Reid ex rel. Reid v. District of Columbia

• Citation: 401 F.3d 516
• Decision Date: 25 March 2005
• Docket Number: No. 04-7051.,04-7051.
• Parties: Gwendolyn REID, as mother and next friend of Mathew Reid, a minor, Appellant v. DISTRICT OF COLUMBIA, a Municipal Corporation, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 516

401 F.3d 516

Gwendolyn REID, as mother and next friend of Mathew Reid, a minor, Appellant v. DISTRICT OF COLUMBIA, a Municipal Corporation, Appellee

No. 04-7051.

United States Court of Appeals, District of Columbia Circuit.

Argued February 10, 2005.

Decided March 25, 2005.

Keith A. Noreika argued the cause for appellant. With him on the briefs were Carolyn F. Corwin, Jennifer E. Schwartz, and Robert I. Berlow.

Mary T. Connelly, Assistant Attorney General, Office of Attorney General for the District of Columbia, argued the cause for appellee. With her on the brief were Robert J. Spagnoletti, Attorney General, and Edward E. Schwab, Deputy Attorney General.

Before: SENTELLE, HENDERSON, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge.

When a school district deprives a disabled child of free appropriate public education in violation of the Individuals with Disabilities Education Act, a court fashioning "appropriate" relief, as the statute allows, may order compensatory education, i.e., replacement of educational services the child should have received in the first place. This commonsense proposition — conceded by the school district here and supported by the Supreme Court's decision compelling reimbursement for such services in School Committee of the Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) — led a hearing officer to award appellant, a sixteen-year-old with severe learning disabilities, 810 hours of compensatory education, one hour for each day in the four-and-a-half years during which the school system denied the student appropriate instruction. Pointing out that neither reasoning nor evidence supported this hour-per-day calculation and insisting that hour-per-hour relief was instead the child's due, the child and his mother argue that the hearing officer abused his authority. They also challenge the officer's decision to allow the child's "individualized education program team" to reduce or discontinue compensatory services "on the decision of the IEP team that Minor no longer needs or is not benefitting from this compensatory education." Because we agree that the hearing officer's mechanical calculation merits no deference and that the IEP team delegation violates the statute, we reverse the district court's grant of summary judgment to the school district. We reject, however, appellants' equally mechanical hour-per-hour calculation and instead adopt a qualitative standard: compensatory awards should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.

I.

Under the Individuals with Disabilities Education Act (known as "IDEA"), states and territories, including the District of Columbia, that receive federal educational assistance must establish "policies and procedures to ensure," among other things, that "free appropriate public education," or "FAPE," is available to disabled children. See 20 U.S.C. § 1412(a)(1)(A). Premised on Congress's expectation that "[w]ith proper education services, many [disabled individuals] would be able to become productive citizens, contributing to society instead of being forced to remain burdens," S.Rep. No. 94-168, at 9 (1975) (discussing predecessor to IDEA), this requirement furthers "our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities," 20 U.S.C. § 1400(c)(1). School districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction. Instead, school systems must ensure that "[a]ll children with disabilities residing in the State . . . regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated." Id. § 1412(a)(3)(A). Once such children are identified, a "team" including the child's parents and select teachers, as well as a representative of the local educational agency with knowledge about the school's resources and curriculum, develops an "individualized education program," or "IEP," for the child. See id. §§ 1412(a)(4), 1414(d). Pursuant to the Supreme Court's decision in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the IEP must, at a minimum, "provid[e] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See id. at 203, 102 S.Ct. 3034. In addition, "if the child is being educated in the regular classrooms of the public education system, [the IEP] should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Id. at 204, 102 S.Ct. 3034. "If no suitable public school is available, the [school system] must pay the costs of sending the child to an appropriate private school." Jenkins v. Squillacote, 935 F.2d 303, 305 (D.C.Cir.1991).

In this case, as two successive administrative hearings established and as the District of Columbia, appellee herein, now concedes, the District of Columbia Public Schools ("DCPS") failed to meet its IDEA obligations with respect to appellant Mathew Reid. A sixteen-year-old District of Columbia resident, Mathew suffers from documented learning disabilities, including dyslexia and attention deficit hyperactivity disorder, that affect his short-term auditory memory, formation of grammatical sentences, and articulation of word sounds. Though Mathew's mother had noticed by the fall of her son's second-grade year that he had difficulty reading, when she contacted a school district counselor, the counselor refused to provide the necessary form for requesting a disability evaluation. The following spring, during a meeting with Mathew's teacher and school principal, the teacher recommended that Mathew be retained in second grade due to behavioral and academic problems. According to Ms. Reid, however, the principal told her that "she didn't believe that Matthew really needed to be kept back."

Mathew spent the next year in California and then returned to D.C. By that time, test scores placed him in the bottom one percent of his age group for reading comprehension and the bottom five percent for reading overall. Nonetheless, without performing any disability evaluation, the school district placed Mathew in a regular fourth-grade class. Only after a full school year of unsatisfactory grades did DCPS recognize Mathew's disability and develop an IEP.

Under this IEP, Mathew was retained in fourth grade and attended ten hours per week of special education instruction plus twice-weekly half-hour language therapy sessions and one half hour per week of counseling. In accordance with IDEA's preference for avoiding separate instruction "[t]o the maximum extent possible," see 20 U.S.C. § 1412(a)(5), Mathew spent the remainder of the school day mainstreamed in regular classes, but received accommodations such as preferential seating and extended time for assignments. Two years later, DCPS revised Mathew's IEP to provide seventeen-and-a-half hours of special education services per week. Despite these services, testing in November of Mathew's sixth-grade year revealed him reading at a second-grade level, even though six months earlier he had been reading at a third-grade level. Mathew's overall intellectual ability placed him in the ninth percentile for his age.

Despite further testing confirming these results, Mathew's IEP team made no change in his program until April of that school year. At that point, presumably because Mathew's math skills had risen from low fourth-grade level to low sixth-grade level (though at the time Mathew was entering seventh grade and was old enough to be entering eighth), the team eliminated 250 minutes per week of math tutoring while adding 200 minutes per week of reading instruction and fifteen extra minutes per week of counseling.

Objecting to this new IEP, Mathew's mother exercised her statutory right to demand an "impartial due process hearing," see 20 U.S.C. §§ 1415(b)(6), (e)(1), (f)(1). She argued that "the IEP is inappropriate because Mathew requires a full-time special education program and the IEP calls for a part time special education program." The hearing officer agreed. Based on "the student's serious and extensive needs and the glaring inappropriateness of the IEP in terms of placing Mathew in a part-time program when he requires a full-time program," the officer ordered the school district to place Mathew in "a full-time special education program with a low student teacher ratio and intensive work in reading with the other related services," designating one such program, the Accotink Academy, as Mathew's placement "at least on an interim basis." "This is a student who is capable of doing better," the hearing officer wrote, "and as he approaches adolescence, the likelihood of his remaining interested in staying in school will decrease if his reading level stays at a second grade level."

To make up for deficiencies in Mathew's prior education, Ms. Reid also sought extra instruction beyond his Accotink Academy IEP — in other words, "compensatory education." In separate proceedings related to that claim, a second hearing officer heard expert testimony indicating, among other things, that in struggling to read, Mathew had "learned compensatory strategies that are counterproductive," that "there was a gap in between what [Mathew] was capable of, and actually what he was performing," and that because of academic and interpersonal difficulties, Mathew had grown "significantly depressed." Three experts — a psychologist, a speech language pathologist/audiologist, and...