.C.’s family, identified him as a 

“student with Dyslexia.” The IEP placed D.C. in general education for all 

of his classes, but offered two major special services: (1) 3.75 hours per week 

of co-teach reading instruction, and (2) dyslexia services.

C. The Due Process Hearing

D.C.’s parents filed a due process complaint with the Texas 

Education Agency on April 27, 2018. A hearing was held in August 2018, and 

the hearing officer issued his decision in November 2018. Based on his 

review of the evidence, the hearing officer determined that D.C. had a 

specific learning disability in reading comprehension and that his “reading 

comprehension deficit [was] the root of his issues with reading fluency and 

his primary area of need.” 

The hearing officer then concluded that the District had denied D.C. 

a FAPE by violating its child find duty and by failing to prepare an adequate 

IEP. With respect to child find, the hearing officer found that the District 

had reason to suspect D.C. was eligible for special education by April 27, 

2017, and had unreasonably delayed evaluating him until January 2018.2 

2 The hearing officer set April 27, 2017 as the trigger date rather than an earlier 

date because he determined that April 27, 2017 was the beginning of the relevant statute of 

limitations period. The district court accepted the hearing officer’s determination 

regarding the statute of limitations, and D.C. does not raise the issue on appeal. 

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With respect to the adequacy of the IEP, the hearing officer found 

that: (1) the IEP was not individualized because it did not provide D.C. with 

a specialized program to address his reading comprehension disability, 

instead providing D.C. with dyslexia services, even though there was 

insufficient evidence that D.C. was dyslexic; (2) the IEP did provide services 

in the least-restrictive environment; (3) the IEP did not provide services in a 

collaborative manner; and (4) the IEP did not provide D.C. with sufficient 

academic benefit as he made only minimal progress in reading. Accordingly, 

the hearing officer ruled that the District had not provided D.C. with a FAPE. 

Based on these findings, the hearing officer ordered the District to 

modify the IEP so as to provide D.C. with forty-five minutes per day of 

reading instruction using either Read 180, a research-based reading 

comprehension program, or a similar peer-reviewed program. The hearing 

officer also awarded D.C. 108 hours of compensatory education. 

D. District Court Proceedings

In January 2019, D.C.’s parents filed suit in federal district court, 

seeking attorneys’ fees and costs as the prevailing party in the state 

administrative proceedings. The District counterclaimed, asserting that 

D.C. was not a prevailing party because the hearing officer’s decision was 

erroneous. The District also sought reversal of the hearing officer’s award of 

compensatory education. 

D.C. and the District filed cross-motions for summary judgment.3

 

The magistrate judge reviewed these motions and recommended that the 

3 In IDEA cases, if “neither party request[s] the district court hear additional 

evidence, a summary judgment motion is the procedural vehicle for asking the judge to 

decide the case on the basis of the administrative record.” R.S. ex rel. Ruth B. v. Highland 

Park Indep. Sch. Dist., 951 F.3d 319, 327 n.6 (5th Cir. 2020) (per curiam) (internal quotation 

marks and citation omitted). 

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district court grant D.C.’s motion and deny the District’s. The District 

timely objected to the magistrate judge’s recommendations. 

Although the district court agreed with the District that the magistrate 

judge had applied an incorrect standard of review, it concluded that this error 

was not dispositive. Accordingly, the district court modified the magistrate 

judge’s report and recommendation to apply the correct standard of review, 

but otherwise adopted it in full. In its memorandum order, the district court 

agreed with the hearing officer’s conclusions regarding child find, found that 

D.C.’s IEP was inadequate because it was not appropriately individualized 

and did not provide a demonstrated meaningful benefit, and awarded D.C. 

attorneys’ fees. The District timely appealed. 

II. Standard of Review

Whether a school district complied with the child find mandate and

whether a school district provided a child with a FAPE are mixed questions 

of law and fact. Spring Branch Indep. Sch. Dist. v. O.W. ex rel. Hannah W., 961 

F.3d 781, 790 (5th Cir. 2020), cert. denied, 141 S. Ct. 1389 (2021) (mem.).

Accordingly, a district court’s legal conclusions are reviewed de novo, while 

its findings of fact are reviewed for clear error. Id. On clear error review, we

will reverse a district court’s findings only if we are “left with the definite 

and firm conviction that a mistake has been committed.” E.R. ex rel. E.R. v. 

Spring Branch Indep. Sch. Dist., 909 F.3d 754, 766 (5th Cir. 2018) (per curiam) 

(internal quotation marks and citation omitted). 

“[A] federal district court’s review of a state hearing officer’s [IDEA]

decision is virtually de novo.” Adam J. ex rel. Robert J. v. Keller Indep. Sch. 

Dist., 328 F.3d 804, 808 (5th Cir. 2003) (internal quotation marks and 

citation omitted). Under this standard, a district court should give “due 

weight” to a hearing officer’s findings, but “must arrive at an independent 

conclusion based on a preponderance of the evidence.” Id. (internal 

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quotation marks and citation omitted). However, a district court must afford 

“greater deference” to credibility determinations based on live testimony.4 

Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d 205, 218 (5th Cir. 2019)

(quotation omitted). 

III. Discussion

On appeal, the District challenges four aspects of the district court’s 

judgment: (1) the finding that the District violated the child find mandate; 

(2) the finding that D.C.’s IEP was inadequate; (3) the decision not to vacate

the hearing officer’s award of compensatory education; and (4) the 

conclusion that D.C. was an prevailing party eligible to receive attorneys’ 

fees. We address each issue in turn.5

4 As we undertake our review, we are mindful that the Supreme Court has 

repeatedly warned lower courts against mistaking the IDEA’s broad standards “for ‘an 

invitation . . . to substitute their own notions of sound educational policy for those of the 

school authorities which they review.’” Endrew F., 137 S. Ct. at 1001 (quoting Rowley, 458 

U.S. at 206).

