Fifth Circuit Clarifies: Absenteeism Alone Does Not Trigger IDEA Child Find, and Attendance-Based Lack of Instruction Can Defeat Eligibility

Introduction

In A.P. v. Pearland Independent School District, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s judgment that the school district did not violate the Individuals with Disabilities Education Act (IDEA). The per curiam decision addresses two recurring IDEA questions:

• When does a school district’s Child Find duty to identify and evaluate a student with suspected disabilities arise?
• Can a student qualify for special education when her academic struggles are primarily attributable to chronic absenteeism rather than a disability?

The case arises from a dispute between parents and the Pearland Independent School District (PISD) over whether the district should have identified their daughter, A.P., as a student with a disability requiring IDEA services. While A.P. experienced academic difficulty, the record showed pervasive absenteeism, refusal by her parents to accept district placement and intervention recommendations, and a refusal to consent to a district evaluation. Parents later obtained a private neuropsychological report opining that A.P. had specific learning disabilities, but that report omitted teacher input, classroom observations, and any consideration of A.P.’s attendance.

The Fifth Circuit’s decision crystallizes two important principles. First, within this circuit, chronic absenteeism and poor grades, without independently apparent behavioral, medical, or psychological indicators, do not trigger a school district’s Child Find obligation. Second, where a student’s substandard academic performance stems from lack of appropriate instruction attributable to absences, IDEA regulations may preclude an eligibility finding.

Summary of the Opinion

The Fifth Circuit affirmed summary judgment for PISD. The court held:

• Child Find: A.P.’s absenteeism, poor grades, and a teacher’s outreach regarding attendance did not put the district on notice of a likely disability. The earliest trigger date was when parents first raised suspected dyslexia in September 2022. The district promptly offered an evaluation in October 2022, but the parents refused consent.
• Eligibility: The district court reasonably concluded A.P. did not qualify for IDEA services. Teachers who observed A.P. in class believed she could perform when present and that her difficulties were driven by absences and failure to seek tutorials. The private evaluation (by Dr. Roman) lacked core IDEA-required components—teacher input, classroom observation, assessment of attendance and its instructional impact, and some ancillary screenings—and thus carried limited weight.
• Regulatory bar: Under 34 C.F.R. § 300.306(b)(1), a district may not identify a student as disabled if the determinant factor is lack of appropriate instruction in reading or math. Because A.P.’s chronic absences prevented her from receiving instruction, that regulation supported the conclusion that she did not qualify.
• No FAPE denial: Even if there had been a procedural Child Find defect (which the court did not find), there was no denial of a free appropriate public education (FAPE) because procedural violations are actionable only if they cause a loss of educational opportunity—and A.P. was not eligible for IDEA services in any event.

Factual and Procedural Background

A.P. performed typically in grades 3–5 in PISD. After a year of homeschooling (6th grade), her 7th and 8th grade attendance worsened; she failed state assessments but passed classes after targeted interventions, though absences remained high (25 in 8th grade).

During the COVID-19 era (9th grade), A.P. struggled with remote learning and later in-person coursework, particularly after her parents kept her in advanced classes contrary to district advice. She accumulated 24–29 absences in several core courses and failed five of seven classes. Teachers reported she could perform when present; concerns centered on attendance rather than suspected disability. She made up some credits in summer school.

In 10th grade, PISD again recommended on-level courses and offered the ACE program; parents declined both. Absences persisted (approximately 25 days), and A.P. withdrew to homeschool in February 2022. In September 2022, parents filed for due process and raised suspected dyslexia. PISD promptly offered a full individual initial evaluation (FIIE) in October 2022; parents refused consent. Months later they obtained a private evaluation from Dr. Michael Roman, who found learning disabilities in reading comprehension and math skills, but not ADHD or dyslexia. The evaluation lacked teacher input, classroom observation, attendance data, or review of work samples; the evaluator was unaware A.P. had substantial attendance issues. PISD convened an IEP committee meeting to consider the report; parents did not attend. The district concluded the information was insufficient and renewed its request to evaluate.

A Special Education Hearing Officer (SEHO) denied parents’ claims. The district court affirmed, finding PISD satisfied Child Find, A.P. was not IDEA-eligible, and her academic problems stemmed from absenteeism. The Fifth Circuit affirmed.

