United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2005 Decided March 25, 2005
Reissued May 9, 2005
No. 04-7051
GWENDOLYN REID, AS MOTHER AND NEXT FRIEND OF
MATHEW REID, A MINOR,
APPELLANT
v.
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01611)
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
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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 (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
3
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 (1982), the IEP
must, at a minimum, “provid[e] personalized instruction with
sufficient support services to permit the child to benefit
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educationally from that instruction.” See id. at 203. 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. “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
5
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
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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 an educational consultant—all
testified that the school district should have known Mathew was
disabled in second grade or earlier. Based on this evidence, and
building on the earlier hearing, the hearing officer concluded
that DCPS had denied Mathew FAPE for roughly four-and-a-
half years, from midway through second grade until the
Accotink placement at the end of sixth grade (skipping
Mathew’s year in California and counting both fourth-grade
years).
As a remedy, the officer ordered 810 hours of compensatory
education, a figure he derived by awarding “1 hour for each day
of special education services not provided.” Indicating neither
why he chose this formula nor what specific services should be
7
provided, the officer empowered Mathew’s IEP team to
“direct[]” implementation of the award. “The services are to be
reduced or discontinued,” he added, “on the decision of the IEP
team that Minor no longer needs or is not benefitting from this
compensatory education. The team’s decision that Mathew no
longer needs or is not benefitting from this award of
compensatory education services will terminate this award. The
team decision and reasoning in this regard are to be fully
explained in the IEP meeting notes.”
Under IDEA, parties aggrieved by an administrative
decision may sue in either state or federal court. See 20 U.S.C.
§ 1415(i)(2)(A). The court then “(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.” See id. § 1415(i)(2)(B).
Seeking such review in the U.S. District Court for the District of
Columbia, Mathew and his mother challenged both the number
of hours awarded as compensatory instruction and the allowance
for reduction or termination by the IEP team. On cross-motions
for summary judgment, the district court rejected the Reids’ two
claims (as well as a third argument not renewed here) and
affirmed the administrative award. See Reid v. District of
Columbia, 310 F. Supp. 2d 137 (D.D.C. 2004). The Reids now
appeal.
II.
We begin with our standard of review. Though conceding
that judicial review under IDEA is more rigorous than in typical
agency cases, the school district argues that both our review of
the district court and the district court’s review of the hearing
officer should be deferential. We disagree on both counts.
To start with the standard applicable in the district court, it
is true that under our precedent “a party challenging the
8
administrative determination must at least take on the burden of
persuading the court that the hearing officer was wrong, and that
a court upsetting the officer’s decision must at least explain its
basis for doing so.” See Kerkam v. McKenzie, 862 F.2d 884,
887 (D.C. Cir. 1989) (“Kerkam I”). But we have also made
clear that given the district court’s authority to “hear additional
evidence at the request of a party” and “bas[e] its decision on the
preponderance of the evidence,” see 20 U.S.C. §§
1415(i)(2)(B)(ii), (iii), IDEA “plainly suggest[s] less deference
than is conventional” in administrative proceedings. See
Kerka m I, 862 F.2d at 887. Moreover, a hearing decision
“without reasoned and specific findings deserves little
deference.” See Kerkam v. Superintendent, D.C. Pub. Schs., 931
F.2d 84, 87 (D.C. Cir. 1991) (“Kerkam II”) (internal quotation
marks omitted).
In this case, although the hearing officer made express
findings regarding DCPS’s four-and-a-half-year denial of FAPE,
he set forth the 810-hour award in a one-sentence ipse dixit. “At
rate of 1 hour for each day of special education services not
provided,” he wrote, “DCPS is to provide 810 hours (4.5
multiplied by 180 school days) of compensatory education
services to Mathew as his IEP team directs.” The officer’s order
contains neither reasoning to support this hour-per-day formula
nor factual findings showing that the 810-hour result satisfied
Mathew’s needs. Accordingly, the district court, obligated by
IDEA to ensure that relief set forth in the administrative award
was “appropriate,” could not simply rely on the hearing officer’s
exercise of discretion. Instead, the court had to examine the
record itself. Nor, regarding the other issue in this case, could
the court defer to the officer’s decision to delegate authority to
the IEP team, for the officer’s implicit ruling on that issue—that
IDEA permits such delegations—raises an issue of statutory
construction, a pure question of law that courts review de novo.
