Our firm was pleased to secure a favorable outcome in federal court last week. In DHH v. Kirbyville CISD, the United States District Court for the Eastern District upheld the decision of a special education hearing officer in favor of the school district. The decision reaffirms points that school districts will want to keep in mind:

• A student’s sporadic misbehavior does not support a finding that the student is emotionally disturbed; in order to qualify for special education, IDEA requires a showing that the student’s behavior has an impact on the child’s education.
• Even an imperfect evaluation may be sufficient so as long the evaluator employs a variety of assessment tools and strategies and the evaluation is designed to assess the student’s educational needs and evaluates the student in all potential areas of disability.
• Parents cannot pursue claims for damages under Section 504 or the ADA if the underlying claims are based on FAPE under the IDEA.

At the due process hearing, the student alleged that the school district ignored the findings of the student’s private evaluation and failed to satisfy the IDEA’s child-find mandate when it determined that the student did not meet eligibility criteria for special education services.  

The hearing officer found problems with the district’s evaluation. However, the hearing officer also observed that the private evaluator obtained almost all of his information from the student and her parent. Significantly, the parent failed to demonstrate that the student had experienced any educational impact from the behavioral and emotional concerns identified in the independent evaluation.

Challenging the hearing officer’s decision, the parent filed an appeal to the federal court in Beaumont, adding claims for damages under Section 504 and the ADA, all based on the alleged denial of FAPE. The federal court gave deference to the hearing officer’s findings that the school district had not failed to meet its child-find responsibilities. The court also dismissed the Section 504 and ADA claims, ruling that they were precluded by the court’s holding on the IDEA claim. Finally, the court determined that the hearing officer’s finding that the school district’s evaluation was flawed did not entitle the parent to recover attorneys’ fees as a prevailing party.

This case adds to a line of decisions in the Fifth Circuit that clarify that a parent must choose a cause of action before initiating due process.  If an IDEA claim is pursued through a due process hearing, a parent will be precluded from then alleging a claim for damages under Section 504 or the ADA in federal court for alleged failure to provide FAPE.

The firm is delighted to welcome Hans P. Graff as a member of our team.  Hans most recently served as Deputy General Counsel to the Houston Independent School District, where he has worked for the last 25 years.

Hans is a native of Houston and a graduate of the University of Texas at Austin and University of Texas School of Law.  As a member of the HISD general counsel’s office, Hans handled more than 300 special education due process hearings as well as providing general representation of HISD in all areas of school law.

Before practicing school law, Hans served in the U.S. Navy Judge Advocate General’s Corps in the Philippines, Italy, and the Persian Gulf.  He is a veteran of Desert Storm and served in Baghdad, Iraq with the Law and Order Task Force. Hans attained the rank of Captain in the Navy Reserve prior to his retirement. 

Hans will practice in our Houston office in the areas of special education and general school law.