Detailed Analysis

Precedents and Authorities Cited

• Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir. 2005) (en banc): Confirms IDEA obligates recipient states and LEAs to make FAPE available to eligible children ages 3–21; frames IDEA’s core obligations, including Child Find.
• Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009): Describes Child Find’s scope: states must identify, locate, and evaluate all children with disabilities to ensure they receive needed services.
• Dallas ISD v. Woody, 865 F.3d 303, 320 (5th Cir. 2017): Child Find is triggered when the district is on notice of facts or behavior likely to indicate a disability.
• Krawietz v. Galveston ISD, 900 F.3d 673, 676 (5th Cir. 2018): Once on notice, districts must identify and evaluate within a reasonable time.
• Spring Branch ISD v. O.W., 961 F.3d 781, 793–94 (5th Cir. 2020): Establishes a three-part Child Find inquiry: (1) trigger date; (2) satisfaction date; and (3) reasonableness of any delay. Also notes districts need not “immediately evaluate every student exhibiting below-average capabilities” (quoting D.K. v. Abington).
• Leigh Ann H. v. Riesel ISD, 18 F.4th 788, 797 (5th Cir. 2021): Mixed academic success, by itself, does not trigger the duty to evaluate.
• Alvin ISD v. A.D., 503 F.3d 378, 382–84 (5th Cir. 2007): Eligibility requires both a qualifying disability and a need for special education by reason thereof. Teacher testimony on educational performance can be more probative than external medical opinions in determining educational impact.
• Adam J. v. Keller ISD, 328 F.3d 804, 812 (5th Cir. 2003): Procedural defects are actionable only if they result in a loss of educational opportunity.
• Christopher M. v. Corpus Christi ISD, 933 F.2d 1285, 1292 (5th Cir. 1991): District courts assess credibility; deference to educators who had greater contact with the student is appropriate.
• Cypress-Fairbanks ISD v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997): Mixed questions of law and fact reviewed de novo; factual findings reviewed for clear error (with further reference to Anderson v. Bessemer City).
• Anderson v. City of Bessemer City, 470 U.S. 564 (1985): Defines the clear-error standard—requiring a firm conviction that a mistake has been committed to reverse factual findings.
• IDEA Regulations and Statutes: 20 U.S.C. § 1412(a)(3)(A) (Child Find); 20 U.S.C. § 1414(a), (c) (evaluation standards including teacher/observation data); 34 C.F.R. § 300.304(c)(4) (evaluate all areas related to suspected disability and consider classroom-based observations and teacher input); 34 C.F.R. § 300.306(b)(1) (no eligibility determination if lack of appropriate instruction in reading or math is the determinant factor).

Legal Reasoning

1) Child Find Trigger: Absenteeism and Poor Grades Are Not Enough

Applying the Woody trigger and Spring Branch framework, the court held that A.P.’s chronic absenteeism and poor grades did not, either separately or together, put PISD on notice of a likely disability. The court distinguished cases where attendance-based Child Find findings were made because those students’ absences were intertwined with known behavioral, medical, or psychological conditions (for example, diagnosed anxiety and depression in Pasadena Unified; Crohn’s disease and significant behavior in Culley; severe psychological conditions in SPB v. Washoe County).

In A.P.’s case, there were no such comorbid indicators. Parents themselves excused the absences, typically citing family travel or benign medical issues, and the private evaluator later found no ADHD or dyslexia. The court underscored a practical policy concern: converting absenteeism alone into a trigger would force districts to second-guess routine parental excuses, creating unnecessary friction and diverting resources.

The court also rejected parents’ reliance on a teacher’s outreach to the counselor and vice principal. The teacher explicitly testified she did not suspect a learning disability and observed that A.P. did well when in class. Because teacher testimony is given substantial weight in IDEA proceedings, that outreach—focused on attendance, not disability—did not trigger Child Find.

The court therefore fixed the earliest Child Find trigger at the moment parents first notified PISD of suspected dyslexia (September 2022). PISD promptly initiated the evaluation process in October 2022, satisfying the duty within a reasonable time. Parents, however, refused consent to evaluate.

2) Eligibility: Attendance-Based “Lack of Appropriate Instruction” Can Defeat IDEA Qualification

The court affirmed the district court’s conclusion that A.P. did not meet IDEA’s two-prong eligibility: (1) qualifying disability, and (2) need for special education by reason of that disability. Several factors supported this outcome:

• Multiple teachers credibly testified A.P. could understand and complete coursework when present; their consistent view was that attendance and failure to seek tutorials drove her academic struggles.
• Parents had rejected the district’s recommendations to take on-level courses and to enroll in the ACE support program, reinforcing that the core barrier was not suspected disability but inconsistent access to instruction.
• The private evaluation lacked IDEA-required evaluation components and context: no classroom observations, no teacher input, no work samples, no attendance analysis, and even basic information gaps (e.g., misunderstanding the homeschooled 6th grade year). The evaluator himself conceded that attendance is critical to benefit from instruction, further undercutting the report’s probative value.
• By regulation, if lack of appropriate instruction in reading or math is the determinant factor, a district may not identify a student as disabled (34 C.F.R. § 300.306(b)(1)). The court concluded A.P.’s extensive absences prevented her from receiving appropriate instruction, squarely invoking this bar to eligibility.

3) Procedural vs. Substantive: No FAPE Denial Absent Educational Harm

The court further reasoned that even if there had been a procedural misstep in Child Find timing, there was no denial of FAPE because procedural defects are actionable only when they cause a loss of educational opportunity. Given A.P. was not eligible and parents refused the district’s attempt to evaluate, no educational opportunity was lost by any alleged procedural delay.