Thus, on neither issue in this appeal could the district court
presume the validity of the hearing officer’s action.
9
We reach a similar conclusion regarding the standard
governing our review of the district court’s decision. As noted
above, trial judges in IDEA cases may “hear additional
evidence” and fashion “appropriate relief.” See 20 U.S.C. §§
1415(i)(2)(B)(ii), (iii). These powers of fact-finding and
remedy-crafting, the Supreme Court has explained, entail “broad
discretion” and implicate “equitable considerations.” See
Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16
(1993) (internal quotation marks omitted). Thus, had the district
court actually exercised those powers, our review would be
deferential—clear error as to any factual findings and abuse of
discretion as to the remedy. See Patricia P. v. Bd. of Educ. of
Oak Park, 203 F.3d 462, 466-67 (7th Cir. 2000) (fact-finding);
Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d
1489, 1497 (9th Cir. 1994) (remedial discretion). In this case,
however, the district court granted summary judgment based
simply on the administrative record. Applying the familiar Rule
56 standard, the court took no additional evidence, but viewed
the record in the light most favorable to plaintiffs and concluded
that the administrative award was appropriate. See Reid, 310 F.
Supp. 2d at 144-45, 153 (applying standard of review based on
Fed. R. Civ. P. 56). On appeal, therefore, we find ourselves in
exactly the same position as the district court. Accordingly, we
review its decision de novo as in an ordinary summary judgment
case, see, e.g., Maydak v. United States, 363 F.3d 512, 515 (D.C.
Cir. 2004), and apply the same non-deferential standard the
district court should have applied to the hearing decision.
With these principles in mind, we turn to the disputed
issues: the compensatory education amount and the IEP team
delegation.
Compensatory Award
Under the theory of “compensatory education,” courts and
hearing officers may award “educational services . . . to be
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provided prospectively to compensate for a past deficient
program.” See G. ex rel. RG v. Fort Bragg Dependent Schs.,
343 F.3d 295, 308 (4th Cir. 2003). Embraced in some form by
several circuits, see, e.g., id. at 308-09; Ridgewood Bd. of Educ.
v. N.E. ex rel. M.E., 172 F.3d 238, 249 (3d Cir. 1999); Bd. of
Educ. of Oak Park & River Forest High Sch. Dist. 200 v. Ill.
State Bd. of Educ., 79 F.3d 654, 656 (7th Cir. 1996); Parents of
Student W., 31 F.3d at 1496; Pihl v. Mass. Dep’t of Educ., 9 F.3d
184, 188-89 (1st Cir. 1993); Miener v. Missouri, 800 F.2d 749,
753 (8th Cir. 1986); see also Diatta v. District of Columbia, 319
F. Supp. 2d 57, 65 (D.D.C. 2004), this theory builds on the
Supreme Court’s holding in Burlington that “appropriate” IDEA
relief may include reimbursement for parents who place children
in private school rather than accept a deficient public school
IEP, see 471 U.S. at 369. If IDEA permits reimbursement for
educational services, courts have reasoned, then it must also
allow awards of the services themselves. See, e.g., Bd. of Educ.
of Oak Park & River Forest High Sch., 79 F.3d at 655-56; Pihl,
9 F.3d at 188-89; Miener, 800 F.2d at 753. Based on such logic,
courts have upheld awards requiring, among other things,
special programs to make up for prior deficiencies, see, e.g.,
Diatta, 319 F. Supp. 2d at 65; Westendorp v. Indep. Sch. Dist.
No. 273, 35 F. Supp. 2d 1134, 1135-36, 1137 (D. Minn. 1998);
cf. G. ex rel. RG, 343 F.3d at 299, 309 (remanding claim of
eleven-year-old), and instruction beyond age twenty-one
(ordinarily the limit of IDEA coverage, see 20 U.S.C. §
1412(a)(1)(A)), see, e.g., Ridgewood Bd. of Educ., 172 F.3d at
249; Pihl, 9 F.3d at 189-90.
