Leggett v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
K.E., et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-0084 (RBW)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
___________________________________ )

MEMORANDUM OPINION

Plaintiffs Jane Leggett, in her own right and on behalf of her daughter, K.E., bring claims

under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. §§ 1400-1491

(2012), alleging that the District of Columbia failed to: (1) provide K.E. with a free appropriate

public education, (2) order an appropriate program and placement, and (3) render a proper

decision during the administrative proceedings. Complaint for Declaratory and Injunctive Relief

(“Compl.”) ¶¶ 94-100. Currently before the Court are the parties’ cross motions for summary

judgment. After careful consideration of the parties’ submissions and the administrative record

in this case, 1 the Court concludes for the reasons below that it must grant the defendant’s motion

for summary judgment.

1
In addition to the filings already referenced, including the Administrative Record (“A.R.”), the Court considered
the following documents in rendering its decision: (1) the Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion
for Summary Judgment (“Pls.’ Mem.”); (2) the Plaintiffs’ Statement of Material Facts as to Which There is No
Genuine Issue (Pls.’ Facts); (3) the Defendant’s Opposition to Plaintiff’s [sic] Motion for Summary Judgment and
Cross-Motion for Summary Judgment (“Def.’s Opp’n”); (4) the Plaintiffs’ Opposition to the Defendant’s Cross
Motion for Summary Judgment and Reply to Defendant’s Opposition to Plaintiffs’ Motion for Summary Judgment
(“Pls.’ Opp’n”); and (5) the Defendant’s Reply to Plaintiff’s [sic] Opposition to Defendant’s Cross-Motion for
Summary Judgment (“Def.’s Reply”).

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 I. Statutory Background

Under the IDEA, states and territories, including the District of Columbia, that accept

federal educational funds must provide a free appropriate public education (“FAPE”) to students

with disabilities residing within their borders. See 20 U.S.C. § 1412(a)(1)(A). The IDEA

defines a FAPE as an education which is “[(A)] provided at public expense, under public

supervision and direction, and without charge; (B) meet[s] the standards of the State educational

agency; (C) include[s] an appropriate preschool, elementary school, or secondary school

education in the State involved; and (D) [is] provided in conformity with the individualized

education program.” Id. § 1401(9). Once a student is deemed eligible to receive services under

the IDEA, a team which includes the parent or parents of the student, certain teachers, and a

representative of the local educational agency develops an individualized education program

(“IEP”) for the student in accordance with the requirements of the IDEA. Id. §§ 1414(d)(1)(A),

(B). In addition to developing the IEP, the student’s team determines an appropriate educational

placement for the student. See id. § 1414(e). The statute requires that “[a]t the beginning of

each school year, each local educational agency, State educational agency, or other State agency

. . . shall have in effect, for each child with a disability in the agency’s jurisdiction, an [IEP] . . .

.” Id. § 1414(d)(2)(A).

The IDEA provides that a parent may submit a complaint to an educational agency “with

respect to any matter relating to the identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education to such child” and receive a hearing

on the complaint conducted by an independent hearing officer. Id. §§ 1415(b)(6)(A), (f). The

IDEA provides that when a parent alleges a procedural violation,

a hearing officer may find that a child did not receive a [FAPE] only if the
procedural inadequacies: (i) impeded the child’s right to a free appropriate public

2
 education; (ii) significantly impeded the parents’ opportunity to participate in the
decision making process regarding the provision of a free appropriate public
education to the parents’ child; or (iii) caused a deprivation of educational
benefits.

Id. § 1415(f)(3)(E). A party who is dissatisfied with the decision of the hearing officer may file a

civil action in federal district court seeking review of the hearing officer’s decision. Id. §

1415(i)(2)(A). If the hearing officer or district court determines that the agency failed to provide

the student with a FAPE, the officer or court may require the agency to reimburse the parents of

the child for the cost of enrollment at a private institution. Id. § 1412(a)(10)(C)(ii).

II. Factual Background

K.E. is a seventeen-year-old child who has been deemed eligible to receive services

under the IDEA as a student with several emotional disorders. A.R. at 9-10. Testing indicated

that K.E.’s verbal abilities are “in the superior range of intelligence,” A.R. at 127; however, K.E.

is diagnosed with a Major Depressive Disorder, a Panic Disorder, a Post-Traumatic Stress

Disorder, an Identity Problem, a Reading Disorder, and an Attention Deficit Hyperactivity

Disorder. A.R. at 9. As a result of these diagnoses, K.E.’s personal therapist recommends that

she be placed in a small, highly-structured therapeutic classroom with a low student to teacher

ratio throughout the day as well as given time accommodations on tests and quizzes. Id.

