Houston Independent School District v. V.P. ex rel. Juan P.

No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc (Fed. R.App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED. We also deny Panel Rehearing but withdraw our prior opinion, issued on April 23, 2009, and substitute the following.

The Houston Independent School District (HISD) initiated the present action in the district court as an appeal of an administrative decision that HISD had denied a child a free appropriate public education. The relevant statute is the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Reimbursement for a year of private school placement was awarded. The district court affirmed the decision. The court denied reimbursement for the private school placement during a second school year that occurred during the pendency of the proceedings. Both parties were aggrieved. and appeal. We AFFIRM as to the reimbursement for the first school year, REVERSE and RENDER as to the second year, and REMAND for further proceedings as to attorney’s fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

The child whose needs are at the center of this dispute is referred to as V.P. to protect her privacy. At the time of the administrative hearing, V.P. was an eight-year-old student within the jurisdictional boundaries of HISD. V.P. qualified as a child with a disability entitled to receive special education services under the IDEA due to her auditory and speech impairments. HISD first identified V.P. as a child eligible for special education when she was four years old. Accordingly, HISD placed V.P. in the Preschool Program for Children with Disabilities at Garden Oaks Elementary. It developed an individualized education plan (IEP) to address her language delays. After three weeks at Garden Oaks, V.P.’s mother obtained a transfer for her daughter to Wainwright Elementary School, where V.P.’s mother was employed. V.P. remained in a regular education, pre-kindergarten classroom at Wainwright Elementary for the remainder of the 2001-2002 school year.

A. 2002-2003 School Year

In 2002, V.P. began kindergarten in a regular education classroom at Wainwright. In October 2002, an Admission, Review, and Dismissal Committee (“IEP *580Committee” or “Committee”)1 met to develop an IEP for V.P.’s kindergarten year. The IEP Committee continued the identification of V.P. as a child with a speech impairment and approved two hours per week of speech therapy, along with classroom modifications. In the spring of 2003, V.P.’s parents obtained hearing aids for V.P., including a pair of loaner hearing aids in February 2003 and her own custom aids in May 2003.

In May 2003, V.P.’s IEP Committee met to evaluate V.P.’s progress under her current IEP and to prepare for the next school year. The Committee considered whether V.P. had a hearing impairment that would qualify her for special education services as a student with an auditory impairment. Finding that she did, it developed an IEP for audiological management for the 2003-2004 school year recommending that V.P. remain in a regular education classroom with modifications and teaching strategies designed to accommodate her hearing impairment. The Committee continued V.P.’s identification as a child with a speech impairment and continued two hours of speech therapy per week. Additionally, in May 2003, V.P. was provided with an FM loop system in her classroom for the last week of her kindergarten year.

B. 2003-2004 School Year

In October 2003, which was six weeks into V.P.’s first-grade year, her IEP Committee was convened to review her IEP in light of concerns expressed by V.P.’s mother and also by her classroom teacher, Ms. Williams, regarding V.P.’s academic performance and progress and whether a more restrictive educational placement was needed. The Committee continued V.P.’s identification as a child with auditory and speech impairments. The Committee further determined that V.P. should remain in a regular education classroom, but it approved the implementation of additional special education services and modifications within the regular education setting, including in-class support, frequent breaks, content mastery,2 and speech therapy. In addition to other recommendations, it requested additional testing, including a new audiological evaluation, new achievement testing, and an observation by an auditory impairment specialist.

The IEP Committee met again in January 2004 to discuss V.P.’s progress and the results of the additional testing. The Committee continued V.P.’s classification as a child with auditory and speech impairments. She would remain in the regular education classroom. The Committee continued V.P.’s placement in two hours of speech therapy per week and approved additional classroom modifications, including amplification, visual cues, having the teacher try to face V.P., preferential classroom seating, and questioning to check understanding. The Committee also developed an IEP to address V.P.’s language *581and listening skills. Under this IEP, an itinerant teacher for the auditory-impaired was to work with V.P. for one hour per week. Additionally, the Committee incorporated Earobics computer software as a special education service to address V.P.’s auditory-processing weakness.3 The Committee requested a new speech and language assessment.