5 In its reply brief, the District makes the overarching argument that the district 

court improperly placed the burden of persuasion on it rather than on D.C. But this 

argument does not appear in the District’s opening brief, which makes only vague 

assertions that the hearing officer improperly allocated the burden of persuasion at the 

administrative level. We detect no error in the hearing officer’s allocation of the burden of 

persuasion, and because the District did not raise the issue of the district court’s allegedly

improper allocation until its reply brief, the issue has been waived. See, e.g., United States 

v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005) (per curiam) (noting that arguments raised 

for the first time in a reply brief are waived). Moreover, the District’s reply brief neither 

cites any of our precedents specifying how the burden of persuasion is allocated at the 

district court level, nor explains what the appropriate remedy would be for the district 

court’s supposed burden-of-persuasion error, nor even cites to the allegedly erroneous 

portions of the district court’s memorandum order. Thus, even if we ignored the District’s 

failure to raise the issue in its opening brief, the argument would still be waived. See Innova 

Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 735 (5th 

Cir. 2018) (“To avoid waiver, a party must identify relevant legal standards and any 

relevant Fifth Circuit cases.” (quotation omitted)); United States v. Upton, 91 F.3d 677, 684 

n.10 (1996) (“[C]laims made without citation to authority or references to the record are 

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A. Child Find

We have held that the IDEA’s child find mandate has an implied 

“reasonable time” requirement, such that “a school district must identify, 

locate, and evaluate students with suspected disabilities within a reasonable 

time after the school district is on notice of facts or behavior likely to indicate 

a disability.” O.W., 961 F.3d at 791 (internal quotation marks and citation 

omitted). When considering whether a school district acted within a 

reasonable time, we “employ a case-by-case approach” and consider only 

“the information and resources possessed by the district at a given point in 

time.” Ridley Sch. Dist. v. M.R., 680 F.3d 260, 272 (3d Cir. 2012) (internal 

quotation marks and citation omitted); see also Lisa M., 924 F.3d at 214

(stressing that it is inappropriate to consider hindsight evidence when 

reviewing an IDEA eligibility determination). Ultimately, our evaluation of 

a school district’s compliance with the child find mandate “turns on three 

inquiries: (1) the date the child find requirement [was] triggered due to notice 

of a likely disability; (2) the date the child find duty was ultimately satisfied; 

and (3) the reasonableness of the delay between these two dates.” O.W., 961

F.3d at 793. 

The district court determined that: (1) the District’s child find duty 

was triggered by April 27, 2017; (2) the District satisfied its obligations on 

October 19, 2017, when D.C.’s mother consented to a disability evaluation; 

and (3) that the nearly six-month delay between these dates was 

unreasonable. On appeal, the District asserts that the district court erred in 

concluding that April 27, 2017 was the trigger date, and that even if April 27 

considered abandoned on appeal.”); Fed. R. App. P. 28(a)(8)(A) (requiring the 

appellant to provide “citations to the authorities and parts of the record on which the 

appellant relies”). 

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was the correct trigger date, its delay was reasonable. Neither assertion is

persuasive.

1. Trigger Date

A school district’s child find duty is triggered when the district “had 

reason to suspect [the child] had a qualifying disability.” Dall. Indep. Sch. 

Dist. v. Woody, 865 F.3d 303, 320 (5th Cir. 2017). Although there is no brightline rule, a school district generally has sufficient notice if it is aware of facts 

suggesting the child has a disability and that the child is struggling 

academically. Compare Krawietz ex rel. Parker v. Galveston Indep. Sch. Dist., 

900 F.3d 673, 677 (5th Cir. 2018) (concluding that a child’s “academic 

decline, hospitalization, and incidents of theft should have led [the school 

district] to suspect her need for special education services” (internal 

quotation marks omitted)), with D.K. v. Abington Sch. Dist., 696 F.3d 233, 

251 (3d Cir. 2012) (determining that the school district’s child find obligation 

was not triggered where the child’s adverse behaviors were consistent with 

his age group and he was achieving “intermittent progress and even academic 

success”), and Bd. of Educ. of Fayette Cnty. v. L.M., 478 F.3d 307, 314 (6th 

Cir. 2007) (determining that the school district did not violate the child find 

mandate where the child was “meeting expectations in all academic areas” 

despite displaying significant behavioral issues). 

As the district court noted, there was extensive evidence that the 

District was or should have been aware of D.C.’s disability by April 27, 2017, 

including: his fourth-grade Section 504 plan, which noted he had “secondary 

characteristics of dyslexia evident in reading comprehension and written 

expression”; his third-grade Section 504 plan, which stated that D.C. had a 

substantial impairment; and the fact that D.C.’s performance on assignments 

substantially improved with oral administration. By that point, the District 

also possessed substantial evidence that D.C.’s disability warranted special 

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education. In particular, despite the District’s provision of Section 504 

accommodations, D.C.’s reading level did not improve from the start of 

fourth grade through the middle of the year, he scored a mere forty percent 

during a February simulation for the State of Texas Assessments of 

Academic Readiness (“STAAR”) exam, and, most concerningly, he placed

in the second percentile on his winter reading Measure of Academic 

Proficiency (“MAP”) test, despite having placed in the forty-second 

percentile in the fall. Given the failure of the Section 504 accommodations 

to improve D.C.’s performance, by April 27, 2017, the District should have 

been aware that its existing strategy was insufficient to serve D.C.’s needs. 

Cf. L.M., 478 F.3d at 314 (concluding that the school district did not violate 

child find where interventions short of special education “were moderately 

successful”). Consequently, the district court did not err in its trigger date 

determination.

2. Reasonableness of the Delay

In O.W., we established “that the reasonableness of a delay is not 

defined by its length but by the steps taken by the district during the relevant 

period.” 961 F.3d at 793. Accordingly, we consider whether, “throughout 

the period between notice and referral, a district t[ook] proactive steps to 

comply with its child find duty.” Id. For example, in Woody, we held that a 

three-month delay was reasonable where the school district spent the 

intervening period “requesting and gathering information,” the child’s 

parent took over a month to respond to an information request, and the 

parent and the district mutually agreed to hold the referral meeting an 

additional month later. 865 F.3d at 320. By contrast, in O.W., we held that 

a three-month and seven-day delay was unreasonable where the school 

district chose to continue implementing Section 504 accommodations 

instead of pursuing a special education evaluation. 961 F.3d at 793–95; see 

also Krawietz, 900 F.3d at 677 (ruling that a four-month delay was 

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unreasonable where the district “failed to take any appreciable steps toward 

complying with its Child Find obligations”).

Here, the District concedes that it failed to take any steps towards 

evaluating D.C. between April 27 and the start of the new school year on 

September 6, 2017. Nevertheless, the District argues that these months 

should not count against it because this time period included the District’s 

summer vacation. On this point, the District cites a single case, J.G. v. 

Douglas County School District, 552 F.3d 786 (9th Cir. 2008), which adopted 

a sensible rule: “school districts [are allowed] a degree of leeway during 

summer vacation,” but are not permitted to delay complying with the child 

find mandate “solely because summer vacation makes a timely evaluation 

difficult.” Id. at 798. 

Thus, even if we apply the District’s preferred rule of law, its 

summertime delay was unreasonable: school districts on summer break need 

not move towards evaluation as expeditiously as they might during the school 

year, but they cannot get away with doing nothing, and here, the District did 

nothing.