Prior to the 2012-2013 school year, K.E. attended public schools within the District of

Columbia Public Schools (“DCPS”) System. A.R. at 6. During the 2011-2012 school year, K.E.

attended Wilson Senior High School (“Wilson”) and was enrolled in Advanced Placement

(“AP”) English, AP Biology, AP U.S. History, and Honors Pre-Calculus. A.R. at 7. At some

point during the 2011-2012 school year, as a result of her various disorders, K.E. “engaged

increasingly in self-destructive behaviors,” was absent from approximately seventy-five percent

of her classes, and began failing her classes. A.R. at 7.

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 In January 2012, K.E.’s mother requested that K.E. be evaluated for special education

eligibility. 2 A.R. at 8. DCPS evaluated K.E. in the spring of 2012 and determined that her

“social and emotional concerns [were] exerting the most significant impact on her educational

functioning.” A.R. at 191. DCPS also determined she met the criteria for a student with an

emotional disturbance and was therefore qualified to receive services under the IDEA. Id.

DCPS determined further that K.E. would “benefit from behavioral support to address issues

related to her anxiety and depression, social skills development and self[-]esteem, and, in light of

her executive functioning problems, [she] would require a higher level of adult-provided

structure, direction, nurturing[,] and feedback than is needed by most [s]tudents.” A.R. at 10.

An IEP team meeting was held at Wilson on May 22, 2012, to develop K.E.’s IEP. Id.

The IEP Team convened again on both June 7 and 14, 2012, to complete K.E.’s IEP. Id.

At the June 7, 2012 IEP meeting (“June 7 meeting”), DCPS presented a nine-page draft IEP to

which Ms. Leggett submitted an additional seven pages of suggestions for inclusion into the IEP.

A.R. at 228-37. Dr. Peggy Peagler, Wilson’s Special Education Coordinator, testified at the

administrative hearing that “based on the pages [Ms. Leggett] submitted to us we went line for

line and incorporated it” into the draft IEP during the June 14, 2012 IEP meeting (“June 14

meeting”). A.R. 937. Because K.E.’s IEP was not completed during the June 14 meeting, the

IEP team agreed to meet again in late August to finish it. A.R. at 11-12, 697, 705, 983. During

June and July Ms. Leggett and her attorney made telephone calls and sent emails to DCPS to

2
This request was the subject of a due process complaint filed by K.E.’s mother against DCPS on February 8, 2012,
“seeking comprehensive special education evaluations for K.E. that had not been offered at the January 2012
meeting.” A.R. at 9. This administrative complaint was withdrawn on March 14, 2012, after DCPS agreed to
evaluate K.E. Id. At DCPS’ suggestion, K.E. was privately tested by Dr. Vincent Culotta, a neuropsychologist.
A.R. at 8.

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schedule a meeting to complete K.E.’s IEP, but DCPS did not respond and the meeting never

occurred. A.R. at 11-12.

During the summer of 2012, the plaintiffs applied for admission to one private special

education school located within the District of Columbia, but K.E. was not admitted. A.R. at

263. The plaintiffs also applied for K.E.’s admission to The Grier School (“Grier”), an all-girls

residential private school located in central Pennsylvania. A.R. at 10. At Grier, all of the core

classes are taught in a general education setting by teachers who are not certified in special

education. A.R. at 11. These classes are comprised of, at most, fourteen students per class. Id.

Less than one percent of the students enrolled in Grier have IEPs. Id. “Grier does not have an

Office of the State Superintendent of Education Certificate of Approval for nonpublic special

education schools and programs[] serving students with disabilities funded by the District of

Columbia,” id., and is not primarily a school for children with learning or emotional issues, A.R.

at 709. On August 6, 2012, after being informed that K.E. would be admitted to Grier, the

plaintiff withdrew K.E. from Wilson and notified DCPS, through counsel, that she intended to

enroll K.E. at Grier and seek public funding to pay for the costs of K.E.’s attendance at Grier.

A.R. at 11. The plaintiff then filed a due process complaint on August 17, 2012, A.R. at 12, and

on August 29, 2012, an unsuccessful “resolution session” was held, A.R. 12.

Classes began at Wilson on August 27, 2012, and K.E.’s IEP was completed two weeks

later on September 11, 2012. 3 A.R. 309. K.E. never attended classes at Wilson during the 2012-

2013 school year; instead, she began school at Grier when classes commenced on September 6,

3
Although both parties agree that the IEP was completed on September 11, 2012, the plaintiff contends that she did
not agree with the school system’s proposal for services. A.R. at 12. This position is raised for the first time in the
plaintiffs’ opposition when they assert that “[t]he [b]elatedly [p]roposed DCPS IEP for the 2012-2013 [s]chool
[y]ear is [p]rocedurally [f]lawed and [s]ubstantively [i]nappropriate for K.E.” Pls.’ Opp’n at 16-18. At no point of
which the Court is aware did the plaintiffs seek any administrative review of the completed IEP and thus, despite
their reference to their dissatisfaction with it, the Court need not address this claim.