In May 2004, V.P.’s IEP Committee met to evaluate V.P.’s progress and consider her placement for V.P.’s second-grade year, starting that fall. The Committee continued V.P.’s identification as a child with auditory and speech impairments. It then developed an IEP for the remainder of the 2003-2004 school year and the full 2004-2005 school year. For 2004-2005, which was V.P.’s second-grade year, the Committee recommended that V.P. remain in a regular education classroom with special education and related services similar to those provided during the prior school year, including two hours per week of speech therapy, one hour per week with the itinerant teacher for the auditory-impaired, amplification, visual cues, teacher facing student, preferential classroom seating, and questioning to test understanding. V.P.’s mother disagreed with the proposed IEP for 2004-2005 and indicated that she wished to withdraw V.P. from HISD and place her in a private institution. The Committee held a “recess meeting” in an effort to resolve the situation, but V.P.’s parents ultimately decided to withdraw V.P. one week before the end of the 2003-2004 school year.

C. 200Í-2005 School Year

In September 2004, V.P.’s parents enrolled V.P. in a kindergarten/first-grade class at the Parish School, a private school for children with language-learning disabil-

ities. At the Parish School, V.P. was in a small classroom with ten students, a teacher, and an assistant teacher. Through the Parish School, V.P. also worked with the Carruth Center, which provided language services to Parish School students. V.P. received ten hours of group speech/language therapy per week. Speech pathologists provided therapy addressing V.P.’s receptive and expressive language skills. V.P. also received phonemic awareness training, auditory memory training, and gap-detection training through the Fast ForWord computer program. Additionally, the Parish School attempted to minimize V.P.’s exposure to ambient noise whenever possible in an effort to promote noise desensitization. V.P.’s Parish School curriculum also included sequencing exercises to improve her auditory-processing skills.

In addition to the 2004-2005 school year, V.P. remained at the Parish School for the 2005-2006 school year during the district court’s review of the hearing officer’s decision. No issues regarding later years are raised.

D. Procedural History

In August 2004, V.P.’s parents requested a special education due process hearing before the Texas Education Agency to address whether HISD failed to provide V.P. with a free appropriate public education, failed to develop or implement IEPs reasonably calculated to provide V.P. with educational benefit, and failed to consider an appropriate placement for V.P. The Texas Education Agency hearing officer held a due process hearing in December 2004 and issued a decision in February 2005. The hearing officer concluded that V.P. has extensive language development and auditory-processing problems stem*582ming from sensory hearing loss and an auditory-processing disorder. The hearing officer found that V.P. requires auditory training, memory training, phonemic awareness training, noise desensitization, sequencing ability training, gap-detection training, onset-time training, visual instruction, and an FM loop system to meet her educational needs. The hearing officer concluded that HISD failed to include many of these necessary services in V.P.’s IEPs, including noise desensitization training, gap-detection training, and sequencing training. Ultimately, the hearing officer determined that HISD did not provide V.P. with a free appropriate public education and that the Parish School was an appropriate placement for V.P. Accordingly, the hearing officer awarded VP.’s parents reimbursement for V.P.’s 2004-2005 placement at the Parish School.

In May 2005, HISD appealed the hearing officer’s decision to the district court. V.P. filed an answer and counterclaim in June 2005, appealing the hearing officer’s decisions on the issues for which she did not prevail at the due process hearing. V.P.’s answer and counterclaim did not specifically seek payment for V.P.’s 2005-2006 placement at the Parish School. In September 2005, during a Rule 16 scheduling hearing, V.P. informed the court that she intended to introduce evidence in addition to the administrative record for the district court’s consideration on appeal.4 Months later, in June 2006, V.P. filed a motion to submit additional evidence in which she indicated that she intended to introduce reimbursement evidence regarding the costs of V.P.’s placement at the Parish School for the 2005-2006 school year.