6 Moreover, the District inexplicably ignores its delay during the

6 The District also contends that Texas regulations establish that only school days 

count when considering whether a school district complied with the child find mandate. 

Yet, the regulation the District cites, 19 Texas Administrative Code § 89.1011(c)(1), does 

no such thing. Rather, § 89.1011(c)(1) establishes that school districts have forty-five 

school days to evaluate a child following the receipt of parental consent (received here on 

October 19, 2017)—the regulation says nothing about how to measure time before the 

receipt of parental consent, which is the relevant issue in this case. We decline the 

District’s invitation to fail to apply the text as written and instead expand the scope of 

§ 89.1011(c) so as to negate pre-consent delays. See Tex. Dep’t of Crim. Justice v. Rangel, 

595 S.W. 3d 198, 210 (Tex. 2020) (explaining that courts “may not impose [their] own 

judicial meaning on a statute by adding words not contained in the statute’s language” 

(quotation omitted)); Ebert v. Poston, 266 U.S. 548, 554 (1926) (“A casus omissus does not 

justify judicial legislation.”). 

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month of May, when school was in session.7 Therefore, the District 

unreasonably delayed D.C.’s evaluation by at least four months. 

The district court further faulted the District for an unnecessary delay

between September 3, 2017, when D.C.’s parents requested a special 

education evaluation, and October 19, 2017, when the District obtained their 

consent to perform an evaluation. On this front, the evidence is more 

equivocal: on the one hand, the District used this time to gather and review 

its files on D.C. in preparation for the evaluation referral meeting; on the 

other hand, the District took thirty school days to offer D.C.’s parents an 

opportunity to consent to an evaluation after receiving their request, whereas 

Texas law allowed it only fifteen, 19 TEX. ADMIN. CODE § 89.1011(b)

(2017) (Tex. Educ. Agency, Full Individual and Initial Evaluation). But

regardless of how we evaluate the District’s actions in September and 

October, the district court’s ultimate conclusion remains sound given the 

unreasonableness of the District’s delay between May and September.8 See 

Krawietz, 900 F.3d at 677 (affirming the district court’s finding of a child find 

violation even on the assumption that the district court overstated the length 

of the school district’s delay by two months). Therefore, the district court 

did not err in determining that the District violated the child find mandate. 

7 The school year ended on June 1, 2017. 

8 Although the District does not rely on it, we note that on or before May 1, 2017, 

D.C.’s fourth-grade teacher implemented a new reading program for him. Yet, even if this 

action counts as a proactive step towards compliance in response to D.C.’s winter MAP 

score, the bottom-line result remains the same: when D.C.’s uniformly below-grade-level 

STAAR results were released in June, the District should have taken additional steps, but 

failed to do so. 

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B. IEP Adequacy

When reviewing an IEP, “the question is whether the IEP is 

reasonable, not whether the court regards it as ideal.” Endrew F., 137 S. Ct. 

at 999. To evaluate the reasonableness of an IEP, we rely on the four-factor 

inquiry set forth in Cypress-Fairbanks Independent School District v. Michael F. 

ex rel. Barry F., 118 F.3d 245 (5th Cir. 1997). E.R., 909 F.3d at 765 

(confirming that the Michael F. test was not displaced by the Supreme 

Court’s decision in Endrew F.). Under Michael F., we consider 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 nonacademic benefits are demonstrated.” 118 F.3d at 253. Ultimately, “a 

student’s 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.” A.A. v. Northside Indep. 

Sch. Dist., 951 F.3d 678, 691 (5th Cir. 2020) (internal quotation marks and 

citation omitted).

The district court determined that the District had collaborated with 

D.C.’s parents when developing the IEP, but that the March 2018 IEP was 

not individualized and failed to meaningfully benefit D.C. It also determined 

that the least-restrictive-environment Michael F. factor was not at issue here.

Accordingly, the district court concluded that the balance of the Michael F. 

factors indicated that D.C.’s IEP was inadequate. 

The District challenges the district court’s conclusions regarding the 

individualization and demonstrated benefits factors. As these conclusions 

were findings of fact, we review them for clear error. R.S. ex rel. Ruth B. v.

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Highland Park Indep. Sch. Dist., 951 F.3d 319, 328, 333 (5th Cir. 2020) (per 

curiam); Richardson Indep. Sch. Dist. v. Michael Z, 580 F.3d 286, 295 (5th Cir. 

2009). The District also asserts that the district court legally erred by underweighing the collaboration factor and disregarding the least-restrictiveenvironment factor. We review this challenge de novo. O.W., 961 F.3d at 

790. 

1. Individualization

An IEP is sufficiently individualized if it is “designed for [the child’s] 

unique needs.” E.R., 909 F.3d at 768. Hence, an IEP must provide services 

that address all of the child’s disabilities; significant services addressing one 

disability are not enough if another disability is left unaddressed. See Hous. 

Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 585 (5th Cir. 2009) 

(concluding that an IEP was not adequately individualized where it “was 

good for [the child]’s expressive language delay problems” but “was 

inappropriate to address her auditory-processing disorder”). 

D.C.’s IEP offered two main services to address D.C.’s disability: 

(1) co-teach reading services, and (2) dyslexia services. However, as the 

hearing officer and the district court found, there was insufficient evidence 

that D.C. had dyslexia, meaning that the dyslexia services offered by the 

District did not address D.C.’s needs. Therefore, this factor turns on 

whether the co-teach reading services were an “appropriately ambitious” 

intervention for D.C.’s reading comprehension disability. Endrew F., 137 S. 

Ct. at 1000.

The district court did not clearly err in concluding otherwise. Under 

the co-teach program, a “co-teacher” worked alongside D.C.’s general 

education teacher for forty-five minutes per day to “giv[e] [D.C.] all of th[e] 

supports so that he c[ould] successfully access the curriculum.” Therefore, 

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as the hearing officer found, the co-teach program served to “accommodate 

but not remediate [D.C.]’s reading comprehension issues.”

