Pierre-Noel v. Bridges Pub. Charter Sch.

• Decision Date: 06 April 2023
• Docket Number: 1:23-cv-00070 (TNM)
• Parties: MARGDA PIERRE-NOEL, on behalf of her minor child K.N., Plaintiff, v. BRIDGES PUBLIC CHARTER SCHOOL, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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MARGDA PIERRE-NOEL, on behalf of her minor child K.N., Plaintiff,
v.
BRIDGES PUBLIC CHARTER SCHOOL, et al., Defendants.

No. 1:23-cv-00070 (TNM)

United States District Court, District of Columbia

April 6, 2023

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

This case is about who must ensure that a disabled child reaches his school bus. Margda Pierre-Noel sued Bridges Public Charter School and the District of Columbia under the Individuals with Disabilities Education Act (“IDEA”) for failing to provide a free and appropriate public education and related services for her minor son, K.N. Pierre-Noel seeks review of a hearing officer's decision that she is responsible for getting K.N. to and from the school bus. She also seeks an order that his school denied him a free and appropriate public education under the IDEA for failing to provide in-person support while he learned from home and for failing to provide an in-school nurse. The school agrees with certain aspects of the hearing officer's decision, but disagrees with others-including that it failed to provide an appropriate education. The District agrees with the hearing officer's decision that it need not carry K.N. to the school bus.

Before the Court are cross-motions for summary judgment from Pierre-Noel, the school, and the District. The Court will grant the District summary judgment on the transportation claim because it finds that the IDEA does not mandate the service Pierre-Noel seeks. But the Court

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will grant Pierre-Noel summary judgment on her free and appropriate public education claim because the school did not plan adequate support for K.N. to learn from home. Finally, the Court will grant the school's motion as to the issue of failing to have a nurse present in school because K.N. was learning from home at the time. Also, Pierre-Noel has not shown injury or redressability on this claim. In sum, the Court will grant the District's motion in full, and it will grant in part and deny in part the other two motions.

I.

A.

The IDEA offers states and the District of Columbia federal funding to provide a “free appropriate public education” (“FAPE”) to disabled children. 20 U.S.C. § 1412(a)(1)(A). A FAPE includes both “special education and related services.” Id. § 1401(9). “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability,” and “related services” are those “required to assist a child . . . to benefit from” that instruction. Id. § 1401(26), (29). The IDEA defines “related services” as

transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation [and] counseling services, including rehabilitation counseling, orientation and mobility services . . . as may be required to assist a child with a disability to benefit from special education[.]

Id. § 1401(26)(A).

The meaning of “transportation” is key to this case. The Act's implementing regulations note that “transportation” “includes travel to and from school and between schools” and “specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability.” 34 C.F.R. § 300.34(c)(16).

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To ensure that a child receives a FAPE, special education and related services must be provided “in conformity with the [child's] individualized education program,” or IEP. 20 U.S.C. § 1401(9)(D). An IEP is the “centerpiece of the statute's education delivery system[.]” Honig v. Doe, 484 U.S. 305, 311 (1988). “It is through the IEP that the free appropriate public education required by the Act is tailored to the unique needs of a particular child.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 401 (2017) (cleaned up). The IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Id. at 399. A team of interested individuals-including the child's parents and teachers-draft his IEP. See 20 U.S.C. § 1412(a)(4), 1414(d). Each IEP must describe the “special education and related services . . . that will be provided” to help the child “advance appropriately.” Id. § 1414(d)(1).

The IDEA provides that “[t]o the maximum extent appropriate[,]” disabled children should be “educated with children who are not disabled.” Id. § 1412(a)(5). This means that removal from the “regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Id. To further this statutory instruction, IEPs specify a child's “least restrictive environment”-the location and services a student should receive. Id.; see also 34 C.F.R. §§ 300.114(a), 300.115-16.

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B.

K.N. is a first grader eligible for special education and related services under the IDEA. See Administrative Record (“AR”) at 1537.^[1]He is medically fragile, non-verbal, wheelchair bound, and weighs about 40 pounds. See id. at 1444, 1533.

