N.W. v. Dist. of Columbia

• Decision Date: 15 May 2017
• Docket Number: Civil Action No.: 16-0573 (RC).
• Parties: N.W., et al., Plaintiffs, v. The DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

253 F.Supp.3d 5

N.W.,¹ et al., Plaintiffs,

v.The DISTRICT OF COLUMBIA, Defendant.

Civil Action No.: 16-0573 (RC).

United States District Court, District of Columbia.

Signed May 15, 2017

Michael J. Eig, Michael J. Eig & Associates, PC, Chevy Chase, MD, for Plaintiffs.

Aaron Josiah Finkhousen, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING AS MOOT PLAINTIFFS' MOTION TO PLACE CASE IN ABEYANCE; DENYING PARTIES' MOTION FOR SUPPLEMENTAL BRIEFING; DENYING PLAINTIFFS' MOTION FOR SUPPLEMENTAL BRIEFING

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

J.W., a student, and his parents² (Plaintiffs) filed this action against the District of Columbia (the District) challenging a hearing officer's determination that J.W. was not denied a free and appropriate public education (FAPE) pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq. Both parties filed cross-motions for summary judgment. The Court agrees that J.W. was denied a FAPE because his IEP contained insufficient specialized instruction and the District did not identify a school capable of implementing the IEP. However, the Court rejects Plaintiffs' other arguments and will thus grant in part and deny in part Plaintiffs' and the District's motions.

II. BACKGROUND

A. Statutory Framework

The IDEA provides that "every child with a disability in this country is entitled to a ‘free appropriate public education,’ or FAPE." Leggett v. District of Columbia , 793 F.3d 59, 62 (D.C. Cir. 2015) (quoting 20 U.S.C. § 1400(d)(1)(A) ). "A free appropriate public education entitles ‘each child with a disability’ to an ‘individualized education program’ that is tailored to meet his or her unique needs." Henry v. District of Columbia , 750 F.Supp.2d 94, 96 (D.D.C. 2010) (quoting 20 U.S.C. § 1414(d)(1)(A)–(2)(A) ).

An individualized educational program (IEP) is the "primary vehicle" for implementing the IDEA. Lesesne ex rel. B.F. v. District of Columbia , 447 F.3d 828, 830 (D.C. Cir. 2006) (quoting Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ). The public school district develops the IEP in collaboration with the student's teachers and parents. Id. The IEP "sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." Id. (quoting Honig , 484 U.S. at 311, 108 S.Ct. 592 ). When parents disagree with the school district and believe that the IEP does not provide their child with a FAPE, they first challenge the IEP through an "impartial due process hearing" in front of a hearing officer. 20 U.S.C. § 1415(f). The hearing officer has access to a variety of remedies. If the parents or the District disagree with the outcome of the due process hearing, either may appeal the determination to state or federal court. See id. § 1415(i)(2).

B. Factual Background

J.W. is a student residing in the District of Columbia who has been diagnosed with Autism Spectrum Disorder and Specific Learning Disorders in reading, math, and writing, as well as learning delays in speech. Compl. ¶ 6, ECF No. 15-1; Administrative Record (AR) 217.³ During kindergarten and first grade, J.W. attended Key Elementary School, a public school run by the District. AR 204–05. The District recognized that J.W. was eligible for services under the IDEA, and developed an IEP for him. During these years, Plaintiffs became concerned that the District was not providing J.W. with adequate services and eventually rejected the District's proposed May 2014 IEP "because it [was] based on inadequate information and [was] not sufficient to meet [J.W.'s] needs." AR 282.

For the 2014–2015 school year—or J.W.'s second grade—Plaintiffs placed J.W. at Katherine Thomas School (KTS), a private school offering special education services. See AR 427, 1109. During that year the District continued to revise J.W.'s IEP and issued revised IEPs in June and September of 2014.⁴ Plaintiffs challenged the three 2014 IEPs in a due process hearing held in April and May of 2015. AR 611–24. The hearing officer rejected two of Plaintiffs' objections: first, that the IEPs improperly referred to J.W.'s Autism Spectrum Disorder but not his other learning disabilities, AR 618–19; and second, that J.W. was placed at a public school, AR 621–22. However, the hearing officer did conclude that the 2014 IEPs denied J.W. a FAPE because they "lack[ed] a sufficient type and amount of specialized instruction to meet the student's identified needs." AR 620. As a result, the hearing officer ordered the District to reimburse Plaintiffs for J.W.'s KTS tuition during the 2014–2015 school year, and ordered the District to create a new IEP for J.W. providing him with "full time special education services." AR 622.