Perhaps, in some circumstances, mere accommodation is an 

acceptable goal because that is all that may be reasonably attained. See Klein 

Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 398 (5th Cir. 2012) (noting that 

“overall educational benefit, not solely disability remediation, is IDEA’s 

statutory goal”). But D.C. was capable of improvement: as the District’s 

own expert testified, the “ideal option” for D.C. would have been Read 180, 

a program designed to improve reading comprehension skills. Yet, even 

though the District had this program in its repertoire, it included neither 

Read 180 nor any similar program in D.C.’s IEP.9 

Finally, our decision in Hovem does not undermine the district court’s 

conclusion. In that case, the child had several disabilities relating to his 

writing skills. Id. at 392. Although the programs provided under his IEPs 

failed to fully remediate his writing deficiencies, Hovem held that his IEPs 

were “sufficiently individualized” because they provided him adequate 

accommodations to advance through the general education curriculum. Id.

at 398. But the child in Hovem was placed in remedial English and writing 

classes to address his specific writing disability, id. at 392–93, and his writing 

ability improved over time, id. at 398. Thus, the IEPs in Hovem did at least 

attempt to remediate the child’s writing deficiencies, and consequently, the 

9 It is unclear if D.C. continued in the Language Literacy Intervention program 

after his IEP was implemented; in any event, his IEP makes no mention of it. However, 

even if the program had been included in D.C.’s IEP, our conclusion would not change: 

D.C. had been enrolled in this program since first grade, and his reading level had plateaued 

in fourth grade. Given this plateau, the record suggests that D.C. had needs left 

unaddressed by the Language Literacy Intervention program. Therefore, an IEP that 

offered only this program would not have been “designed for [D.C.]’s unique needs.” 

E.R., 909 F.3d at 768. 

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case simply reflects the well-established rule that an IEP need only “aim to 

enable the child to make progress.” Endrew F., 137 S. Ct. at 999 (emphasis 

added).

By contrast, D.C.’s IEP did not provide any specific program to

address D.C.’s reading comprehension learning disability; unlike the IEP in 

Hovem, which at least aimed for improvement, D.C.’s IEP did not. 

2. Demonstrated Benefits

To demonstrate positive benefits under Michael F., an IEP must 

“produce progress, not regression or trivial educational advancement.” 

E.R., 909 F.3d at 765 (internal quotation marks and citations omitted). That 

is, the demonstrated educational benefit “must be meaningful.” Michael F., 

118 F.3d at 248 (internal quotation marks and citation omitted); see also 

Endrew F., 137 S. Ct. at 1000 (noting that the IEP-adequacy standard “is 

markedly more demanding than [a] ‘merely more than de minimis’ test”).

Whether a child is able to pass general education classes and whether

a child’s test scores have increased are important indicators of whether a 

child has received a meaningful benefit. See Hous. Indep. Sch. Dist. v. Bobby 

R., 200 F.3d 341, 349–50 (5th Cir. 2000) (relying on these indicators). Here, 

after his IEP was implemented, D.C. passed all of his fifth-grade general 

education classes and his performance on several tests improved. However, 

contrary to the District’s assertions, these results do not compel reversal.

To start, the fact that D.C. passed all of his classes is not especially 

significant, as the Supreme Court has specifically rejected the proposition 

that a child is receiving a FAPE simply because he is “advancing from grade 

to grade.” Endrew F., 137 S. Ct. at 1000 n.2 (quoting Rowley, 458 U.S. at 203 

n.25). Moreover, we have held that the development of a child with 

disabilities “should be measured . . . with respect to the individual student.” 

Bobby R., 200 F.3d at 349. In this case, D.C. had never failed any of his 

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classes, and his reading grade actually declined in fifth grade to a 77 from a 79 

in fourth grade. Thus, measured against his past performance, D.C.’s grades 

did not meaningfully improve.

Similarly, D.C.’s test results did not demonstrate a meaningful 

benefit. We have three relevant precedents on this issue: Bobby R., Hovem, 

and V.P. In Bobby R., we held that the district court did not clearly err in 

finding that the child benefitted from his IEP because his absolute test scores 

increased across his subjects, even though his percentile scores declined. 200 

F.3d at 349–50, 349 n.3. Going a step further, in Hovem, we held, on de novo 

review,10 that the child had meaningfully benefitted from his IEP because he 

had “obtained a high school level education that would have been sufficient 

for graduation.” 690 F.3d at 399. However, we stressed that the child had 

been able to “measure up to ordinary grade-level standards,” id.; indeed, the 

child had consistently “excel[led]” in school, earning “above-average 

grades” in his general education classes, id. at 391, 393. By contrast, in V.P., 

we held that the district court did not clearly err in determining that the child 

had not benefitted from her IEP where her improved test scores were due to 

“unapproved deviations from [her] IEP,” meaning that there was no 

acceptable evidence that the child was actually progressing due to her IEP. 

582 F.3d at 590–91.

10 Hovem reviewed the district court’s factual findings de novo because it concluded 

that the district court had applied an incorrect legal standard. 690 F.3d at 397, 399–400. 

We are uncertain that this was the correct approach. See Veasey v. Abbott, 830 F.3d 216, 

229 (5th Cir. 2016) (en banc) (explaining that, where a district court’s fact-finding was 

premised on a legal error, the proper remedy is to vacate and remand “unless the record 

permits only one resolution of the factual issues” (quoting Pullman-Standard v. Swint, 456 

U.S. 273, 292 (1982))). Because it is immaterial here, we leave the issue of Hovem’s 

continuing viability to another day. 

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After his IEP was implemented, D.C.’s STAAR reading score 

improved but remained below grade level; his reading fluency score

marginally increased,11 but was still well below the grade level expectation;

and his reading MAP score improved to just below average. The most 

pronounced improvement came on the STAAR exam, but, as the district 

court noted, because the District provided D.C. with an additional 

accommodation on his fifth grade STAAR exam that he did not have in fourth 

grade, it is unclear whether D.C.’s improved score was attributable to an 

increase in his reading ability or merely due to his changed testing conditions. 

Consequently, as in V.P., D.C.’s STAAR results were not reliable evidence 

of a benefit stemming from the IEP. 

Even if the STAAR results are not discounted, D.C.’s test scores do 

not present the sort of strong evidence of improvement that we relied on in 

Hovem and Bobby R. Unlike the child in Hovem, D.C. was not consistently 

meeting grade-level expectations, as his reading fluency and STAAR results 

were below grade level. Further, although there was some improvement, 

such improvement was paltry compared to Bobby R., where the district 

court’s finding of demonstrated benefits was supported by increased scores 

in at least ten different areas. 200 F.3d at 349–50, 349 n.3; see also Michael Z, 

580 F.3d at 295 (affirming the district court’s finding that the child “received 

minimal educational benefits” despite “a few isolated instances of arguable 

academic success”). Accordingly, in light of our precedents and the

evidence in the record,12 we cannot say that the district court clearly erred in 

11 Specifically, D.C.’s reading fluency improved from 75 to 80 words correct per 

minute (“wcpm”)—at least 38 wcpm below the grade level expectation of 118–27 wcpm. 