5
2012. A.R. 13. Although K.E. did not have an IEP at Grier, A.R. at 12, she was provided

learning assistance and academic support through Grier’s Learning Skills Program, A.R. at 13.

K.E. has attended her classes and performed well while attending Grier, earning “all A’s and

B’s” and improving her “executive functioning skills.” A.R. at 15.

The Due Process Hearing and Decision

The plaintiffs’ administrative complaint alleged that DCPS denied K.E. a FAPE when it

did not complete her IEP prior to the beginning of the 2012-2013 school year and by failing to

offer K.E. an appropriate school placement. A.R. 3-4. The plaintiffs sought relief in the form of

funding in the amount of $56,900 which included: (1) $46,800 for tuition, room, and board at

Grier; (2) $2,500 for Grier’s horseback riding program; (3) $3,800 for the Learning Skills

program; and (4) $2,000 for the Student Support Evening Tutor services. A.R. at 348.

The due process hearing was held on October 15 and 17, 2012. A.R. at 4. The hearing

officer heard testimony from Ms. Leggett; Dr. Vincent Culotta, who performed K.E.’s initial

evaluation; Michelle Davis, K.E.’s Learning Skills teacher at Grier; Caren Crago, the Director of

Counseling at Grier; Jamie Josephson, K.E.’s social studies teacher at Wilson; and Dr. Peagler.

A.R. at 25. The District argued during the administrative hearing that the two-week delay in

completing K.E.’s IEP was a de minimus procedural violation, and accordingly, did not amount

to a denial of K.E.’s right to a FAPE. A.R. at 15.

On October 27, 2012, the hearing officer issued his decision. A.R. at 1. The Hearing

Officer’s Decision (“HOD”) rejected the District’s argument to the contrary, finding that

“DCPS’ failure to develop an IEP for [K.E.] prior to the start of the 2012-2013 school year

resulted in [a] loss of [an] educational opportunity to [K.E.] and was a clear denial of FAPE.”

A.R. at 19. However, the HOD ultimately concluded that the plaintiffs did not meet their

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“burden to demonstrate that [K.E.’s] full-time residential placement at [Grier] is necessary for

educational purposes.” A.R. at 24. Therefore, the hearing officer “den[ied K.E.’s mother’s]

request that DCPS be ordered to reimburse her for the costs of [K.E.’s] enrollment at [Grier] or

to fund [K.E.’s] continued enrollment at that school for the remainder of the 2012-2013 school

year.” 4 Id.

On January 18, 2013, the plaintiffs sought review of the hearing officer’s decision by this

Court, see Compl. ¶¶ 65-71, and the parties have now both moved for summary judgment.

III. Standard of Review

Summary judgment is proper when the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). In IDEA cases in which “neither party seeks to present additional evidence, a

motion for summary judgment ‘operates as a motion for judgment based on the evidence

comprising the record.’” Parker v. Friendship Edison Pub. Charter Sch., 577 F. Supp. 2d 68, 72

(D.D.C. 2008) (citations omitted).

A district court reviewing the findings and decision of an administrative hearing officer

in an IDEA case “(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). Under this standard, the reviewing court owes the hearing officer “‘less deference

than is conventional’ in administrative proceedings.” Reid ex rel. Reid v. District of Columbia,

401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir.

4
Of note, when Ms. Leggett’s attorney was asked by the hearing officer if they would be willing to accept “some
alternative to choosing no reimbursement at all as opposed to some partial type of reimbursement?,” A.R. at 1047,
the attorney responded “No, we’re asking for all of it,” A.R. 1048.

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1988) (“Kerkam I”)). Moreover, “a hearing decision ‘without reasoned and specific findings

deserves little deference.’” Id. (quoting Kerkam v. Superintendent, D.C. Pub. Schs., 931 F.2d

84, 87 (D.C. Cir. 1991) (“Kerkam II”)).