In our view, this extension of Burlington to cover services
as well as payments makes eminent sense. Given the
availability of reimbursement for compensatory instruction,
were it impossible to obtain an award of the instruction itself,
children’s access to appropriate education could depend on their
parents’ capacity to front its costs—a result manifestly
incompatible with IDEA’s purpose of “ensur[ing] that all
11
children with disabilities have available to them a free
appropriate public education,” 20 U.S.C. § 1400(d)(1)(A)
(emphasis added). Even worse, students who remained in public
school would lack any effective redress for FAPE denials, even
those extending over many years, as in Mathew’s case. To be
sure, such students could seek prospective correction of a
deficient IEP, as the Reids did in the first administrative
proceeding described above. But because the Rowley standard
requires only that schools provide “some educational benefit,”
see Rowley, 458 U.S. at 200—a standard that looks to the child’s
present abilities—an IEP conforming to that standard carries no
guarantee of undoing damage done by prior violations. As this
case demonstrates, moreover, that damage may be quite severe:
according to expert testimony, Mathew not only failed to keep
pace with his peers under the school district’s IEP, but actually
learned “counterproductive” compensatory techniques that he
must now unlearn before he can advance. Consistent with
Congress’s stated aim of “ensur[ing] that the rights of children
with disabilities and parents of such children are protected,” see
20 U.S.C. § 1400(d)(1)(B), we therefore join our sister circuits
and hold that compensatory education awards fit comfortably
within the “broad discretion” of courts fashioning and enforcing
IDEA remedies, see Carter, 510 U.S. at 15-16.
That said, we part company with the Reids regarding how
such awards are calculated. They urge us to adopt a
presumption that each hour without FAPE entitles the student to
one hour of compensatory instruction, a standard apparently
embraced by several courts. See, e.g., M.C. v. Cent. Reg’l Sch.
Dist., 81 F.3d 389, 391-92, 396-97 (3d Cir. 1996) (holding that
when “a school district . . . knows or should know” that a
disabled child’s educational program is deficient yet fails to
correct the problem, the child “is entitled to compensatory
education for a period equal to the period of deprivation, but
excluding the time reasonably required for the school district to
rectify the problem”); Westendorp, 35 F. Supp. 2d at 1137
12
(holding that “where [plaintiff] was denied his IDEA rights for
six academic years, the court will presume that he is entitled to
six academic years of compensatory relief”). In our view, this
cookie-cutter approach runs counter to both the “broad
discretion” afforded by IDEA’s remedial provision and the
substantive FAPE standard that provision is meant to enforce.
As to the remedial provision, the Supreme Court has
emphasized that IDEA relief depends on “equitable
considerations.” See Carter, 510 U.S. at 15-16; Burlington, 471
U.S. at 374. Accordingly, “compensatory education is not a
contractual remedy, but an equitable remedy, part of the court’s
resources in crafting ‘appropriate relief.’” Parents of Student
W., 31 F.3d at 1497. More specifically, as the Fourth Circuit has
explained, “[c]ompensatory education involves discretionary,
prospective, injunctive relief crafted by a court to remedy what
might be termed an educational deficit created by an educational
agency’s failure over a given period of time to provide a FAPE
to a student.” G. ex rel. RG, 343 F.3d at 309. Overlooking this
equitable focus, the Reids’ hour-for-hour formula in effect treats
compensatory education as a form of damages—a charge on
school districts equal to expenditures they should have made
previously. Yet “[t]he essence of equity jurisdiction” is “to do
equity and to mould each decree to the necessities of the
particular case. Flexibility rather than rigidity has distinguished
it.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). In keeping
with that principle of case-specific flexibility, we agree with the
Ninth Circuit that “[t]here is no obligation to provide a day-for-
day compensation for time missed. Appropriate relief is relief
designed to ensure that the student is appropriately educated
within the meaning of the IDEA.” Parents of Student W., 31
F.3d at 1497.
