Maybe the 5th Circuit has it wrong…

Not all of the Circuit Courts analyze a claim of a denial of FAPE in the same way.  In some Circuits, the evidence is limited to the information that was available to the IEP Team (ARDC) when they wrote the IEP. The question then is: based on what the IEP Team knew at the time, was this IEP reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances?

The 5th Circuit uses the four-part test that it created in 1997 in Cypress-Fairbanks ISD v. Michael F.  The test is: 1) was the IEP individualized based on the student’s evaluation and performance; 2) was it administered in the LRE; 3) were services provided in a coordinated and collaborative manner; and…well let me build up the suspense about the fourth factor.   

The fourth of the four factors is often given more weight than the others. The fourth factor is the demonstration of positive academic and non-academic benefits.  That sounds good.  After all, the whole idea is to enable the student to make educational progress.  But how much sense does it make to use “progress” as your standard when the IEP has been in place for about two or three months at the tail end of a school year?

That was the situation in Klein ISD.  The IEP was completed on March 9, 2018. The hearing was held in August.  So how much time did the district have to produce some evidence of progress?  A few months after spring break.  It seems it would make more sense to ask the question that other circuits ask: was this IEP “reasonably calculated” to produce progress?  Surely it was. After all, the parties met for three days to develop it, and the parents agreed to it. 

I wouldn’t be writing about this if the court had viewed “progress” the way I thought it would.  The district produced plenty of evidence of progress, but the court dismissed it.  The student was in 5th grade, and served mostly in the mainstream.  The court noted that “after his IEP was implemented, D.C. passed all of his 5th grade classes and his performance on several tests improved.”  His reading MAP score improved, as did his STAAR reading grade. This would be particularly significant because reading was the main issue here. 

OK, then, we’re going home now, right?  No.  The court discounted the STAAR improvement because he got one accommodation in 5th grade that he had not had in 4th.  And as for those reading grades, there was this devastating drop:

Fourth Grade:
Fifth Grade, after IEP is implemented in March:


Oh my!  Learning loss!!

It might make sense to weigh “progress” as a factor if the district has had a year to demonstrate it. After all, the goals are annual goals, and the IEP is good for a year.  If we are going to consider “progress” as a factor, shouldn’t we give the district the same amount of time that a student has to demonstrate it? 

The court’s opinion in D.C. v. Klein ISD is hard to square with common sense, which is perhaps why it drew the strong dissent that we told you about on Monday.  But that’s the way it goes sometimes. The case was decided by the 5th Circuit in an unpublished opinion on June 17, 2021.  We found it at 2021 WL 2492842.


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Tomorrow: a volleyball player gets drunk….