Impact and Practical Implications

Clarified Rule on Absenteeism and Child Find in the Fifth Circuit

The Fifth Circuit’s opinion provides a clear guidepost: chronic absenteeism and poor grades, without additional indicators suggesting disability (behavioral, psychological, or medical), do not trigger Child Find. This clarification will influence districts within the Fifth Circuit (Texas, Louisiana, Mississippi) confronting post-pandemic attendance issues.

Weight of Teacher Observations vs. Incomplete Private Evaluations

The court reaffirmed the centrality of classroom-based data and teacher observations. Private evaluations that omit teacher input, ignore classroom performance, or fail to engage with attendance and instructional access will carry limited weight. For parents seeking to rely on private assessments, ensuring alignment with IDEA evaluation parameters—including teacher input and classroom observations—is critical.

Attendance as “Lack of Appropriate Instruction”

The court’s use of 34 C.F.R. § 300.306(b)(1) in the attendance context is significant. It confirms that when absences prevent a student from receiving instruction, poor performance may reflect a lack of appropriate instruction rather than a disability. That does not authorize districts to ignore attendance when it may be symptomatic of disability; rather, it differentiates between absences as a cause of missed instruction and absences that signal an underlying condition. Where absences are linked to known or suspected disability, Child Find is triggered.

Parental Cooperation Matters

Parents’ refusal to consent to a district evaluation was pivotal. IDEA requires parental consent to evaluate, and refusal can limit relief. The court’s analysis implies that cooperation with district evaluation procedures, participation in meetings, and consideration of reasonable placement and intervention recommendations can be outcome-determinative.

COVID-Era and Advanced Placement Context

The facts include pandemic-era remote learning and parental insistence on advanced coursework. The opinion signals that academic failure in courses exceeding a student’s demonstrated readiness, coupled with absences, does not itself trigger Child Find. District recommendations for on-level placement or alternative support programs (like ACE) are relevant evidence of reasonable educational responses.

Guidance for Stakeholders

• For districts: Document attendance, reasons provided, interventions offered, and teacher observations; escalate when absences coexist with behavioral/medical indicators; promptly propose evaluations when parents express disability concerns; comply with IDEA evaluation procedures; and memorialize parental refusals or non-participation.
• For parents: If disability is suspected, inform the district early and consent to a comprehensive evaluation; ensure private evaluations include teacher input and classroom observations; attend meetings; consider district placement and intervention recommendations; and address attendance barriers, especially if they may reflect health or mental health concerns.

Complex Concepts Simplified

• IDEA (Individuals with Disabilities Education Act): Federal law requiring public schools to provide eligible students with disabilities a free appropriate public education (FAPE) tailored through an Individualized Education Program (IEP).
• FAPE: Special education and related services provided at public expense and in conformity with an IEP designed to confer meaningful educational benefit in light of the child’s circumstances.
• Child Find: A proactive duty requiring schools to identify, locate, and evaluate all children with disabilities who need special education. It triggers when the district knows or should know of facts suggesting a likely disability.
• Eligibility (two-prong test): The student must (1) have a qualifying disability and (2) need special education and related services by reason of that disability.
• “Lack of appropriate instruction” bar (34 C.F.R. § 300.306(b)(1)): A student cannot be found eligible if the determinant factor behind poor achievement is inadequate instruction in reading or math. In this case, chronic absences meant the student did not receive the instruction necessary to attribute poor performance to a disability.
• Evaluation requirements: IDEA requires a full and individual evaluation covering all areas of suspected disability, including appropriate health screenings, classroom-based observations, and teacher reports, not just standardized testing.
• Procedural vs. substantive violations: Procedural errors (like delayed evaluation) violate IDEA only if they cause substantive harm—typically a loss of educational opportunity. If the student is not eligible or the parents refuse evaluation, proving harm is difficult.
• Standard of review: Appellate courts review mixed questions of law and fact de novo, but they defer to the district court’s factual findings unless clearly erroneous.

Conclusion

A.P. v. Pearland ISD sharpens two boundaries within Fifth Circuit IDEA jurisprudence. First, chronic absenteeism and poor grades, without coexisting behavioral, medical, or psychological indicators, do not in themselves trigger the district’s Child Find duty. Second, where absences cause a lack of appropriate instruction, 34 C.F.R. § 300.306(b)(1) can foreclose an eligibility finding because poor achievement is not attributable to a qualifying disability.

The decision reinforces the importance of classroom-based evidence and teacher observations, cautions against overreliance on private evaluations that omit critical IDEA-required components, and underscores the practical necessity of parental cooperation. While districts must remain vigilant when attendance patterns may reflect disability, this opinion provides needed clarity: absenteeism itself is not a proxy for suspected disability, and IDEA does not compel identification when the core problem is missed instruction rather than impaired capacity to benefit from it.

Ultimately, the Fifth Circuit’s affirmation aligns Child Find triggers and eligibility determinations with the statute’s text and regulations, promoting careful, context-specific analysis grounded in the student’s actual access to instruction and observable performance in school.

Note: This commentary is for informational purposes and does not constitute legal advice.