Reinforcing this conclusion, the substantive FAPE
standard—the rule of law the Reids seek to enforce—also
carries a qualitative rather than quantitative focus. As IDEA
13
itself states, the statute’s aim is to guarantee disabled students
“specialized education and related services designed to meet
their unique needs.” See 20 U.S.C. § 1400(d)(1)(A) (emphasis
added). Hence, as the Supreme Court explained in Rowley, “the
basic floor of opportunity provided by the Act consists of access
to specialized instruction and related services which are
individually designed to provide educational benefit to the
handicapped child.” See 458 U.S. at 201 (internal quotation
marks omitted) (emphasis added). We think it would be highly
incongruous if this qualitative focus on individual needs gave
way to mechanical hour-counting when past rather than current
violations of the FAPE standard were at issue. Accordingly, just
as IEPs focus on disabled students’ individual needs, so must
awards compensating past violations rely on individualized
assessments.
Unlike the Reids’ one-for-one standard, this flexible
approach will produce different results in different cases
depending on the child’s needs. Some students may require
only short, intensive compensatory programs targeted at specific
problems or deficiencies. Others may need extended programs,
perhaps even exceeding hour-for-hour replacement of time spent
without FAPE. In addition, courts have recognized that in
setting the award, equity may sometimes require consideration
of the parties’ conduct, such as when the school system
reasonably “require[s] some time to respond to a complex
problem,” M.C., 81 F.3d at 397, or when parents’ refusal to
accept special education delays the child’s receipt of appropriate
services, Parents of Student W., 31 F.3d at 1497. In every case,
however, the inquiry must be fact-specific and, to accomplish
IDEA’s purposes, the ultimate award must be reasonably
calculated to provide the educational benefits that likely would
have accrued from special education services the school district
should have supplied in the first place.
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Given this standard, neither party in this case is entitled to
summary judgment. As to the Reids, because we reject the one-
for-one formula they advocate, the amount of compensatory
education appropriate in Mathew’s case cannot be determined
as a matter of law. Rather, designing Mathew’s remedy will
require a fact-specific exercise of discretion by either the district
court or a hearing officer. As to the school district, although 810
hours certainly seems like a significant award, without grounds
for deference to the hearing officer we may conclude at
summary judgment that this remedy was correct as a matter of
law only if our review of the record reveals that any greater
remedy would amount to an abuse of discretion. We cannot
reach that conclusion because, drawing all inferences in
Mathew’s favor, as we must at summary judgment, see, e.g.,
Maydak, 363 F.3d at 515, we have no basis for concluding that
810 hours—barely more than half of a single academic
year—would suffice to make up for Mathew’s four-and-a-half
years without FAPE, especially considering that during that
period he developed “counterproductive” reading habits.
The district court appears to have granted summary
judgment to the school district simply because it assumed that
compensatory awards need only provide “some benefit” going
forward, as in an ordinary non-compensatory IEP under Rowley.
Applying this standard and assuming that it could defer to the
hearing officer, the district court faulted Mathew for “fail[ing]
to offer proof regarding why the hearing officer’s award is
‘inappropriate’ to achieve what is required by the Act, i.e., a
basic floor of opportunity and ‘access to specialized instruction
and related services which are individually designed to provide
educational benefit to [Mathew].’” See Reid, 310 F. Supp. 2d at
150 (quoting Rowley, 458 U.S. at 201) (alteration in original).
In particular, based on the additional assumption that the
Accotink Academy IEP already compensated Mathew to some
degree, the court faulted the Reids for “fail[ing] to provide the
Court with a copy of Mathew’s current IEP,” a lapse the court
15
believed left it “unable to assess whether the services [Mathew]
is already receiving are inadequate to compensate for the prior
denial of FAPE, which might justify a larger compensatory
education award.” Id. at 152.