Nevertheless, “the provision that a reviewing court base its decision on the

‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their 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 Cnty. V. Rowley, 458 U.S. 176, 206

(1982) (internal citations omitted). Rather, the party challenging a hearing officer’s

determination must “at least take on the burden of persuading the court that the hearing officer

was wrong, and . . . a court upsetting the officer’s decision must at least explain its basis for

doing so.” Reid, 401 F.3d at 521 (quoting Kerkam I, 862 F.2d at 887). Moreover, “‘[f]actual

findings from the administrative proceeding are to be considered prima facie correct.’” Roark ex

rel. Roark v. District of Columbia, 460 F. Supp. 2d 32, 38 (D.D.C. 2006) (quoting S.H. v. State-

Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)). Finally, a court

must also “defer to the [hearing officer’s] factual findings unless it can point to contrary

nontestimonial extrinsic evidence on the record.” Savoy v. District of Columbia, 844 F. Supp.

2d 23, 30 (D.D.C. 2012) (quoting S.H., 336 F.3d at 270).

IV. Legal Analysis

The plaintiffs argue that the hearing officer correctly determined that K.E. was denied a

FAPE but that his determination that Grier was not an appropriate placement was erroneous and

should be reversed. Pls.’ Mem. at 10-20. As noted above, the hearing officer made two

conclusions of law. First, the hearing officer found that DCPS’ failure to develop an IEP for

K.E. before the first day of school constituted a denial of FAPE. A.R. at 17. Second, the hearing

8
officer found that although K.E. was denied a FAPE, the plaintiffs are not entitled to

reimbursement for the costs associated with K.E.’s attendance at Grier because her residential

placement at Grier was not “necessary for educational purposes.” A.R. at 17-18

Under the IDEA, parents who unilaterally place their child at a private school without the

consent of school officials do so at their own financial risk. Florence Cnty. Sch. Dist. 4 v.

Carter, 510 U.S. 7, 15, (1993) (citation omitted). Parents in such situations may be reimbursed

only if “the court or hearing officer finds that the agency had not made FAPE available to the

child in a timely manner prior to that enrollment and that the private placement is appropriate,”

34 C.F.R. § 300.148(c) (2012); see also Florence Cnty., 510 U.S. at 15 (parent may only receive

tuition reimbursement “if a federal court concludes both that the public placement violated IDEA

and that the private school placement was proper under the Act”); Holland v. District of

Columbia, 71 F.3d 417, 420 n.3 (D.C. Cir. 1995) (noting that the circuit has ordered

reimbursement “where the public agency violated [the IDEA] and the parents made an

appropriate placement”). Since the plaintiffs are entitled to reimbursement for K.E.’s education

at Grier only if the defendant deprived K.E. of a FAPE, the Court begins its analysis with that

assessment. See 20 U.S.C. § 1412(a)(10)(C)(ii) (stating that reimbursement may be appropriate

if “the agency had not made a free appropriate public education available to the child in a timely

manner prior to [the private-school] enrollment”).

A. The delay in completing K.E.’s IEP

The first issue the Court must address is whether K.E. was denied a FAPE by DCPS’

failure to provide K.E. with a completed IEP prior to the start of the 2012-2013 school year. The

hearing officer found that this failure “resulted in a loss of [an] educational opportunity to [K.E.]

and was a clear denial of [a] FAPE.” A.R. 17. The District argues that this determination was

9
erroneous, because the delay encompassed only eleven school days and therefore constituted a de

minimus procedural violation that did not deny K.E. the right to a FAPE. The Court agrees with

the hearing officer that K.E. was denied a FAPE due to DCPS’ failure to complete the IEP by

August 27, 2012.

Although a procedural violation may rise to the level of a denial of a FAPE, this Circuit,

along with several others, has held that “an IDEA claim is viable only if those procedural

violations affected the student’s substantive rights.” Lesesne v. District of Columbia, 447 F.3d

828, 834 (D.C. Cir. 2006) (denying relief under the IDEA because the plaintiff “made no effort

to demonstrate . . . that [her son’s] education was affected by any procedural violations DCPS

might have committed”); see e.g., Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d

804, 811-12 (5th Cir. 2003) (“procedural defects alone do not constitute a violation of the right to

a FAPE unless they result in the loss of an educational opportunity”); Knable ex rel. Knable v.

Bexley City Sch. Dist., 238 F.3d 755, 765 (6th Cir. 2001) (“a procedural violation of the IDEA is

not a per se denial of a FAPE; rather, a school district’s failure to comply with the procedural

requirements of the Act will constitute a denial of a FAPE only if such violation causes

substantive harm to the child or his parents”).

Under the IDEA’s implementing regulations, substantive harm occurs if the

preponderance of the evidence establishes that the procedural inadequacies: “(i) [i]mpeded the

child’s right to a FAPE; (ii) significantly impeded the parent’s opportunity to participate in the

decision-making process regarding the provision of a FAPE to the parent’s child; or (iii) caused a

deprivation of the educational benefit.” 34 C.F.R. § 300.513(a)(2), see also 20 U.S.C. §

1415(f)(3)(E); D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d Cir. 2010) (citing 20 U.S.C.