In March 2007, the district court granted partial summary judgment in V.P.’s favor. The court affirmed the hearing officer’s determination that HISD failed to provide V.P. with a free appropriate public education, failed to develop educationally beneficial IEPs, and failed to consider an appropriate placement for V.P. It further affirmed the hearing officer’s decision that V.P. is entitled to reimbursement for the 2004-2005 Parish School placement. With respect to the 2005-2006 Parish School costs, the court refrained from addressing that issue because V.P. had not moved for summary judgment on it.

The court then requested additional record development regarding the appropriate amount of reimbursement to be awarded. The parties stipulated that $16,125.30 was the proper reimbursement for the 2004-2005 school year and the amount would also be appropriate should reimbursement for the 2005-2006 placement be awarded. After the filing of cross motions for summary judgment, the Court denied reimbursement for the 2005-2006 school year.

V.P. now appeals, arguing that the district court erred in failing to award reimbursement for V.P.’s 2005-2006 Parish School placement and the attorney’s fees and costs expended in seeking such reimbursement. HISD has filed a cross-appeal alleging that the district court erred in concluding that it failed to provide V.P. with a free appropriate public education.

II. DISCUSSION

A. Free Appropriate Public Education

When a district court reviews a hearing officer’s decision under the IDEA *583program, it receives the records of the administrative proceedings and also takes additional evidence at the request of any party. “Although the district court must accord ‘due weight’ to the hearing officer’s findings, the court must ultimately reach an independent decision based on a preponderance of the evidence.” Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir.1997) (citations omitted); see also 20 U.S.C. 1415(i)(2)(C); Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 205-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Thus, the district court’s review is “virtually de novo.” Michael F., 118 F.3d at 252.

We, in turn, review a district court’s decision concerning the propriety of a local school district’s IEP and the need for an alternative placement de novo as a mixed question of law and fact. Id. “The district court’s findings of underlying fact, such as findings that a disabled student obtained educational benefits under an IEP, are reviewed for clear error.” Id. (citation omitted). The clear error standard of review “precludes reversal of a district court’s findings unless [the court is] left with a definite and firm conviction that a mistake has been committed.” Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir.2006) (internal quotation marks and citation omitted). The party challenging the appropriateness of an IEP bears the burden of demonstrating that the IEP and resulting placement were inappropriate under the requirements of the IDEA. Id. (citation omitted).

One of the primary purposes of the IDEA is to ensure that children with disabilities receive a “free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). As “a local educational agency responsible for complying with the IDEA as a condition of the State of Texas’[s] receipt of federal education funding,” HISD must “(1) provide each disabled child within its jurisdictional boundaries with a ‘free appropriate public education’ tailored to his unique needs, and (2) assure that such education is offered ... in the least restrictive environment consistent with the disabled student’s needs.” Michael F., 118 F.3d at 247 (citations omitted). These requirements are implemented through HISD’s development of IEPs for its disabled students. Id. Through a child’s IEP, HISD must provide a “basic floor of opportunity” that “consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the [disabled] child.” Rowley, 458 U.S. at 201, 102 S.Ct. 3034. HISD need not provide its disabled students with the best possible education, nor one that will maximize the student’s educational potential. Michael F., 118 F.3d at 247 (citing Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034). “Nevertheless, the educational benefit to which the Act refers and to which an IEP must be geared cannot be a mere modicum or de minimis; rather, an IEP must be likely to produce progress, not regression or trivial educational advancement.” Id. at 248 (internal quotation marks and citation omitted). In short, HISD must provide its students with “meaningful” educational benefit. Id.

When a parent challenges the appropriateness of an IEP, a reviewing court’s inquiry is twofold. The court must first ask whether the state has complied with the procedural requirements of the IDEA, and then determine whether the IEP developed through such procedures was “reasonably calculated to enable the child to receive educational benefits.” *584Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034. If the court finds that the state has not provided an appropriate educational placement, the court may require the school district to reimburse the child’s parents for the costs of sending the child to an appropriate private school or institution. Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 369-70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); Michael F., 118 F.3d at 248. Reimbursement may be ordered only if it is shown “that (1) an IEP calling for placement in a public school was inappropriate under the IDEA, and (2) the private school placement ... was proper under the Act.” Michael F., 118 F.3d at 248 (citations omitted).

