Federal Fifth Circuit Says Texas Student Recieved FAPE

A recent ruling by the Fifth Circuit Court of Appeals, R.P. v. Alamo Heights ISD, __ F.3d __, 2012 WL 6701939 (5th Cir. 2012) affirmed the lofty place “student progress” holds among criteria determining a free and appropriate public education (FAPE).


R.P. was a student at Alamo Heights ISD in 2009. Late that year, R.P.’s parents brought a litany of complaints to a due process hearing officer concerning the treatment of their child, who had autism, an intellectual disability, and a speech impairment. At bottom, the parents believed R.P. had been denied a FAPE. The hearing officer saw it differently, as did the trial court to whom the parents subsequently appealed, leading to their appeal of the case to the Fifth Circuit Court of Appeals.

Central to the dispute were a sequence of contentious meetings of the student’s Admission, Review, and Dismissal (ARD) committee. These meetings were sometimes concluded early when tensions ran high between the father the committee. The father believed that the district was shutting him out of the process. In the appeal to the Fifth Circuit, R.P. and family argued, among other things, that the parents had been denied meaningful participation in the ARD process.

Elvin Houston, an attorney in the San Antonio office of Walsh, Anderson, Gallegos, Green and Treviño, P.C., laid out several scenarios in which it could be permissible for school districts to terminate an ARD over parental objection: (1) When the district believes there may be more information needed to consider a parent’s surprise request; (2) when a parent brings new information that district personnel have not previously had an opportunity to review; (3) when the district is seeking the assistance of legal counsel to respond to the parent; or, as was the case here, (4) if the parties find that they cannot work together effectively.

“In each of these situations,” Houston said, “it’s important that the district schedule the meeting to re-convene promptly and at a time when the parent can attend.” If too much time elapses between ARD sessions, he warned, the student at issue might lose educational opportunities.

It was the judgment of the Fifth Circuit that R.P. had not missed educational opportunities and had indeed made progress, even while concurring with the plaintiff’s complaint about an Assistive Technology (AT) evaluation being mishandled by the district. Said Houston, “The court concluded that regardless of whether the evaluation was actually complete in the fall of 2008”— a point that was in dispute—“the committee needed to review the data to incorporate the AT evaluation into the student’s 2008-2009 IEP [Individualized Education Program]. By waiting until late May, 2009, to consider the AT evaluation, the court concluded that the IEP could not have been appropriately individualized.”

When asked how districts can prove that their evaluations are properly considered, Houston stated, “Good meeting deliberations can be very helpful. The deliberations should capture the committee’s discussions about the report, rather than attempt to capture information that is already written in the report.”

Houston recommends that the deliberations include specific points of agreement or disagreement that are discussed during review of a report. Likewise, when discussing the specific recommendations in an evaluation report, it is important to identify any recommendations that the committee may have rejected and document why they were rejected.

Houston also encourages districts to put time-stamps in the ARD committee deliberations. According to Houston, the records could indicate, “Something like, ‘Dr. Jones started the discussion of the psychological evaluation at 1:30,’ and then later, ‘The committee accepted the recommendations of Dr. Jones psychological evaluation at 2:15.’ While the entire discussion may only span four sentences in the deliberations, it may be helpful to note that the committee took 45 minutes to review the report. This can be helpful if a family complains that the district did not give them an opportunity to ask questions or give input.”

Asked what advice he would give districts dealing with parents whose emotions run hot during meetings, Houston was firm: “Don’t allow yourselves to be pulled into the same situation. It’s hard to continue the meeting with parents who are using loaded language and challenging your competency, but…when tensions run high, take a short break and give everyone an opportunity to cool off. Sometimes you may only need ten minutes and a Diet Coke.”

Houston also emphasizes the importance of ARD committee members listening for the parents’ unspoken concerns and being open, if necessary, to bringing in someone who may be able to assist in understanding their point of view