12 In addition to D.C.’s grades and test scores, the District emphasizes the 

testimony of D.C.’s teacher that, by the end of fifth grade, D.C. was able to read aloud with 

confidence. Because the teacher’s perception of D.C.’s confidence is entirely subjective, 

this evidence is of limited value. See D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 563, 568 

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concluding that D.C. did not receive meaningful demonstrated benefits from 

his IEP. 

3. Collaboration and Least Restrictive Environment

We have repeatedly emphasized that district courts do “not legally err 

by affording more or less weight to particular Michael F. factors.” Id. at 294; 

accord R.S., 951 F.3d at 330. We have also explained that “district courts are 

[not] required to consider” these factors at all, so long as their analysis 

comports with the substantive standard set forth by the Supreme Court. 

Michael Z, 580 F.3d at 293; see also Michael F., 118 F.3d at 253 (explaining that 

the “four factors can serve as indicators of whether an IEP is reasonably 

calculated to provide a meaningful educational benefit under the IDEA” 

(emphasis added)).

Given these precedents, the district court did not legally err in its 

treatment of the collaboration and least-restrictive-environment factors. It 

was well within the district court’s prerogative to conclude that the District’s 

efforts to collaborate with D.C.’s parents did not outweigh its failure to 

provide him with an individualized IEP and the absence of meaningful 

demonstrated benefits. It was also permissible for the district court to 

conclude that the least-restrictive-environment factor was not at issue 

because neither party disputed that general education was the appropriate 

environment for D.C. See Michael Z, 580 F.3d at 293–95 (affirming the 

district court’s conclusion that the IEP was inadequate where the district 

(3d Cir. 2010) (concluding that the hearing officer appropriately discounted “subjective” 

measures of academic performance). Moreover, the District points to nothing in the record 

establishing that the ability to read aloud is a dispositive indicator of a child’s reading 

comprehension ability; for example, a child might enthusiastically read aloud from a text 

written in a foreign language without understanding a single word. Thus, this testimony 

does not undermine the district court’s conclusion. 

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court did not address the least-restrictive-environment factor because the 

child’s parents did not dispute it); cf., e.g., Brillon v. Klein Indep. Sch. Dist., 

100 F. App’x 309, 311–15 (5th Cir. 2004) (per curiam) (extensively 

discussing the least-restrictive-environment factor where the child’s parents 

sought to move the child into general education classes from special 

education). 

To sum up, the district court did not clearly err in concluding that the 

IEP was not individualized and did not provide demonstrated benefits, did 

not err in concluding that the least-restrictive-environment factor was not at 

issue, and did not err in concluding the balance of the factors favored D.C. 

Accordingly, we AFFIRM the district court’s conclusion that the District 

denied D.C. a FAPE by providing him with an inadequate IEP. 

C. Compensatory Education

The District also appealsthe district court’s denial of its counterclaim 

to vacate the hearing officer’s award of compensatory education to D.C. 

However, D.C. maintains that the issue is moot because the District has 

already provided the full amount of the compensatory education award, and 

there is no way to take it back.13 Because mootness goes to our subject-matter 

jurisdiction, we must resolve this issue before proceeding further. Goldin v. 

Bartholow, 166 F.3d 710, 718 (5th Cir. 1999) (“We have no power under 

Article III to decide the merits of a case that is moot when it comes before 

us.”). 

A claim becomes moot “[i]f an intervening event renders the court 

unable to grant the litigant ‘any effectual relief whatever.’” Dierlam v. 

Trump, 977 F.3d 471, 476 (5th Cir. 2020) (quoting Calderon v. Moore, 518 U.S. 

13 During the pendency of the proceedings before the district court, the District 

began providing D.C. with the awarded compensatory education.

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149, 150 (1996)), cert. denied, 141 S. Ct. 1392 (2021) (mem.). So, typically, if 

the plaintiff represents to a court that it is no longer seeking relief on its claim, 

the case is moot. See Patriot Cinemas, Inc. v. Gen. Cinemas Corp., 834 F.2d 

208, 211–15 (1st Cir. 1987)(concluding that an appeal was moot as to the issue 

of whether to remand a claim to state court because the plaintiff had 

represented to the state court that it would not pursue that claim regardless

of the result of the federal appeal and was therefore judicially estopped from 

pursuing that claim); 13B Charles Alan Wright, Arthur R. 

Miller & Edward H. Cooper, Federal Practice and 

Procedure § 3533.2 (3d ed. 1998) (“There can be no doubt that an action

is mooted if the plaintiff voluntarily withdraws.”). Similarly, if the defendant 

credibly pledges to the court that it will provide the plaintiff’s requested 

relief, the case is moot. See Lee ex rel. MacMillan v. Biloxi Sch. Dist., 963 F.2d 

837, 839 (5th Cir. 1992) (concluding that the case was moot because the 

defendant had committed to providing the plaintiff with her requested relief). 

But see Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 

167, 189 (2000) (explaining that “a defendant’s voluntary cessation of a 

challenged practice” will moot a case only if the defendant carries “[t]he 

heavy burden of persuading the court that the challenged conduct cannot 

reasonably be expected to start up again” (internal quotation marks, 

alteration, and citations omitted)). 

Interestingly, this case falls into both of these buckets: When the 

District filed its counterclaim, it had not yet provided D.C. with the full 

amount of the compensatory education award, so if the district court had 

entered judgment in favor of the District and vacated the hearing officer’s 

award, the District would have been relieved of the burden of providing some 

portion of the award. But, at oral argument, both sides seemed to agree that

the District has now provided D.C. with the entirety of the compensatory 

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education award.14 Therefore, D.C. has credibly relinquished any claim to 

additional compensatory education, thereby providing the District with the 

substantive relief it sought—to be relieved of the burden of continuing to

administer compensatory education to D.C. That is, no matter whether one 

views D.C. as the plaintiff or the defendant on the compensatory education 

issue,15 D.C.’s representations to us are enough to render the issue moot. See 

Patriot Cinemas, 834 F.2d at 211–15; Lee, 963 F.2d at 839. 

Further, the District has expressly conceded that compensatory 

education cannot be disgorged. Consequently, there is apparently no dispute 

that if we were to vacate the hearing officer’s award of compensatory 

education, there would be no substantive change in the parties’ relationship

and no gain provided to the District

So, the only remaining question is whether ordering vacatur provides 

“effectual relief” even if the vacatur would not change the relationship 

14 D.C. stated that all of the awarded compensatory education “was provided,” and 

he disclaimed any interest in the provision of additional compensatory education. When 

the District was asked about the issue, it declined to represent that any hours of 

compensatory education remain outstanding, instead invoking the “capable of repetition, 

yet evading review” exception to mootness, and arguing that the compensatory education 

issue is material to the issue of whether D.C. was entitled to attorneys’ fees. Even if the 

District did not affirmatively agree with D.C.’s position that all of the awarded 

compensatory education has been provided, the District has abandoned any argument to 

the contrary by failing to assert such an argument despite our direct questioning. See 

NAACP v. City of Kyle, 626 F.3d 233, 236 & n.2 (5th Cir. 2010) (explaining that the 

plaintiffs had apparently abandoned their associational-standing claim by failing to invoke 

it when directly questioned at oral argument). 