As we have explained, however, whereas ordinary IEPs
need only provide “some benefit,” compensatory awards must
do more—they must compensate. Accordingly, the district court
should not have assumed that the Accotink Academy placement,
based as it was only on Rowley, provided compensation. If
anything, at summary judgment the court should have assumed
the opposite, requiring DCPS to offer proof that the placement
compensated for prior FAPE denials in addition to providing
some benefit going forward. Nor should the district court have
assumed the adequacy of the 810-hour award, for that award, as
we have also explained, deserved “little deference,” Kerkam II,
931 F.2d at 87 (internal quotation marks omitted). To be sure,
as the “party challenging the administrative determination,” the
Reids “must at least take on the burden of persuading the court
that the hearing officer was wrong,” Kerkam I, 862 F.2d at 887,
but given the minimal deference owed to the hearing award in
this case, they could satisfy that burden simply by pointing to
the award’s evident arbitrariness. Thus, with the district court’s
incorrect assumptions stripped away, the Reids’ failure to
present evidence beyond the administrative record provides no
justification for awarding summary judgment to the school
district.
Offering yet another theory for affirming the hearing award,
the school district argues that because the Reids based their
challenge to the compensatory education award on their favored
one-for-one standard, reversing the district court’s grant of
summary judgment would require us to accept that mechanical
approach. We disagree. Although the Reids focus on the one-
for-one theory here, as they did in the district court, the relevant
claim in their complaint states not that Mathew was entitled to
16
hour-for-hour relief, but rather that the hearing officer erred by
“limit[ing] relief to one hour for each day that defendants denied
a free public education to Mathew Reid.” See Compl. at 6.
Moreover, based on that theory, Mathew sought not just an
injunction directing defendants to provide an amount of
compensatory education consistent with the hour-for-hour
formula, but also a declaration that the administrative award
“did not adequately compensate Mathew Reid for defendants’
denial of a free appropriate education to Mathew Reid.” See id.
at 7. Far from waiving their claim to the latter relief, the Reids
assert here, again as they did in the district court, that “[t]he
absence of any explanation or support in the record before the
hearing officer itself would be enough to require reversal of the
district court’s decision.” Appellant’s Br. at 19; see also Reid,
310 F. Supp. 2d at 146 n.7 (discussing Reids’ argument that “the
hearing officer ‘fail[ed] to acknowledge the appropriateness
standard, fail[ed] to explain why one hour of compensatory
education for each day of FAPE denied is “appropriate,” and
fail[ed] to explain why a lump sum award of five years . . . is not
appropriate’” (quoting plaintiffs’ memorandum) (alterations and
ellipsis in original)). Because this claim to relief based solely on
the hearing award’s inadequacy is entirely consistent with our
analysis here, we see no reason why our disagreement with the
Reids’ favored one-for-one formula should compel us to endorse
the hearing officer’s equally flawed hour-per-day approach.
Accordingly, we will affirm the district court’s denial of the
Reids’ motion but reverse its grant of summary judgment to the
school district. On remand, the district court may solicit
additional evidence from the parties and fashion an appropriate
compensatory education award based on the principles outlined
in this opinion. See 20 U.S.C. § 1415(i)(2)(B). Alternatively,
in light of the absence of pertinent findings in the administrative
record and given that both parties previously filed cross-motions
for summary judgment rather than exercising their right to
“request” consideration of additional evidence, the district court
17
may determine that the “appropriate” relief is a remand to the
hearing officer for further proceedings. See, e.g., JH ex rel. JD
v. Henrico County Sch. Bd., 395 F.3d 185, 198 (4th Cir. 2005)
(remanding IDEA suit to district court with instructions to
remand to hearing officer); Shapiro v. Paradise Valley Unified
Sch. Dist. No. 69, 152 F.3d 1159, 1160 (9th Cir. 1998) (ordering
district court to stay proceedings and remand to hearing officer).
Whichever path the court chooses, the parties must have some
opportunity to present evidence regarding Mathew’s specific
educational deficits resulting from his loss of FAPE and the
specific compensatory measures needed to best correct those
deficits.
The IEP Team
The Reids’ second challenge raises a straightforward
question of law: may IDEA hearing officers authorize IEP
teams to “reduce or discontinue” compensatory education
awards? Disagreeing with the district court, we answer no.