§ 1415(f)(3)(E)) (“[a] procedural violation is actionable under the IDEA only if it results in a loss

10
of educational opportunity for the student, seriously deprives parents of their participation rights,

or causes a deprivation of educational benefits”).

The Third Circuit recently considered the ramifications of the failure to complete an IEP

prior to the beginning of the school year in C.H. v. Cape Henlopen School District, 606 F.3d 59

(3d Cir. 2010). There, like in this case, Cape Henlopen procedurally violated the IDEA by

failing to complete an IEP for C.H. prior to the start of the school year. Id. at 63. There too,

C.H.’s mother elected to unilaterally withdraw C.H. from his public school and place him in a

private school. 5 Id. at 64. She then did not allow the school system access to C.H. to complete

his evaluation. Id. The Court reasoned that although the school district missed the deadline for

completing the IEP, it had demonstrated a “consistent willingness to evaluate C.H. and to

develop an IEP” by sponsoring a psychological evaluation of C.H. and convening an IEP

meeting with C.H.’s parents. Id. When C.H.’s parents brought suit claiming that C.H.’s right to

a FAPE was violated because his IEP was not finalized by the first day of classes, the Third

Circuit held that because of all the efforts taken by Cape Henlopen to evaluate C.H. and devise

an appropriate IEP for him, coupled with the unreasonable actions taken by C.H.’s mother, the

school district’s failure to adopt a final IEP before the first day of school did not violate C.H.’s

substantive rights. Id. at 69-70.

Much like C.H.’s parents, the plaintiffs argue that because “K.E.’s IEP remained

incomplete at the start of the 2012-2013 school year . . . [the District] was to blame for this

violation.” Pls.’ Reply at 3-4. As support for K.E.’s mother’s decision to withdraw K.E. from

DCPS enrollment three weeks prior to the IEP due date, the plaintiffs rely on G.G. ex rel.

5
It is noteworthy that C.H.’s mother did not file her due process complaint until after the school year began and
after Cape Henlopen’s statutorily mandated IEP deadline had expired. Cape Henlopen, 606 F.3d at 64.

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Gersten v. District of Columbia, 924 F. Supp. 2d 273 (D.D.C. 2013), in which another member

of this Court held that the “[f]ailure to develop an IEP is essentially a denial of a FAPE.” G.G.

924 F. Supp. 2d at 280. However, in the plaintiffs’ efforts to inoculate the decision to

unilaterally withdraw K.E. from Wilson, they fail to acknowledge that central to the Court’s

decision in G.G. was DCPS’ initial failure to timely evaluate and make any eligibility

determination regarding G.G., making it impossible for the IEP to be completed by the required

date. The Court in G.G. also found compelling the fact that at no point during the proceedings

did “the District . . . contend that an IEP was even in the process of being completed, by the . . .

deadline or beyond.” Id. Thus, because DCPS had not taken the steps necessary to develop an

IEP within the time period required by the IDEA, the Court in G.G. found that the child was

“effectively barr[ed] . . . from receiving a timely IEP,” resulting in a procedural violation

amounting to substantive harm. Id.

Here, there is no dispute that, as was the case in Cape Henlopen, the District committed a

procedural violation by failing to have K.E.’s IEP completed by the first day of the 2012-2013

school year. This was a violation of the plain mandate of the IDEA that a District should have an

IEP in place “[a]t the beginning of each school year.” 20 U.S.C. § 1414(d)(2)(A). Much like

was the situation in Cape Henlopen, K.E.’s mother enrolled her in Grier based on her

independent presumption that DCPS would fail to have an IEP in place when the school year

commenced, and unlike in G.G., when K.E. was withdrawn from Wilson, DCPS still had time to

complete the IEP by the first day of school on August 27, 2012. 6 However, although the Court is

6
The Court acknowledges that although the first day of school for DCPS was August 27, 2012, the IEP was not
completed until September 11, 2012. However, the Court finds it important to note that K.E. was withdrawn from
DCPS several weeks before the first day of school. The court in Cape Henlopen considered the unilateral
withdrawal of a student prior to the IEP deadline as a factor to consider when deciding the ramifications of a
procedural violation.

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troubled by Ms. Leggett’s precipitous actions, and finds it disturbing that she withdrew K.E.

from Wilson three weeks before K.E.’s IEP was legally required to be completed, because she

made several attempts to have DCPS reconvene the IEP team meeting prior to K.E.’s withdrawal

from Wilson, 7 her actions do not rise to the level of unreasonableness found in Cape Henlopen.

