We’ve been telling you about a lot of Child Find cases of late. Today—a case where two Texas districts were charged with a Child Find violation. The 5th Circuit ruled in favor of both districts.
The student lived in Pearland ISD but attended a private school located in Houston ISD due to the student’s visual impairment. The parent filed Child Find claims against both districts. The court limited its analysis to the one year preceding the request for a due process hearing due to the statute of limitations. In that one year, Houston responded promptly after it received notice that the student was moving to a new private school and might need special education services. This was in June, 2017. HISD recommended a formal evaluation, conducted informal observations and completed its FIE in October. The court held that the district’s “intervening observations, or ‘proactive steps,’ to collect information necessary to determine” the student’s eligibility shows that “HISD’s delay between notice and referral was reasonable.” No Child Find violation.
The parent made three arguments as to why Pearland should have “found” their child. First, the family moved from Houston to Pearland in 2014. However, they did not contact PISD, or enroll the child there. Instead, the student continued in a private school in Houston. The court held that moving into the district was not sufficient to trigger Child Find:
S.S.’s move to Pearland—while remaining enrolled in private school in Houston—did not afford PISD notice that S.S. was a student with a disability within its jurisdiction, let alone that S.S. had a disability.
Then there was the 2016 email that went to both districts, expressing interest in “vision services” and asking “how to move forward.” PISD did not respond to this, but Houston did and the parent followed up with Houston, but not PISD. The court affirmed the lower court’s conclusion that this one email was not enough to trigger Pearland’s Child Find duty.
The third argument was based on the fact that in 2017 HISD contracted with a PISD employee to conduct an IEE (Independent Educational Evaluation) of the child. The court held that this also did not put the PISD on notice of a Child Find duty. The court noted that the PISD employee, while acting as an agent for HISD, could not share personal information about the student with PISD.
PISD’s Child Find duty was finally triggered by an email in May, 2017 directly asking for services. The district responded the next day, scheduling a meeting and referring for an evaluation a month later. This was reasonable. No Child Find violation.
This 5th Circuit decision is also noteworthy because it is the first to specifically mention the infamous 8.5% standard for special education eligibility formerly included in the PBMAS. The plaintiffs sued T.E.A. for a statewide dereliction of duty, citing the 8.5. The court dismissed this charge without making any comment about the wisdom or legality of the 8.5 standard. Instead, the court noted that there was no Child Find violation by the districts in this case, and thus nothing to attribute to T.E.A. Furthermore, the district court found no evidence to support this claim and “on appeal the Parents fail to explain why the [lower] court clearly erred.”
It's an “unpublished” opinion issued by the 5th Circuit on September 19, 2022. I’m pleased to let you know that Meredith Walker from our firm’s Irving office wrote an excellent amicus brief in support of Pearland ISD in this case. It’s Heather B. v. Houston ISD, 81 IDELR 241 (5th Cir. 2022).
DAWG BONE: WE’RE TALKING ABOUT ALL THIS AT THE ZOOMING WITH THE DAWG NEXT THURSDAY THE 19TH. HOPE TO SEE YOU THERE.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: an interesting IEP goal…