HISD argues that the district court erred in concluding that it failed to provide V.P. with a free appropriate public education. Despite V.P.’s disabilities, HISD asserts she was receiving a meaningful educational benefit, including earning a promotion from first to second grade under the same standards that apply to non-disabled first graders. HISD further contends that the IDEA does not require it to provide V.P. with an education designed to remediate her disability or to ensure optimal performance, and it maintains that the district court erred in concluding that it should have implemented every aspect of the program recommended by V.P.’s expert witness.

We have set out four factors that serve as “indicators of whether an IEP is reasonably calculated to provide a meaningful educational benefit under the IDEA,” and these factors are whether “(1) the program is individualized on the basis of the student’s assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative manner by the key ‘stakeholders’; and (4) positive academic and non-academic benefits are demonstrated.” Id. at 253; see also Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 810 (5th Cir.2003). Both the hearing officer and the district court found that all of these considerations militated in favor of finding that HISD failed to provide V.P. with a free appropriate public education. We will deferentially review the district court’s fact findings with respect to each of these factors. We will also give de novo consideration to any legal issues that arise under each.

1. Individualized program on the basis of V.P.’s assessment and performance

The district court found that V.P.’s IEPs were not sufficiently individualized to her needs. The court pointed to these deficiencies: as of May 2004, more than a year after V.P.’s IEP Committee recommended an audiologieal evaluation, the evaluation still had not been completed; V.P.’s IEPs were not specific enough with regard to V.P.’s auditory-processing or audiological deficiencies because they lacked strategies to assist with sequencing, gap detection, and noise desensitization; although the Committee recognized that V.P.’s most significant problems were speech and language deficiencies due to hearing loss, it did not integrate special education sessions with a teacher for hearing-impaired students until January 2004; and the Committee did not address problems that developed with V.P.’s FM loop system in September 2003.

HISD argues that each of the bases for the district court’s finding are erroneous. Initially, it asserts that a school district is not required to furnish every special service necessary to maximize a child’s potential. Consequently, HISD’s failure to provide V.P. with sequencing training, gap detection, and noise desensitization did not render V.P.’s IEP inadequate. Instead, *585HISD maintains that these services were programs suggested by V.P.’s expert witness to remediate V.P.’s speech and auditory-processing disorder, and the fact that HISD failed to provide these services does not mean that V.P.’s needs were not being addressed. HISD further maintains that it should not be penalized for failing to include an explanation concerning the problems with V.P.’s FM loop system in the IEP Committee minutes. HISD points out that the problem was caught and corrected, and there is no requirement that the Committee’s notes include all issues that arise on a day-to-day basis.

V.P.’s IEP included several accommodations and modifications to address her general speech and auditory impairments, such as limited speech therapy (two hours per week), visual cues, preferential classroom seating, questioning to check understanding, an FM loop system, content mastery classes, and limited instruction by an itinerant teacher for the auditory impaired (one hour per week). However, these services failed adequately to address V.P.’s distinct auditory-processing disorder.

V.P.’s expert witness, Dr. Ray Battin, a neuropsychologist and audiologist, testified that he performed an advanced audiological evaluation on V.P. in October 2004. Battin’s evaluation revealed that V.P. has moderate to severe sensory hearing loss and severe auditory-processing problems. To address these problems, Battin explained that V.P. requires noise desensitization, sequencing training, and gap-detection work and that V.P.’s May 2004 IEP did not address those needs. Battin noted that although the May 2004 IEP was good for V.P.’s expressive language delay problems, it was inappropriate to address her auditory-processing disorder. In fact, Battin testified that V.P. needed a separate IEP for her auditory-processing disorder.

In light of Battin’s testimony, we find no clear error with the district court’s finding that noise desensitization, sequencing training, and gap-detection work were necessary to address V.P.’s specific auditory-processing problems. Further, there was evidence to support that they were not offered merely as a means of maximizing her potential or making her more competitive with the other members of her class. Based on the valid fact-finding concerning what was necessary to address her auditory needs, and applying our de novo review, we accept that her IEP was insufficiently individualized.