Despite Ms. Leggett’s premature removal of K.E. from Wilson, the Court cannot

overlook DCPS’ culpability. Courts in this Circuit are willing to find a denial of a FAPE when

DCPS has abrogated its responsibility and, as a result, the student’s IEP was not completed prior

to the beginning of the school year. See, e.g., Maynard v. District of Columbia, 701 F. Supp. 2d

116, 123-24 (D.D.C. 2010) (finding that it was a denial of a FAPE where, as a result of DCPS’

failure to convene any IEP team meeting prior to the first day of school, the student’s IEP was

not developed by that date) (emphasis added); Alfono v. District of Columbia, 422 F. Supp. 2d 1,

5-8 (D.D.C. 2006) (finding that DCPS’ failure to incorporate the findings of various evaluations

in the student’s IEP prior to the first day of school amounted to a denial of a FAPE until two

months later when the student’s “goals and objectives or a means for measuring her progress”

were incorporated into her IEP) (emphasis added). The Court therefore rejects the defendant’s

argument that DCPS’ failure to complete K.E.’s IEP prior to September 11, 2012, was merely a

procedural violation. Unable to find any reason why Ms. Leggett’s requests to reconvene the

7
The record is unclear as to how extensive these efforts actually were. Upon reviewing the administrative record,
the Court has found two email communications to DCPS from, or on behalf of, Ms. Leggett prior to August 6, 2012.
In the first, Ms. Leggett made reference to the fact that she thought the IEP team had “made a lot of progress” and
that she “talked with Ms. Lewis by phone about goals for the behavioral section of the IEP.” A.R. 253. The second
email was sent by Ms. Leggett’s attorney on July 11, 2012, seeking to reconvene the IEP team meeting. A.R. at
260. However, this is the last communication that the Court has found in the record prior to Ms. Leggett’s August 6,
2012 fax informing Wilson of her decision to enroll K.E. in Grier and seek public funding to pay for the child’s
enrollment at Grier. A.R. at 260-262.

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IEP team went unanswered by DCPS and DCPS’ failure to have the IEP in place by August 27,

2012, cause the Court to find that K.E. was denied a FAPE. 8

B. The Hearing Officer’s Reimbursement Denial

Despite DCPS’ failure to timely provide a FAPE to K.E. for the 2012-2013 school year,

Ms. Leggett is only entitled to reimbursement if K.E.’s placement at Grier was appropriate. See

Holland, 71 F.3d at 420 n.3 (D.C. Cir. 1995) (noting that this circuit has ordered reimbursement

“where the public agency violated [the IDEA] and the parents made an appropriate placement”).

Because the Court finds that the hearing officer correctly found that Grier was not an appropriate

placement, it agrees that Ms. Leggett is not entitled to reimbursement for the expenses she seeks

to recover. See, e.g., Florence Cnty., 510 U.S. at 15 (tuition reimbursement is only permitted if

“the court or hearing officer finds that . . . the private school placement is appropriate”).

The hearing officer held that “to determine whether a residential placement is

appropriate, a court must analyze ‘whether full-time placement may be considered necessary for

educational purposes[.]’” A.R. at 21 (quoting McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C.

Cir. 1985)) (emphasis added). Applying the logic of McKenzie, 771 F.2d at 1534, he reasoned

that “the test is not whether the Student receives educational benefit, but whether the full-time

residential placement may be considered necessary for educational purposes.” A.R. at 23. The

hearing officer then made the following observations:

In the present case, [Ms. Leggett] has not met her burden of proof to establish that
[K.E.’s] . . . residential placement at [Grier] is necessary for educational purposes.

8
It is this combination of facts that the Court finds persuasive. It does appear that DCPS was attempting to
procedurally and substantially comply with the IDEA by ensuring that K.E. was properly evaluated prior to the
completion of the 2011-2012 school year and conducting two IEP team meetings for the purpose of drafting an
appropriate IEP that incorporated the findings of her evaluations. In both meetings, Ms. Leggett was afforded the
opportunity to meaningfully participate and, by all accounts, K.E.’s IEP team was considering all of K.E.’s needs to
develop as complete an IEP as possible. What ultimately tipped the scales for the Court was the absence of an IEP
by the statutorily mandated due date.