15 Such a determination is complicated because D.C. and the District have each 

played the role of plaintiff on this issue at different points in this litigation: D.C. was the 

plaintiff in the administrative hearing, but the District is the (counterclaim) plaintiff in the 

present federal lawsuit. Regardless of how the roles are assigned, given the intervening 

events, we are confident that we can no longer grant either party any effectual relief 

regarding the compensatory education award. 

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between the parties. The answer is “No”; once the parties have lost their 

“concrete interest” in the litigation, the case is moot. Knox v. Serv. Emps. 

Int’l Union, Local 1000, 567 U.S. 298, 307–08 (2012) (internal quotation 

marks and citation omitted). Indeed, if the contrary were true, it would be 

impossible for any case to become moot on appeal, as there is always an 

underlying judgment adverse to one of the parties that might be vacated. Yet, 

it is not impossible for cases to become moot on appeal. E.g., N.Y. State Rifle 

& Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020) (per 

curiam). Therefore, vacatur is not an effectual form of relief in-and-of itself. 

In the closing minutes of oral argument, the District attempted to 

invoke the “capable of repetition, yet evading review” exception to 

mootness. Because the District did not present this argument in its briefing, 

it has been waived. See, e.g., Cornucopia Inst. v. USDA, 560 F.3d 673, 675 n.3 

(7th Cir. 2009) (“At oral argument, Cornucopia made brief reference to the 

‘capable of repetition yet evading review’ exception to the mootness 

doctrine. However, Cornucopia has waived this argument by failing to raise 

it in its briefs.”); M.L. v. El Paso Indep. Sch. Dist., 369 F. App’x 573, 577 n.6 

(5th Cir. 2010) (per curiam) (“In his brief, Appellant did not argue that his 

claims were saved by any exception to the doctrine of mootness. As a 

consequence, all such arguments are waived.”). Finally, the District also 

maintains that we must resolve the compensatory education issue to 

determine whether D.C. was a prevailing party entitled to attorneys’ fees. 

But, as explained below, that is not so. 

D. Attorneys’ Fees

The District challenges only D.C.’s prevailing party status, not the 

amount of the district court’s fee award. Under the IDEA, a child is a 

prevailing party such that the child may receive attorneys’ fees if he “attains 

a remedy” that: (1) “alters the legal relationship between the school district 

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and the [child with disabilities]”; (2) “fosters the purposes of the IDEA”; 

and (3) “receives judicial imprimatur.” Lauren C. ex rel. Tracey K. v. 

Lewisville Indep. Sch. Dist., 904 F.3d 363, 374 (5th Cir. 2018) (internal 

quotation marks and citation omitted). 

Even setting the compensatory education award aside, D.C. received 

such a remedy, as the hearing officer ordered the District to modify D.C.’s 

IEP so as to provide him with reading comprehension instruction using Read 

180 or a similar program. See Krawietz, 900 F.3d at 676, 678 (concluding that 

the child was a prevailing party because the hearing officer had ordered the 

district to modify the child’s IEP). This modification: (1) clearly altered the 

relationship between D.C. and the District to D.C.’s benefit; (2) fostered the 

IDEA’s purposes by providing D.C. with “appropriate special services 

necessary to education that [D.C.] had not received prior to the request for a 

due process hearing,” Angela L. v. Pasadena Indep. Sch. Dist., 918 F.2d 1188, 

1195 (5th Cir. 1990);16 and (3) received the required judicial imprimatur, see 

Lauren C., 904 F.3d at 374 (noting that a hearing officer’s order confers the 

necessary judicial imprimatur). Hence, we may uphold the district court’s 

determination that D.C. was a prevailing party without considering the 

appropriateness of the hearing officer’s award of compensatory education. 

We AFFIRM. 

16 In Lauren C., we misquoted Angela L. as stating that a remedy fosters the IDEA’s 

purposes if the child “receives any appropriate special services that the child had not 

requested prior to the request for a due process hearing.” Lauren C., 904 F.3d at 376 

(emphasis added) (misquoting Angela L., 918 F.2d at 1195). Under our rule of orderliness, 

“one panel of this court cannot overrule the decision of another panel.” United States v. 

Dial, 542 F.3d 1059, 1060 (5th Cir. 2008) (per curiam) (quotation omitted). Thus, our 

misquote in Lauren C. did not alter the rule established in Angela L., which we follow here. 

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Don R. Willett, Circuit Judge, dissenting:

I cannot join the majority opinion because, in my judgment, this case 

presents no child find violation, no IEP inadequacy, and no basis for a 

compensatory education award.

My two principal areas of disagreement:

1. Whether or not the majority correctly concluded that the 

IEP was inadequate, the compensatory education award is 

inappropriate.

2. On this record we cannot conclude that the IEP was 

inadequate.

I

For starters, the compensatory education issue is not moot. 

Additionally, and under any standard of review, D.C. is not entitled to the 

compensatory education award he received.

A

The majority opinion mistakenly declines to address compensatory 

education on mootness grounds, pointing to judicial estoppel and waiver. 

This confusion began as a throwaway argument: In a single paragraph, D.C. 

posited that we “may . . . query” whether the compensatory education award 

is moot, based on the assertion that the District provided some quantity of 

compensatory education. D.C. did not explain this equivocation, provide any 

reasoning, or cite any authority; plus, as D.C. conceded, his mootness 

contention relies on factual assertions not found in the record.1

The majority opinion disregards the latter problem. To save the

former, the majority opinion tries to fill in some reasoning: D.C. is judicially 

1 See supra III.C. 

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estopped from claiming further compensatory education, thus mooting the 

District’s claim for reversal of compensatory education. I see at least three 

problems with this approach. 

First, as the majority opinion acknowledges, mootness applies only 

when the court cannot grant any effectual relief.2 That is not the case here, 

however, because nothing in the record proves that the District has provided 

the entire compensatory education award, nor has it “credibly pledged to the 

court” that it will do so.3 Further, we have no factual basis to conclude that 

vacatur of the compensatory education award would provide no relief to the 

District. 