During the COVID-19 pandemic, K.N. worked virtually with a special education teacher. See id. at 738; see also Hr'g Tr. at 55. Pierre-Noel provided the at-home support he needed to learn. See AR at 723, 1530. As the 2022 school year drew to a close, Pierre-Noel and school staff convened in May to discuss his IEP. See id. at 722-37. All agreed that K.N. could return to school in person in September 2022. See id. at 13, 332. At that time, he would “resume 22.5 hours of specialized instruction hours . . . outside of the general education setting with a dedicated nurse aide” inside the school building. Id. at 738. The May IEP included a contingency provision: “[i]f [K.N.] is required to remain home for an extended period due to medical needs, [he] will receive homebound instruction and the team will develop a plan for continuation of services.” Id. The IEP also states that no nurse aide will be provided if K.N. attends virtually. See id.

The transportation section of K.N.'s May IEP explains that he requires a single transport bus and a nurse on the bus. See id. at 744. K.N.'s apartment building is not handicap-accessible, so getting him to the bus involves traversing 14 to 20 steps. See id. at 1571; 1645.^[2] Pierre-Noel

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suffers from a medical condition that prevents her from carrying K.N. and his wheelchair down the steps. See id. at 1645. While her husband sometimes carries K.N. out of the apartment, he is only available on Thursdays and Fridays. See id. at 1573. So she asked for a dedicated aide to assist K.N. from the threshold of the apartment to the bus and vice versa. See id. at 1115. According to Pierre-Noel, the aide must place K.N.'s wheelchair at the bottom of a staircase, hoist K.N. over a shoulder, and walk up and down the steps. See id. at 1573, 1645. In the past, home care nurses had done this, but K.N. is now too heavy for them. See id. at 1533.^[3]

The school contacted the District, which transports disabled students.^[4] See id. at 1473. Its Special Education Transportation Policy notes that the District “shall provide special education transportation services to students with disabilities when transportation is appropriately identified and documented on an IEP as a related service under the IDEA.” Id. at 1039. That policy specifies that District personnel “will utilize lifts, ramps, or other mechanized equipment to assist students with wheelchairs.” Id. at 1045. But it explains that the District is “not responsible for providing physical assistance to student passengers other than providing occasional non-intrusive assistance that does not require lifting or carrying the student.” Id. If the District determines that it cannot transport a child, the transportation policy instructs the

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school to reconvene the IEP team. See id. In the meantime, the school is “responsible for providing alternative instructional options.” Id.

After the school reached out, a District investigator visited Pierre-Noel at her apartment in July 2022. See id. at 1128. He inspected the building and stairs and told her that District employees are not permitted to enter the apartment building or lift and carry K.N. See id.

Undeterred, Pierre-Noel and the school amended K.N.'s IEP the next day to mandate those precise services. See IEP at 24, ECF No. 4-3. K.N.'s July IEP thus states that he “requires assistance to get from his apartment unit door to the bus and from the bus to his apartment unit door. This assistance includes being carried up and down stairs inside the apartment building as well as outside the apartment building.” Id. The school included this language in the IEP to “test whether [the District's] refusal to provide the support was legally sound.” Bridges Cross-Mot. for Summ. J. and Opp'n to Pl.'s Mot. for Summ. J. (School MSJ) at 14, ECF No. 25; see also AR P-2 at 24:00-24:16 (asking parent for information about transportation to see “what we can do with the IEP to try to push [the District]”).

K.N. was set to resume in-person class on September 20, 2022. See AR at 1507. And the school retained a dedicated nurse for him to begin that same day. See id. at 1568-69; see also Hr'g Tr. at 60. But the District maintained that it could not transport K.N. because of the carrying and lifting required. See AR at 621. Rather, it “can only escort a student from/to the outermost door of a house or building.” Id. It is undisputed that K.N. could not get to school on September 20. See, e.g., Id. at 1538. That same day, K.N.'s in-school nurse abruptly quit. See id. at 1568-69; see also Hr'g Tr. at 60. So the school found another nurse by October 4. See AR at 960, 1541; see also Hr'g Tr. at 60-61. But because K.N. still could not get to school...