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 [Ms. Leggett] has adduced no evidence that [K.E.] requires placement at [Grier],
or at any residential facility, for her medical, social, or emotional problems. To
the contrary, [Ms. Leggett’s] expert . . . recommended in his February 2012
neuropsychological evaluation report that [K.E.] receive consistent psychiatric
services and regular psychotherapy on an “outpatient” basis. . . . Moreover,
[Grier] is not a residential treatment center or a therapeutic boarding school. Very
few of its students have IEPs. Even the Learning Skills program at [Grier] is an
elective class, designed for any student still developing organizational or study
skills, or in need of individual instruction in specific subjects.

Neither does the evidence establish that [K.E.’s] residential placement at [Grier]
is necessary for educational purposes. Former Social Studies Teacher [Jamie
Josephson], who, of all the witnesses except for [Ms. Leggett], knew [K.E.] best
and was most familiar with her educational issues and needs, opined that [K.E.]
needed 1:1 support in her classes, which could be provided by a special education
co-teacher in an inclusion classroom setting. [Ms. Leggett] also acknowledged in
her testimony that an inclusion setting in all core classes might be appropriate for
[K.E.], but contended that such an inclusion setting was not available in all classes
at [Wilson]. At the September 11, 2012 IEP meeting, [Ms. Leggett’s] co-counsel
stated [Ms. Leggett’s] “standing belief” that [K.E.] needed specialized instruction
in inclusion classes throughout the school day. In his neuropsychological
evaluation report, [Dr. Culotta] recommended that [K.E.] be placed in a small,
highly structured, therapeutic classroom with a low student-to teacher ratio
throughout her day. . . . It is clear from his report, however, that [Dr. Culotta]
envisioned that [K.E.] would receive these services and accommodations at a
nonresidential school.

A.R. at 22-23. Based on this evidence the hearing officer concluded that Ms. Leggett had “not

met her burden to demonstrate that [K.E’s] full-time residential placement at [Grier] is necessary

for educational purposes.” Id. at 24. He therefore concluded that Ms. Leggett was not entitled

“to reimburse[ment] . . . for the costs of [K.E.’s] enrollment at [Grier] or to fund [K.E.’s]

enrollment at [Grier] or to fund [K.E.’s] continued enrollment at that school for the remainder of

the 2012-2013 school year.” Id.

The Court agrees that the hearing officer’s finding that Grier was not an appropriate

placement for K.E. is supported by the administrative record. Part of this finding was based on

the unproven need of K.E.’s placement in a residential setting. On this point the Court too

agrees. See Anderson v. District of Columbia, 606 F. Supp. 2d 86, 90 n.1 (D.D.C. 2009) (“as

15
long as the [hearing officer’s] decision is ‘sufficiently detailed to permit the district court to

understand the basis for the hearing officer’s resolution of the parents’ claims,’ the Court should

afford it due deference” (quoting J.P. ex rel. Peterson v. Cnty. Sch. Bd., 516 F.3d 254, 261 (4th

Cir. 2008)). As is evident in his decision, the hearing officer clearly relied on the plaintiffs’

witnesses in assessing the appropriateness of Grier with respect to what K.E. needed to be

academically successful. Since the IDEA does not require a school district to pay for a private

school education simply because that opportunity would be ideal for a student, the Court is

unpersuaded by the plaintiffs’ contention that any private school that provides a child an

educational benefit is appropriate. See Roark, 460 F. Supp. 2d at 45 (quoting Rowley, 458 U.S.

at 201, 198) (“[t]he IDEA’s guarantee of a FAPE is that of a ‘basic floor of opportunity . . . [that]

consists of access to specialized instruction and related services which are individually designed

to provide education benefit to the handicapped child’ . . . . [T]here is no requirement for a state

to provide services to maximize each child’s potential . . . .”).

Citing Wirta v. Dist. of Columbia, 859 F. Supp. 1 (D.D.C. 1994), counsel for the

plaintiffs argue that in the District of Columbia all Ms. Leggett is required to show is that K.E.

was placed in a school that is “reasonably calculated to enable the child to receive educational

benefits.” Pls.’ Opp’n at 6. By the plaintiffs’ assessment, the hearing officer needed only to

determine if Grier provided an educational benefit to K.E. and that it was error for the hearing

officer to consider whether residential placement was necessary. Id. This argument is

tantamount to saying that Ms. Leggett has carte blanche right to select any private school in the

country so long as K.E. received some educational benefit from the placement. This argument

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defies logic and attempts to read the word reasonable out of case law upon which the plaintiffs

rely. 9

Furthermore, a finding that the selection of a school by a parent was unreasonable is not

solely dependent on a determination that the private placement is an appropriate placement, but

rather is informed based on a factual analysis of all of the events that lead to the selection. See

Maynard v. District of Columbia, 701 F. Supp. 2d 116, 124-25 (D.D.C. 2010) (finding that even

though the child was denied a FAPE and the private placement was appropriate, reimbursement

for unilateral private placement was not appropriate when the parent acted unreasonably).