As the Reids point out, IDEA due process hearings “may
not be conducted by an employee of the State educational
agency or the local educational agency involved in the education
or care of the child.” See 20 U.S.C. § 1415(f)(3). The award at
issue runs afoul of this prohibition, for Mathew’s IEP team, like
any other, must include “a representative of the local educational
agency,” see id. § 1414(d)(1)(B)(iv)—presumably an employee
of that agency—and when modifying an award set by the
hearing officer the IEP team would in effect exercise the
officer’s powers. It makes no difference that the IEP team also
includes non-employees such as Mathew’s mother. Under the
statute, the hearing officer may not delegate his authority to a
group that includes an individual specifically barred from
performing the hearing officer’s functions.
Nor does it make any difference that IDEA affords
“procedural safeguards” to protect parents and students from
18
arbitrary action by IEP teams. See Reid, 310 F. Supp. 2d at 153.
To be sure, if Mathew’s team reduced his award, his mother
could again seek a due process hearing and even judicial review.
Yet as IDEA makes plain, hearing awards “shall be final” unless
modified through administrative appeal or judicial action.
See 20 U.S.C. § 1415(i)(1)(A). Consistent with that
requirement, once a parent challenges an IEP and obtains final
relief, as Ms. Reid has done, preservation of that relief requires
no further action on the parent’s part. To the contrary, before
any reduction in an adjudicated award of compensatory
instruction may take effect, the school district—the party whose
failures, after all, necessitated awarding relief in the first
place—must initiate new proceedings before a hearing officer.
Cf. Helms v. McDaniel, 657 F.2d 800, 805 (5th Cir. 1981) (“To
appoint an officer to conduct the hearing but then to treat his
report only as a recommendation violates the Act’s requirement
that the decision of the hearing officer be final unless
appealed.”). By the same token, of course, any increase sought
by Ms. Reid over the school district’s objection must be justified
to a hearing officer. The point is that absent a new hearing, the
existing award is binding on both parties.
In sum, while the IEP team certainly must monitor
Mathew’s progress and coordinate compensatory relief with his
current IEP, a delegation that permits the team to reduce or
terminate his awarded amount of compensatory education
exceeds the statute’s bounds. We will therefore reverse the
district court’s ruling on this issue.
III.
Neglected by the school system charged with affording him
free appropriate education, Mathew Reid is entitled to
compensatory instruction. He is not entitled, however, to an
amount of such instruction predetermined by a cookie-cutter
formula, but rather to an informed and reasonable exercise of
19
discretion regarding what services he needs to elevate him to the
position he would have occupied absent the school district’s
failures. Accordingly, the district court’s award of summary
judgment to the school district is reversed and the matter
remanded for further proceedings consistent with this opinion.
Any modified award may not delegate authority to the IEP team
to reduce or discontinue the prescribed compensatory
instruction.
So ordered.
Henderson, Circuit Judge, concurring in the judgment: I
agree that this case should be remanded because the district
court relied on an inadequate administrative record to support
the administrative law judge’s (ALJ’s) award of 810 hours of
compensatory education to Mathew Reid. Nevertheless, I write
separately to emphasize my view that, despite the district court’s
equitable authority under the Individuals with Disabilities Act
(IDEA), see Sch. Comm. of Burlington v. Dep’t of Educ., 471
U.S. 359, 374 (1985), to “hear additional evidence at the request
of a party” and “grant such relief as the court determines is
appropriate,” 20 U.S.C. § 1415(i)(2)(B)(ii) & (iii), the record in
an IDEA case is supposed to be made not in the district court but
primarily at the administrative level, where the parties and the
school authorities, sometimes with input from other
professionals, can tailor an individualized education plan (IEP)
to the student’s needs. Id. at § 1415(f)(1)-(2) & (h). Denying a
party’s request to hear additional evidence is a valid exercise of
the district court’s discretion that should be upheld except
where, as here, the administrative record is deficient. Had the
ALJ made a sufficient record, I would not have hesitated to
affirm the district court’s grant of summary judgment without
additional proceedings.