Grant v. St James Parish Sch

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-31428
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31428 Summary Calendar

ELAINE F. GRANT, on behalf of herself and her minor daughter Ashton K. Grant,

Plaintiff-Appellant,

versus

ST. JAMES PARISH SCHOOL BOARD; LOUISIANA DEPARTMENT OF EDUCATION; LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CV-3757-N -------------------- August 23, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Elaine F. Grant (Mrs. Grant), on behalf of herself and her

minor daughter Ashton K. Grant (Ashton), appeals the district

court’s grant of summary judgment for the defendants in this

action under the Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. §1400, et seq.; Section 504 of the

Rehabilitation Act of 1973 (§ 504), 29 U.S.C. §794; and the

Louisiana Dyslexia Law, La. R.S. 17:7(11).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-31428 -2-

When a district court reviews a state hearing officer’s

decision in a due process hearing under the IDEA, it must accord

due weight to the hearing officer’s findings, but must reach an

independent decision based on a preponderance of the evidence.

The district court’s review is essentially de novo. Houston

Indep. School Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir.),

cert. denied, 121 S. Ct. 55 (2000). This court’s review of the

district court is a mixed question of fact and law that is

reviewed de novo. The underlying fact-findings, such as a

finding that a disabled student obtained educational benefits,

are reviewed for clear error. Id.

Appellant argues that the evidence is insufficient to create

an inference that St. James Parish schools provided a free,

appropriate public education (FAPE) to Ashton. She argues that

the administrative record is devoid of any documentation or

testimony showing that Ashton received Project Read, a structured

multi-sensory language program.

The evidence in the administrative record shows that Ashton

successfully progressed in the school system from grade seven to

grade 12 with mostly A’s and B’s, and passed the LEAP and GEE

tests. Her Project Read teacher testified that Ashton showed

improvement, and that she was efficient and capable to the point

where the teacher wondered why she needed the remediation. The

evidence shows that Ashton received an educational benefit and

that she received a free and appropriate education. See Bobby

R., 200 F.3d at 345-50. There is no evidence that Ashton was

denied access to an educational program or that the school No. 00-31428 -3-

district refused to provide reasonable accommodations for Ashton

to receive the full benefits of the school program under § 504.

Marvin H. v. Austin Indep. School Dist., 714 F.2d 1348, 1356 (5th

Cir. 1983).

Appellant argues that the district court failed to fully

appreciate the manner in which Louisiana's Dyslexia Law

incorporates both the IDEA and Section 504. She argues that

Louisiana's Dyslexia Law synthesizes the IDEA and § 504 and that

the IDEA's definition of special education and the requirements

of Bulletin 1903, and the regulations implementing the Louisiana

Dyslexia Law, result in a dyslexic student falling under the

protections of the IDEA. Appellant cites no law to support this

argument.

Pamela Zeringue, the director of special education services,

explained that special education is a step further than § 504 and

that no one, not Mrs. Grant, nor the 1903 Committee, nor any of

Ashton’s teachers had ever made a request to evaluate Ashton

under the IDEA for special education services. She further

testified that Ashton’s school records did not indicate that such

a request should have been made for her. Dr. Greene’s report did

not recommend special education services but mentioned only § 504

and Bulletin 1903 and interventions within the regular education

setting.

Louisiana law does not require evaluation for special

education services under the IDEA unless specifically requested.

Salley v. St. Tammany Parish School Bd., 57 F.3d 458, 464 (5th

Cir. 1995). The fact that Ashton was diagnosed with dyslexia is No. 00-31428 -4-

not sufficient in itself to qualify her under the IDEA. Her

impairment must have been deemed sufficiently serious to

necessitate special education services. 20 U.S.C.

§ 1401(3)(A)(ii). Appellant has not shown that a request for

evaluation under the IDEA was ever made or should have been made.

She has cited no authority for her argument that she was

automatically qualified by reason of her diagnosis with dyslexia.

Appellant argues that the district court failed to recognize

the legal gravity of the state’s failure to meet the procedural

requirements of the IDEA, Louisiana's Educational

Opportunities for Children with Exceptionalities Act, and

Section 504 of the Rehabilitation Act of 1973. She contends that

the State Level Review Panel’s failure to render a decision in

this matter for "lack of jurisdiction" was a flagrant violation

of the procedural safeguards guaranteed therein.

Appellant does not deny that she was afforded a due process

hearing and review by the state level review panel as required

under Bulletin 1706. Ashton was afforded the processes required

by the state pursuant to § 1415 of the IDEA and the Regulations

for Implementation of the Exceptional Children’s Act, Bulletin

1706, of the Louisiana Department of Education, which implements

administrative review procedures in Louisiana. Ashton received a

due process hearing and a state level review panel decision and

was able to bring her suit in federal court seeking review of the

state agency’s decision. No further process is due.

Appellant argues that the district court failed to

appreciate the gravity of a student suffering from a mild to No. 00-31428 -5-

moderate degree of dyslexia. She contends that she was five

grades behind in her reading ability due to her dyslexia, and

that St. James Parish Schools has never offered any evidence to

refute her sixth grade reading level. She contends that her

degree of dyslexia is an impairment that substantially limits a

major life activity, and that therefore, the district court erred

in assessing her degree of impairment.

Appellant does not explain exactly how this alleged failure

affects the district court’s ultimate determination. The

defendants were not required to maximize her educational

potential. Bobby R., 200 F.3d at 350. The inquiry is whether

she has received an educational benefit. Id. at 346-47.

Although Dr. Hoppe’s testing showed that Ashton read at a sixth

grade level, he could not and did not deny that she progressed to

a high school level in spelling and post high school in math;

that she had above average grades and had passed all the

objective measures of performance required to advance and

graduate in Louisiana; that she had improved in most areas since

1994; and that she had the potential to go to college. The

district court’s decision was based on Ashton’s educational

achievements and not on any characterization of the degree of her

disability.

AFFIRMED.