2. Program administered in the least restrictive environment

The IDEA requires that children with a disability be provided a free appropriate public education in the least restrictive environment:

To the maximum extent appropriate, children with disabilities ... [should be] educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment [should occur] only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. § 1412(a)(5)(A).

The district court concluded that V.P.’s IEP did not provide her with sufficient supplementary services to be successful in the general education classroom. In reaching this conclusion, the court explained that it was not concerned with whether V.P. was mainstreamed to the maximum extent possible; instead, it was addressing whether V.P. was mainstreamed beyond her capabilities. The court noted several deficiencies in V.P.’s *586ability to benefit satisfactorily from her education in the regular classroom, including her failure to attend content mastery training after the fall of 2003. There was evidence that although V.P. paid attention to the teacher’s portion of a lesson, she was unable to participate in the group portion of a lesson. Further, she could remain focused on her assignment only for short periods of time without redirection. The court also explained that V.P.’s FM system did not allow her the benefit of class discussion. There is no record evidence that the proposed solution to this problem (having the teacher pass the microphone around the class during discussion) was ever implemented. The court also noted that when the loop component of the system was unavailable, V.P.’s use of headphones further limited her ability to hear her classmates and participate in class discussions. Finally, the court pointed out that after V.P. lost her hearing aids on the playground, she regularly took them off before going out for recess. Nothing in the record suggests that the IEP Committee attempted to address this problem with V.P. or her parents. Thus, V.P. was restricted in her ability to communicate and socialize with other students during recess.

Without conceding the point, HISD maintains that even if the district court was correct in finding V.P.’s placement improper, the appropriate remedy would be to require the school to provide additional supplementary aids and services in the general education environment or to allow V.P. to attend a combination of regular and special education classes. Additionally, HISD contends that because of the nature of V.P.’s disability, exposure to the language models of non-disabled peers is important to V.P.’s progress.

V.P.’s regular education placement was certainly a less restrictive environment than her Parish School placement. However, the IDEA mandates that a child be placed in the least restrictive environment in which the child can achieve an appropriate education. See 20 U.S.C. § 1412(a)(5)(A). The IDEA’S strong preference in favor of mainstreaming must “be weighed in tandem with the Act’s principal goal of ensuring that the public schools provide [disabled] children with a free appropriate public education.” Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1044-45, 1048 (5th Cir.1989) (internal quotation marks and citation omitted).

Though HISD tried to accommodate V.P. in a regular education classroom, the district court concluded that V.P. was not receiving a meaningful educational benefit from such placement. Although exposure to the language models of V.P.’s non-disabled peers is important, V.P.’s interaction with her peers within the regular education classroom was significantly limited. Under the FM loop system, only V.P.’s teacher wore a microphone. Accordingly, V.P. was not receiving amplification of her peers during class and group discussions. Additionally, because V.P. removed her hearing aids during recess, she was not able to interact effectively with her peers during a significant portion of her time outside of class. The district court’s fact-finding regarding the difficulties that arose due to her placement in the general classroom, including that there were insufficient supplemental services, is not clearly erroneous. Applying a de novo review, we agree that V.P.’s IEP failed to provide her with the least restrictive environment appropriate to her condition.

3. Coordinated and collaborative services provided by key stakeholders

The district court concluded that the services HISD provided V.P. were not coordinated and collaborative. The court explained that although V.P.’s IEP Com*587mittee meetings were well attended and generally included the key stakeholders, the participants failed to communicate and collaborate outside of the meetings. For example, the special education chair never discussed YP.’s progress with her classroom teacher outside of the meetings, and V.P.’s classroom teacher never discussed Y.P.’s progress with Y.P.’s writing teacher or other school staff outside of the Committee meetings. Furthermore, when V.P.’s classroom teacher missed a meeting in January 2004, the record does not reflect that anyone informed her of the modifications made in that meeting, even though their implementation required the teacher’s involvement. Additionally, the special education chair instructed V.P.’s classroom teacher to modify V.P.’s regular tests and assignments, but no such modifications were adopted by the Committee.