Second, judicial estoppel has nothing to do with mootness. Judicial 

estoppel prevents parties from “assuming inconsistent positions in 

litigation” in a manner that “play[s] fast and loose with the courts to suit the 

exigencies of self interest.”4 So, judicial estoppel is about holding parties to 

the consequences of their own actions. And mootness is about claimants who 

have received everything they’ve asked for.5 Therefore, it seems inapt to say 

2 See infra III.C (citing Dierlam v. Trump, 977 F.3d 471, 476 (5th Cir. 2020) (“If an 

intervening event renders the court unable to grant the litigant ‘any effectual relief 

whatever,’ the case is moot.” (citation omitted))).

3 Infra III.C (citing Lee ex rel. MacMillan v. Biloxi Sch. Dist., 963 F.2d 837, 839 (5th 

Cir. 1992)).

4 Allen v. C & H Distributors, L.L.C., 813 F.3d 566, 572 (5th Cir. 2015) (citations 

omitted); accord In re Oparaji, 698 F.3d 231, 235 (5th Cir. 2012). The three elements of 

judicial estoppel are: “(1) the party against whom judicial estoppel is sought has asserted a 

legal position that is plainly inconsistent with a prior position asserted in a prior case; 

(2) the court in the prior case accepted that party’s original position, thus creating the 

perception that one or both courts were misled; and (3) the party to be estopped has not 

acted inadvertently.” Id. (citation omitted).

5 See Dierlam, 977 F.3d at 476–77 (“[E]ven when the ‘primary relief sought is no 

longer available,’ ‘being able to imagine an alternative form of relief is all that’s required to 

keep a case alive.’” (citation omitted)).

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that judicial estoppel’s operating on one party can moot the claims of the 

opposing party as a general matter.

6

Third, the majority opinion begins by stating that it must address

mootness because it is an issue of subject-matter jurisdiction, but then 

proceeds to conclude that it cannot address the capable-of-repetition 

exception because of waiver. Addressing mootness is mandatory or it isn’t. If 

parties can’t forfeit arguments against subject-matter jurisdiction (i.e., 

mootness arguments), they can’t forfeit arguments in favor of subject-matter 

jurisdiction (i.e., exception-to-mootness arguments).

7

B

D.C. is not entitled to the compensatory education award he received 

because he has unclean hands. Further, he has the burden of proof but no 

evidence supporting his award. 

1

As to unclean hands, D.C.’s aunt, who works for his lawyer, pressured

the District into providing the unnecessary services for dyslexia that D.C. 

now challenges.

8 According to the hearing officer, she “set the tone for the 

meeting by informing the ARD Committee that she had ‘sued’ her own 

6 We have held once that judicial estoppel mooted a bankruptcy trustee’s motion to 

substitute as the real party in interest in a maritime liability-limitation action, in place of the 

bankruptcy debtors who’d filed a personal-injury claim in that action. In re Superior 

Crewboats, Inc., 374 F.3d 330, 336 (5th Cir. 2004). We later declined to apply Superior 

Crewboats beyond its facts, and it suffices to say that this case bears no resemblance to 

Superior Crewboats. Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 386 (5th Cir. 2008).

7 Cf. Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167, 190–94 (2000) 

(reaching conclusion on mootness via addressing the capable-of-repetition exception); 

accord Finnie v. Lee Cnty., 541 F. App’x 368, 372 (5th Cir. 2013).

8 D.C.’s aunt began attending ARD meetings on February 7, 2018. 

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child’s school district ‘six times’ and had been encouraging [D.C.’s] mother 

to do the same . . . for several years.” The meeting was described as 

“unpleasant,” “very charged and contentious,” “tough,” “hectic,” and 

“exhausting.” D.C.’s aunt was “‘demeaning’ to staff members from the 

District.” And she hijacked the proceedings: “The evaluator who had

conducted the [full individual evaluation for special-education eligibility] did 

not have a chance to discuss the evaluation,” and the District’s diagnostician 

“could not even fully present her own opinions.” “Instead, [D.C.’s] aunt 

insisted to the ARD Committee that [he] should qualify as a student with 

Dyslexia.”

As D.C. acknowledges, a compensatory education award is equitable 

relief.9 And “he who comes into equity must come with clean hands.”10 The 

unclean hands doctrine prohibits equitable relief when “an individual’s 

misconduct had immediate and necessary relation to the equity that the 

individual seeks.”11 It is entirely unfair for D.C. (really, hislawyer) to recover 

9 See Eltalawy v. Lubbock Indep. Sch. Dist., 816 F. App’x 958, 964 n.9 (5th Cir. 2020)

(“Compensatory education is an equitable remedy commonly sought in cases involving 

alleged violations of the Individuals with Disabilities Education Act (IDEA).” (collecting 

authorities)); accord P.P. v. Nw. Indep. Sch. Dist., 839 F. App’x 848, 857 (5th Cir. 2020)

(noting that the IDEA authorizes the district court to “grant such relief as the court 

determines is appropriate,” which makes “equitable considerations . . . relevant in 

fashioning relief” (first quoting 20 U.S.C. § 1415(i)(2)(C)(iii), and then quoting Sch. 

Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, 374 (1985)).

10 Restatement (Third) of Restitution and Unjust 

Enrichment § 63 (Am. L. Inst. 2011); see also 4 Charles Alan Wright & 

Arthur R. Miller, 4 Fed. Prac. & Proc. Civ. § 1043 (4th ed. 2021) (explaining 

that after the merger of law and equity, “the maxims of equity continue to be a factor in 

determining both the plaintiff's right to be heard on a claim for equitable relief,” including 

“the notion that a party seeking equitable relief must not have “unclean hands’”).

11 Glenn A. Guarino et al., Misconduct of applicant; “clean hands” doctrine as 

consideration in granting injunctive relief, 19 Fed. Proc., L. Ed. § 47:22. Accord 

Restatement (Third) of Restitution and Unjust Enrichment § 63

(Am. L. Inst. 2011) (“The idea is that a person who engages in inequitable conduct may 

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against the District for providing the wrong services because D.C. (really, his

lawyer) succeeded in forcing it to provide exactly those services. P.P. v. 

Northwest Independent School District helps us here.12 There, compensatory 

education was unwarranted because the parents “rejected several remedial 

services offered” by the district and “stymied [the district’s] efforts” by 

refusing meetings and “refusing to adopt agreed-upon revisions” to the 

proposed IEP.13 So too here. D.C. agreed with the IEP developed via the 

ARD process, declined compensatory services offered, and declined a followup meeting with the ARD committee.

2

P.P. also illuminates the second reason D.C. is not entitled to the 

compensatory education award he received—his need for and lack of proof. 

