Lisa M. v. Leander Independent School District, 924 F.3d 205, 74 IDELR 124 (5th Cir. May 15, 2019), is a somewhat unusual case concerning eligibility under the IDEA that nevertheless may be instructive in the eligibility disputes that impartial hearing officers encounter. The case involved a student who struggled early in his school career. In second grade, he was provided accommodations under Section 504, and was diagnosed with attention deficit hyperactivity disorder (ADHD) and developmental coordination disorder before the end of that school year. His parents grew dissatisfied with his progress, and just before he started fourth grade, they requested a special education evaluation for him. The district refused, saying that the Section 504 accommodations met his needs. The parents obtained a private evaluation, which found he had a specific learning disability and an impairment in written expression and recommended consideration for special education. The district began a response-to-intervention (RTI) process and agreed to conduct a full special education evaluation. After completion of the evaluation, the district held a meeting at which it found the student eligible under the IDEA on the basis of specific learning disability and other health impairment-ADHD; then at another meeting the district wrote up an IEP for the student proposing 20 minutes per day of special education instruction in writing, as well as occupational therapy as a related service. The district’s minutes indicated that the parents agreed with the IEP, but shortly after the meeting the parent sent an email expressing disagreement with the evaluation and the IEP. The district confirmed the student’s eligibility in an addendum to its evaluation.
Twelve days later, after a private staff meeting, the district changed course and found the student not eligible for services under the IDEA. The student finished fourth grade with only the Section 504 accommodations and without special education support. The school reported that he had grades of A or B in all his classes and no discipline referrals; the parents said he complained of stress causing stomach aches, and that he was frequently sent home, sometimes more than twice a week. The parents challenged the eligibility denial in a due process hearing. The hearing officer found in the parents’ favor, and they sued for attorneys’ fees in federal district court; the school district filed a counterclaim appealing the merits of the decision. The district court affirmed the hearing officer decision that the student was IDEA-eligible, and the court of appeals affirmed. The court of appeals noted that the school district conceded that the student had a condition that qualified as a disability within the definitions in the IDEA and its regulations. The dispute was whether, as a consequence of the disability, the student needed special education.
The court said that “our task is to assess eligibility with the information available to the ARD committee [Texas’s version of an IEP team] at the time of its decision. An erroneous conclusion that a student is ineligible for special education does not somehow become acceptable because a student subsequently succeeds. Nor does a proper finding that a student is ineligible become erroneous because the student later struggles.” 924 F.3d at 215.
In applying that approach, parental input, teacher information, and other data needed to be taken into account. Grades and test scores should be a consideration, but are not the exclusive considerations. In affirming that the student needed special education, the court emphasized the student’s record of failure in benchmark tests, his attention difficulties and problems with written work, lack of concentration, plus the stomach pains due to distress over academics. The court noted that no meaningful new information was received before the district made its sudden reversal on the student’s eligibility. The hearing officer found the district’s change of position shocking, and the court relied on the hearing officer’s credibility determinations and the extensive testimony and analysis that went into the hearing officer decision. The district court properly afforded due weight to that decision.
Analyzing the record, the court of appeals said there was no reason to believe that the hearing officer was applying a standard that special education was needed to maximize the student’s potential. On the contrary, “The SEHO [special education hearing officer] made its position clear that J.M. meaningfully struggled in general education. Also, the SEHO endorsed the proposition that ‘Special Education is not appropriately used for a student to achieve his maximum potential,’ emphasizing that ‘Special Education will only provide [J.M.] with the same opportunity to succeed as other students, not at all assistance to meet his maximum potential.’” Id. at 219. The court discussed the student’s areas of strength, saying that “students with some baseline writing ability may still need special education.” Id. The court also declared that “Nothing in our opinion today should be read to foreclose the possibility that a student who demonstrates some academic success might still need special education. Indeed, federal regulations specifically provide that IDEA eligibility must be granted to a disabled student ‘who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.’ 34 C.F.R. § 300.101(c)(1).” Id. at 218 n.12.
The case is unusual in the district’s U-turn on the student’s eligibility. But the case is instructive on a different basis. For one thing, the court treated eligibility as a simple issue of fact. The question was not whether the district reasonably found the student not eligible, but whether the student was or was not eligible. Nevertheless, and this is the second thing, according to the court the determination is to be made on the basis of the evidence that was available at the time of the eligibility decision. “Monday morning quarterbacking” is not acceptable on eligibility disputes. Id. at 215. The court also evaluated some of the evidence that might have persuasive force on the question of the need for special education, relying on performance in benchmark tests and parent and teacher input but acknowledging the student’s grades as well. The court’s comments about how students might need special education despite good grades may also merit attention, as might its comments about not applying a maximization standard.