The district court also noted that the HISD staff “struggled with training and followup.” The court concluded that the one-page flyer provided to train school staff on working with hearing-impaired students was inadequate. Furthermore, the school nurse who was assigned to maintain V.P.’s FM system received little training and provided little training to the other staff members. The nurse did not attend the IEP Committee meetings and did not adequately communicate with others to repair V.P.’s FM loop system in a timely fashion. Finally, school staff did not follow up on V.P.’s failure to attend content mastery for more than two months or on an October 2003 Committee plan to try proposed modifications at Wainwright for thirty days before revisiting the possibility of placing V.P. in Sutton Elementary’s oral deaf program.

HISD maintains that these isolated occurrences are insufficient to show that it failed to implement substantial or significant provisions of V.P.’s IEP, that the services it provided were sufficient to confer an educational benefit upon V.P., and that the district court’s determination that it failed to implement the content mastery provision of V.P.’s IEP is not supported by the record evidence. According to HISD, VP.’s mother made the decision to prohibit V.P. from attending content mastery, and it could not force her to attend over her mother’s instructions to the contrary. HISD further responds that the IEP Committee met multiple times during the school year to discuss YP.’s progress and adjust her program accordingly, and that there was testimony from other teachers indicating that they communicated frequently about V.P., including testimony from V.P.’s classroom teacher that she often talked with V.P.’s mother and testimony irom VP.’s speech teacher that she worked closely with all of YP.’s teachers.

“[A] party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.” Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir.2000). What provisions are significant in an IEP should be determined in part based on “whether the IEP services that were provided actually conferred an educational benefit.” Id. at 349 n. 2.

The fact-findings by the district court that are fundamental to the conclusions on this factor are sound. First, we find no clear error that poor communication and collaboration between the Wainwright school nurse and others assigned to monitor the system led to the problems with the FM loop system being out of service for approximately two months. Furthermore, while the FM loop was broken, school personnel allowed V.P. to wear the alternative headphone system over her *588hearing aids. There was no error in finding that to be improper and potentially harmful. Further, there is evidence that the special education chair instructed V.P.’s classroom teacher to provide testing and assignment modifications without such modifications being included in V.P.’s IEP. The special education chair’s unilateral decision to change the IEP suggests a lack of coordination and collaboration with V.P.’s other key stakeholders. Next, it was not clearly erroneous for the court to find that the IEP Committee did not communicate effectively and collaborate to address V.P.’s failure to attend content mastery. Although there is evidence that VP.’s mother made the decision to remove V.P. temporarily from the service, the school staff failed to follow up on V.P.’s extended absence. Finally, V.P.’s classroom teacher testified that in November 2003, VJP.’s one-on-one aide stopped coming to work with V.P. for approximately three to four weeks at the direction of the school principal, despite the fact that V.P.’s IEP called for one-on-one assistance.

In addition to problems with the implementation of V.P.’s IEP, the district court did not clearly err in finding that V.P.’s key stakeholders received inadequate training. Although the school provided its personnel with a one-page tip sheet for working with an auditory or speech impaired child, such minimal training was insufficient. Moreover, despite such training, V.P.’s classroom teacher, one of the most important stakeholders, explained that she was unable to communicate effectively with V.P. and evaluate her progress.

A Demonstration of positive academic and non-academic benefits

Perhaps one of the most critical factors in this analysis is the final one. This factor seeks to determine whether the student was obtaining benefits from the IEP. Michael F., 118 F.3d at 252. There are subordinate components of the fact-finding, perhaps best thought of as evaluating the validity of the various measures of the progress that were offered. It is difficult analytically to compartmentalize all the determinations as ones of fact and ones of law, but we will proceed to make that effort.

The district court concluded that V.P. made only minimal progress, and the benefits she received were not meaningful. The court noted that there was conflicting testimony regarding V.P.’s progress at Wainwright — V.P.’s mother and classroom teacher were not encouraged by V.P.’s progress; V.P.’s speech therapist included both positive and negative impressions of V.P.’s advancement; and V.P.’s standardized speech and language test scores did not improve over time. The court explained that V.P. failed language arts and reading during the first two nine-weeks of the fall semester. Her grades then improved when her teacher implemented test and assignment modifications; however, her teacher testified that she would not have achieved passing grades without the modifications. Furthermore, although V.P. met the promotion standards for second grade, based on her grades with the modifications and the district standards for standardized testing with modifications, her classroom teacher testified that V.P. had not mastered the curriculum necessary to be successful in second grade.