“Courts fashioning discretionary equitable relief under the IDEA must consider all relevant

factors, including the appropriate and reasonable level of reimbursement that should be

required.” Florence Cnty., 510 U.S. at 16. Courts may therefore reduce or deny tuition

reimbursement “upon a judicial finding of unreasonableness with respect to actions taken by the

parents.” 20 U.S.C. § 1412(a)(10)(C)(iii)(III), see also 34 C.F.R. § 300.148(d)(3) (explaining

that reimbursement for a unilateral private placement “may be reduced or denied” if actions

taken by a parent are found to be unreasonable). “Because placement decisions implicate

equitable considerations, . . . courts may also consider the parties’ conduct.” Branham v. Gov’t

of the District of Columbia, 427 F.3d 7, 12 (citing Reid, 401 F.3d at 524).

Aside from the unreasonableness of Ms. Leggett’s decision to remove K.E. from Wilson

three weeks before the start of the school year, at a time when the District had not yet failed in its

obligations to K.E. under the IDEA, the Court also finds Ms. Leggett’s decision to place K.E. at

9
The plaintiffs argue that “[t]he test of whether a parental placement is ‘proper under the Act’ is not whether the
parental placement provides the equivalent of a FAPE . . . but rather if ‘the education provided by the private school
is ‘reasonably calculated to enable the child to receive educational benefits.’” Pls.’ Mem. at 13. However, in this
Circuit, “proof that loving parents can craft a better program than a state offers does not, alone, entitle them to
prevail under the [IDEA].” Kerkam I, 862 F.2d at 886 (reiterating that there is no requirement to “maximize the
potential of handicapped children” when evaluating what is an “‘appropriate’ education”).

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a school far from the District of Columbia with an annual cost of $56,900, and which,

acknowledged by Ms. Leggett’s own testimony, is “not primarily a school for kids with learning

or emotional issues” was unreasonable. A.R. at 709.

Compounding what, in this Court’s opinion, is already an extremely unreasonable set of

circumstances regarding the timing of K.E.’s withdrawal from Wilson and placement at Grier, is

the fact that the plaintiffs never challenged the September 2012 IEP. Despite making a number

of references to Ms. Leggett’s dissatisfaction with the 2012 IEP, including an assertion, raised

for the first time in their opposition brief, that the IEP is procedurally flawed and substantively

inappropriate for K.E., at no point that the Court has been made aware, was an administrative

complaint filed to address the merits of the IEP. 10 Instead, after the IEP was completed on

September 11, 2012, K.E. remained enrolled at Grier. And as of the date of this Court’s

decision, K.E. has now been enrolled at Grier for approximately sixteen months without an

administrative complaint having been filed challenging the September 11, 2012 IEP.

While the Court is sympathetic to Ms. Leggett’s efforts to obtain the best possible

education for K.E., giving all due consideration to the hearing officer’s factual findings, and,

after its own review of the administrative record, the Court finds that the plaintiffs have failed to

show by a preponderance of the evidence that the hearing officer incorrectly determined that

Grier is not an appropriate placement for K.E. Consequently, the plaintiffs are not entitled to

reimbursement for the costs of K.E.’s placement at Grier.

10
The Court acknowledges that Ms. Leggett’s attorney, who was present at the September 11, 2011 IEP team
meeting, did send a letter to Dr. Peagler expressing his concerns regarding the IEP. A.R at 310-11. However, there
has been no subsequent administrative complaint filed of which the Court is aware.

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 V. Conclusion

For the foregoing reasons, the Court concludes that the District of Columbia’s failure to

adopt an IEP for K.E. before the first day of DCPS’ 2012-2013 school year violated K.E.’s right

to a FAPE as required by the IDEA. The Court further concludes that the hearing officer

correctly determined that Grier was not an appropriate placement for K.E. Thus, the Court finds

that the plaintiffs are not entitled to reimbursement for K.E.’s unilateral placement at Grier. See

20 U.S.C. § 1412(a)(10)(C)(ii); Florence Cnty., 510 U.S. at 15 (citation omitted) (holding that

parents “are entitled to reimbursement only if a federal court concludes that both the public

placement violated the IDEA and that the private school placement was proper under the Act”

and those who “unilaterally change their child’s placement . . . do so at their own financial risk”).

Accordingly, the defendant’s motion for summary judgment is granted and the plaintiffs’ motion

for summary judgment is denied.

SO ORDERED this 23rd day of January, 2014. 11

REGGIE B. WALTON
United States District Judge

11
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

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