Fifth circuit says “no Monday morning quarterbacking” and affirms a win for parents on eligibility.
On May 15, 2019, parents prevailed in the Fifth Circuit Court of Appeals’ decision in Lisa M., et al v. Leander Indep. Sch. Dist., which affirmed the district court’s decision that J.M. should have been found eligible for special education despite his ultimate academic success in school, earning all A’s and B’s with only the provision of a Section 504 Plan. The Fifth Circuit, echoing the arguments set forth by both L.M. and COPAA’s Amicus brief, explained that, unlike the review of the appropriateness of an IEP, in which courts do take into account hindsight evidence including academic and non-academic success, when reviewing the appropriateness of an IDEA eligibility decision, only the information available to the team at the time of the eligibility decisionshould be considered by reviewing hearing officers or courts. Thus, the Fifth Circuit made clear that in the context of reviewing eligibility “Monday morning quarterbacking” with subsequent information or events is not permissible.
Additionally, the Fifth Circuit reiterated that under the “clear error” standard of review, reversal of the district court’s decision is not warranted in a case, such as this one, where the “district court’s findings are well-supported, reasonable, and correct.” Moreover, the Fifth Circuit explained that in the “due process hearing context, which resembles a bench trial in many respects,” and during which the hearing officer in this case heard live testimony from fifteen witnesses, the “clear error” standard is afforded even “greater deference” because the findings are “based upon determinations of credibility” of the witnesses.
And finally, the Fifth Circuit clarified what it means to “need special education and related services” for purposes of determining eligibility under IDEA. While acknowledging that neither IDEA nor the federal regulations define what it means to “need” special education and related services, the Fifth Circuit reiterated that such “‘need’ should not be measured according to ‘whether or not a student’s potential could be maximized via special education services.’” Likewise, and important to this case, “while grades are a consideration in determining whether special education services are necessary, they may not be the exclusive one.” Accordingly, the Fifth Circuit found the hearing’s officers findings of J.M.’s documented struggles in accessing his general education supported his “need” for special education and related services, and thus affirmed the district court’s decision that J.M. should have been found eligible for special education under IDEA.
Congratulations to Sonja Kerr for her excellent advocacy!