HISD contends that V.P. demonstrated academic advancement because she achieved passing grades in her regular education program sufficient to advance to the next grade, her standardized scores show that she achieved the level of educational benefit required by the IDEA, and she mastered the high frequency words required for promotion. HISD maintains that the district court improperly considered V.P.’s standardized speech and language test scores. HISD notes that such *589scores are percentile scores that merely compare VP.’s scores to those of other children who took the test, and V.P.’s development should be measured with respect to her individual progress, not her abilities in relation to the rest of the class. HISD also points to objective evidence indicating that V.P. was receiving an educational benefit from her HISD placement, arguing that V.P.’s speech and language skills suggested three years of progress in the three years she was in HISD, and achievement testing in November 2003 indicated that V.P. was performing at or near the first-grade level in most areas.

HISD further alleges that the IDEA does not require a school district to ensure that a disabled child is able to advance at a rate faster than non-disabled peers. Even when a disabled child falls further behind her peers, she may still be receiving some educational benefit from the placement. HISD attributes V.P.’s speech therapist’s equivocal responses regarding her progress to the requirement that the therapist assess both VP.’s strengths and weaknesses in the classroom. HISD asserts that V.P.’s weaknesses show that V.P. continues to have a disability and do not indicate that she has not received a free appropriate public education. Finally, HISD argues that the testimony of V.P.’s teacher that V.P. would need modifications to perform well in second grade does not support the district court’s conclusion that VP.’s progress was minimal.

Urged strongly upon us as a controlling precedent, particularly in light of the point about test scores, is a 2000 decision of this court also involving HISD. See Bobby R., 200 F.3d 341. In that case, we considered whether HISD provided a free appropriate public education to a student with speech disabilities. Only the third and fourth factors that we have discussed here were at issue in Bobby R.: were the services required in the child’s IEP provided in a coordinated and collaborative manner, and had the child demonstrated academic and non-academic benefits from his IEP? Id. at 348. What is most relevant here is the discussion of this last factor. We will review our prior analysis.

We start with context. In applying Bobby R., it is of some relevance that the court was considering whether the district court dearly erred in finding that a child was receiving a meaningful educational benefit. Here, the issue is whether the district court dearly erred in finding that V.P. was not receiving a meaningful educational benefit.

The student, Bobby R., argued that where he stood in relation to his non-disabled peers was the best measure of his academic performance, whereas HISD maintained that passing scores and advancement from grade to grade was the proper indicia of academic progress. Id. We sided with HISD:

a disabled child’s development should be measured not by his relation to the rest of the class, but rather with respect to the individual student, as declining percentile scores do not necessarily represent a lack of educational benefit, but only a child’s inability to maintain the same level of academic progress achieved by his non-disabled peers.

Id. The court pointed out that the test scores and grade levels in a number of subjects had improved during the child’s years in HISD. Id. It concluded that the improvements were not trivial and that no clear error existed in the district court’s factual determination that the child was receiving educational benefits from his IEP. 200 F.3d at 350. It was not necessary for the child “to improve in every area to obtain an educational benefit,” as maximization of a disabled student’s educational potential is not required. Id.

*590HISD argues that just as in Bobby R., V.P. had improved test scores and advanced to a new grade level. Therefore, the district court is said to have erred in determining that she did not receive more than a minimal educational benefit from her IEP. Even though her test scores improved and she was advanced only after her teacher implemented modifications in her assignments and tests, HISD argues that such modifications are permitted under the IDEA. HISD also submits that a failure to master curriculum cannot be determined by comparing V.P.’s success to that of her non-disabled peers.

We find the district court’s rulings on this fourth factor to be consistent with Bobby R. In the present case, passing grades and yearly advancement were not found to be adequate measures b