The District continued to engage in the IEP process, resulting in the July 2015 IEP at issue here. That IEP called for 24.5 hours per week of "specialized instruction" and an additional 4 hours a month each of instruction in speech–language pathology, behavioral support services, and occupational therapy. AR 649. The setting for all of these services was "[o]utside [g]eneral [e]ducation." AR 649. The IEP did not provide for any instruction or specialized supports during lunch or recess, see AR 649, 1120, although the District told the Plaintiffs during the IEP meeting that it would provide supports during lunch and recess regardless of the text of the IEP, AR 960, 1120. About a week after the IEP was completed, the District informed Plaintiffs that they could select between two public schools operated by the District as the location of services for J.W.—Hearst Elementary School and Barnard Elementary School. AR 676.

Plaintiffs investigated the programs at Hearst and Barnard⁵ and identified problems with each. Plaintiffs learned that neither school offered "self-contained specials." AR 740, 1125–26. A "special" is non-academic instructional time such as music or physical education, AR 1162, and a "self-contained" class is one with only special education students, usually a small group. At Barnard, instead of self-contained specials, all special education students attend their specials with general education students and receive additional support during the specials. AR 740. Barnard offered to provide J.W. with specials either in with the general education population and supports, or alone.⁶ AR 1249.

Plaintiffs challenged the appropriateness of the 2015 IEP through a second due process hearing. AR 681–85. The hearing officer concluded that the District did not deny J.W. a FAPE, and rejected Plaintiffs' arguments concerning (1) the lack of supports during lunch and recess in the IEP, (2) the lack of self-contained specials at either school, (3) the District's failure to propose specific placement schools at the IEP meeting and (4) the exclusion of Plaintiffs' educational advocate from touring Hearst. AR 4–14. Plaintiffs appealed each of these determinations to this Court, and both parties moved for summary judgment.⁷ See generally Pl.'s Mot. Summ. J. (Pl.'s Mot.), ECF No. 16-1, Dist.'s Opp'n & Cross Mot. Summ. J. (Dist.'s Mot.), ECF No. 18.⁸

III. LEGAL STANDARD

The IDEA provides that a court reviewing a due process hearing "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C) ; see also 34 C.F.R. § 300.516(c). During the district court's review of the due process hearing, "[a] motion for summary judgment operates as a motion for judgment based on the evidence comprising the record and any additional evidence the Court may receive." D.R. ex rel. Robinson v. District of Columbia , 637 F.Supp.2d 11, 16 (D.D.C. 2009). "Where, as here, neither party submits additional evidence for the court's review, ‘the motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record.’ " Q.C – C. v. District of Columbia , 164 F.Supp.3d 35, 44 (D.D.C. 2016) (quoting Heather S. v. Wisconsin , 125 F.3d 1045, 1052 (7th Cir. 1997) ). This procedure is akin to "a bench trial based on a stipulated record." L.R.L. ex rel. Lomax v. District of Columbia , 896 F.Supp.2d 69, 73 (D.D.C. 2012) (internal citation omitted).

Because the district court may hear additional evidence and decides at the preponderance of the evidence standard, the D.C. Circuit has held that "less deference than is conventional in administrative proceedings" is appropriate. Reid ex rel. Reid v. District of Columbia , 401 F.3d 516, 521 (D.C. Cir. 2005) (internal quotation marks and citation omitted). However, the court must afford "due weight" to the administrative proceeding and avoid "substitut[ing] [its] own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. , Westchester County v. Rowley , 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

IV. ANALYSIS

Plaintiffs appeal each of the hearing officer's four determinations, which concluded that the District did not fail to provide a FAPE by: (1) issuing an IEP containing insufficient specialized instruction, especially at lunch and recess, (2) failing to identify any schools capable of implementing J.W.'s IEP, (3) waiting a week after the IEP meeting to identify a location for services, and (4) excluding J.W.'s educational advocate from Hearst. The Court considers each issue in turn, after first considering...