“Plaintiffs b[ear] the burden in the underlying due process hearing and on 

district court review to establish entitlement to compensatory education.”14

The plaintiff in P.P. failed to carry this burden because the expert who 

testified that P.P. needed 240 hours: (1) had no experience with P.P.’s 

learning disability, (2) did not review P.P.’s records, and (3) could not 

articulate any problem with the district’s program.15 Likewise, D.C. fails to 

meet his burden. No evidence demonstrated a current need for 

forfeit the right to a judicial determination of what ‘equity and good conscience’ require of 

the other party to the transaction.”). 

12 839 F. App’x at 857.

13 Id.

14 P.P., 839 F. App’x at 857.

15 Id. at 857–58.

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compensatory education.16 Even setting that aside, the hearing officer’s 

calculation relies on evidence corresponding to a learning disability that D.C. 

does not have.17

* * *

My disagreement with the majority opinion’s compensatoryeducation conclusion stands independent from my disagreement with the

IEP-adequacy conclusion. Next, however, I will explain why I believe that we 

cannot conclude, on this record, that the IEP is inadequate. 

II

Everyone agrees that the district court incorrectly placed the burden 

of proof on the District to show that D.C.’s IEP was adequate. The majority 

opinion dismisses this problem in a footnote, again relying on waiver. But I 

am not persuaded that we can disregard the District’s burden-of-proof 

16 It is undisputed that there is no evidence that D.C. still needed compensatory 

education by the time of the due process hearing; instead, the most recent evidence 

indicated that D.C. ended fifth grade at grade level. 

17 D.C.’s first expert said that 20 hours of compensatory education were necessary, 

after retracting his previous testimony that 60 to 80 hours were necessary as “an irascible 

senior moment.” D.C.’s second expert testified that D.C. was entitled to 30 to 45 minutes 

of dyslexia instruction, individually or in a small-group format, for each day he’d been 

deprived of services. Despite concluding that dyslexia services were inappropriate for D.C.,

the hearing officer apparently relied on the second expert and concluded that D.C. was 

owed 45 minutes of individual reading-comprehension instruction, four days per week, for 

the year starting November 17, 2017, when the district would have timely convened an 

ARD meeting. The hearing officer did not walk through his calculation, but the number can 

be reached as follows: A school year is 75,600 minutes, Tex. Educ. Code § 25.081(a), 

and a school day must be at least 420 minutes, id. § 25.0815(b)(2)(B); therefore, the school 

year is 180 days or 36 weeks. (45 minutes x 4 days/week x 36 weeks = 6,480 minutes or 108 

hours.) D.C. identified no evidence showing that dyslexia remediation is interchangeable 

with remediation for reading-comprehension difficulties. The district court accepted the 

hearing officer’s conclusion without analysis. 

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argument, however imperfectly it was raised.

18 My point is not to rehash the 

district court’s resolution of factual disputes; it’s simply that the District set 

forth enough evidence that we cannot dismiss the burden-of-proof error as 

harmless. The majority opinion omits important facts in favor of the District 

from each of the four elements of IEP adequacy. For brevity’s sake, I will 

discuss only the individualization element.

As to the individualization factor, the majority examines two services: 

dyslexia services and co-teach reading services. The dyslexia services are at 

best a wash—D.C. relentlessly demanded them, and this limited the 

District’s ability to consider other services. The dyslexia services shouldn’t 

count for D.C., and they definitely shouldn’t count against the District. 

The evidence regarding co-teach services is no more than a wash, 

either. D.C. points to the hearing officer’s finding that the co-teaching 

services were provided as an accommodation, arguing that co-teaching was 

about permitting access, not ameliorating his reading-comprehension 

difficulties. Yet the hearing officer relied on testimony that, in full, states that 

co-teachers and general education teachers know “the accommodations and 

the goals for the student” and work together to support the student. 

According to the District, the “and the goals” language shows that co-teach 

services were about more than accommodation.

Last, D.C. complains that the evidence does not determine how much 

time the teacher spent helping him, as opposed to other children. But the 

evidentiary buck stops with D.C., who, as we have consistently stated, bears 

18 T. B. by & through Bell v. Nw. Indep. Sch. Dist., 980 F.3d 1047, 1057 (5th Cir. 2020) 

(Higginson, J., dissenting) (citing Jefferson v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir. 

2018) (“[P]arties cannot waive the application of the correct law or stipulate to an incorrect 

legal test.”)).

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the burden to prove the inadequacy of the IEP.19 Further, D.C. has no answer 

to the following evidence of individualization: 

• The District correctly identified D.C.’s readingcomprehension issues.

• The ARD committee agreed on IEP goals for reading 

comprehension and fluency and provided a certified special 

education teacher to implement those goals.

• D.C.’s certified special-education teacher was provided as 

a “service” on the IEP; elsewhere the IEP provided 

“accommodations.”

• The IEP scheduled 3.75 hours of co-teaching services to 

occur only during D.C.’s reading class.

• Only D.C.’s reading grade has both a regular education 

component and a special education component.

• D.C. received 40 minutes a day, 5 days a week of Leveled 

Literacy Intervention, the District’s research-based 

program “to address his reading comprehension and 

fluency” difficulties.

If D.C. and the District come out evenly on the evidence related to 

dyslexia and co-teaching services—not to mention if the District has the 

better of D.C. in this regard—we cannot say that the evidence is “substantial 

and undisputed” or “overwhelmingly one-sided” in D.C.’s favor, such that 

the district court’s burden-of-proof error was harmless.20 

19 See, e.g., Richardson Indep. Sch. Dist. v. Michael Z, 580 F.3d 286, 292 n.4 (5th Cir. 

2009) (collecting cases).

20 Sealed Appellee 1 v. Sealed Appellant 1, 767 F.3d 418, 424–25 (5th Cir. 2013).

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Facing similar errors, we have previously reversed or vacated and 

remanded, depending on the state of the evidence.

21 On this record, in my 

view, the evidence heavily favors the District and reversal would be 

appropriate. At minimum, however, we should vacate and remand.

* * *

For these reasons among others, the majority opinion has, in my view, 

mistakenly substituted its “own notions of sound educational policy for those 

of the school authorities” we review.22

21 Compare Veasey v. Abbott, 830 F.3d 216, 229 (5th Cir. 2016) (en banc) (explaining 

that, when factual findings are premised on a legal error, we vacate and remand unless “the 

record permits only one resolution of the factual issue”) (quoting Pullman-Standard v. 

Swint, 456 U.S. 273, 292 (1982)), with Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 397 

(5th Cir. 2012) (reversing and explaining that “[f]actual findings made under an erroneous 

view of controlling legal principles are reviewed de novo”).

22 Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017). 

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