IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-10621 Summary Calendar

SAMUEL TYLER W, on behalf of Debbie M, on behalf of Harvey W,

Plaintiff-Appellant,

versus

NORTHWEST INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas (USDC No. 4:01-CV-285-A) _______________________________________________________ December 16, 2002

Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.

PER CURIAM:*

The judgment is affirmed. We essentially agree with the district court’s reasoning

and add the following:

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1. Appellate review of the district court’s decision is a mixed question of law and

fact that we review de novo, but the underlying fact findings of the district court are

reviewed only for clear error. Houston Indep. Sch. Dist. v. Bobby R.,

(5th Cir. 2000).

2. Insofar as appellants Samuel Tyler W (Samuel) and his parents complain that

appellee Northwest Independent School District (the school district) failed to comply

with the procedural requirement that a regular education teacher be present at 1998-1999

ARD meetings under

(d)(1)(B)(ii), we have held that a failure to comply

with a procedural requirement of the Individuals with Disabilities Education Act (IDEA

or Act),

, may warrant a judicial finding that the district has

failed to provide the student with a free appropriate public education, but that “adequate

compliance” with the Act’s procedural requirements will ordinarily suffice. See Buser by

Buser v. Corpus Christi Indep. Sch.,

(5th Cir. 1995). We have not

held that a procedural failure necessarily warrants judicial relief. Moreover, in the

pending case, the record indicates that (1) the parents elected to severely limit Samuel’s

attendance at school and instead chose to school him at home during the relevant period,

(2) the school program for three-year-olds like Samuel in 1998-1999 was in any event a

program for children with disabilities (PPCD) only available to disabled children and

therefore not in our view a “regular education” program, and (3) the PPCD which

Samuel sporadically attended during the 1998-1999 school year consisted of less than

three hours per week in a general education setting where Samuel’s class interacted with

2 other students who were not disabled. The IDEA requires the participation of a “regular

education teacher of such child” only if the child “is, or may be, participating in the

regular education environment.” Only by the furthest stretching of the statutory language

did a “regular education teacher of such child” in a “regular education environment” even

exist.

3. Most assuredly Samuel had no regular or general education teacher who had

spent sufficient time with him to compel us to hold that the ARD meetings were not

“reasonably calculated to enable the child to receive educational benefits.” See Bobby

R.,

(internal quotation marks and emphasis omitted). Indeed, his parents

would be hard pressed to argue otherwise. Their main dispute with the school district as

to the substance of Samuel’s education was that they believed Samuel should receive

vastly more in-home training than the school district was willing to provide. In other

words, they did not want Samuel “mainstreamed” in the general student population,

despite the Act’s stated preference for mainstreaming disabled students whenever

possible. See

(a)(5)(A) (requiring participating states to establish

policies and procedures ensuring that “[t]o the maximum extent appropriate, children

with disabilities . . . are educated with children who are not disabled”). Yet they now

complain that the IEPs were fatally flawed because a mainstream teacher did not

participate in certain meetings.

4. As to the parents’ complaint that the district denied them access to assessment

reports prior to the ARD meetings, the Act does not specifically require that such reports

3 be made available to the parents prior to meetings called to develop the IEP. The Act

only requires “an opportunity for the parents . . . to examine all records relating to such

child and to participate in meetings with respect to the identification, evaluation, and

educational placement of the child, and the provision of a free appropriate public

education of such child . . . .”

(b)(1). Appellants do not persuade us

that the district court clearly erred in finding that “plaintiff’s parents very vocally

participated in every ARD committee meeting and . . . were not hindered by any alleged

withholding of documents,” and we have no quarrel with the district court’s ultimate

conclusion that “the IEPs developed through the Act’s procedures were reasonably

calculated to enable plaintiff to receive educational benefits.”

5. Appellants argue that the district court clearly erred in ignoring a level of

hostility between the district and the parents that resulted in a denial of a free appropriate

public education for Tyler. Appellants fail to persuade us that hostility between the

parents and school district personnel resulted in IEPs that were not reasonably calculated

to enable Samuel to receive educational benefits, or that the school district was unable or

unwilling to provide him with a free appropriate public education. On the contrary, the

district court did not clearly err in finding that school district personnel “selflessly

devoted themselves to serving plaintiff’s best interest despite their discomfort with

plaintiff’s parents.”

AFFIRMED.

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