L.R.L. Ex Rel. Lomax v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

L.R.L., a minor, by his mother and next
Friend SHANTEL LOMAX

Plaintiffs,
Civil Action No. 11-883 (BAH/AK)
v.
Judge Beryl A. Howell
DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Pending before the Court are objections filed by the defendant District of Columbia to

Magistrate Judge Alan Kay’s Report and Recommendation, which recommended denial of the

defendant’s motion for summary judgment and grant of summary judgment to the minor

plaintiff, L.R.L., who is represented in this action by his mother Shantel Lomax (“plaintiff”).

ECF No. 19 (“MJ Report”). The defendant objects that the Magistrate Judge improperly

construed 20 U.S.C. § 1415(b)(6) of the Individuals with Disabilities in Education Act

(“IDEA”), 20 U.S.C. §§ 1400 et seq., to permit a student to bring a due process complaint for

compensatory education against a local education authority (“LEA”), with which the student was

formerly enrolled, after the student had moved to a new LEA. For the reasons set forth below,

the Court adopts the Magistrate Judge’s Report and Recommendation and hereby GRANTS the

plaintiffs’ Motion for Summary Judgment and DENIES the defendant’s Motion for Summary

Judgment.

I. BACKGROUND

The factual and procedural background for this matter is set forth in detail in the

Magistrate’s Report and, thus, will be summarized only briefly here. As set forth in the

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administrative record, and undisputed in the parties’ statements of facts, the plaintiff first

requested special education services under the IDEA from the defendant’s Early Stages

Center on March 4, 2009, when L.R.L. was three years old. Administrative Record (“AR”) at

11, ECF No. 11; Def.’s Statement of Undisputed Facts (“Def.’s Facts”) at 23 ¶ 1, ECF No. 13.

For some time before this date, L.R.L. showed signs of poor behavior and low functioning in a

private day care facility. AR at 11. Three evaluations conducted at the Children’s National

Medical Center (“CNMC”) in 2007, 2008, and early 2009 corroborated that L.R.L. had severe

developmental, speech, and language deficits. Id.

Between March 2009 and July 20, 2009, DCPS evaluated L.R.L. and determined that he

was eligible under the IDEA. 1 DCPS further provided him with an individualized education

program (“IEP”) for the 2009–2010 school year, when L.R.L. would be a four-year-old student. 2

AR at 11-13; Def.’s Facts ¶¶ 3-6. Also, on July 20, 2009, DCPS notified the plaintiff that she

should enroll L.R.L. at his neighborhood public school, Emery Elementary School, for

kindergarten. AR at 13; Def.’s Facts ¶ 8; Pl.’s Statement of Material Facts (“Pl.’s Facts”) ¶ 4,

ECF No. 12-3. When the plaintiff tried to enroll L.R.L. at the school, however, she was rejected

and DCPS did not provide an alternative placement. AR at 13. Consequently, for the 2009–10

school year, the plaintiff “was forced to register” L.R.L. at Community Academy Public Charter

School (“CAPCS”), which is located within the District of Columbia and acts as its own LEA for

the purposes of the IDEA. 3 AR at 13; Def.’s Facts ¶ 9.

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As part of its evaluation, DCPS performed speech and language, developmental and occupational therapy
assessments. Def.’s Facts ¶ 3–4. Nonetheless, the plaintiff’s due process complaint alleges that DCPS “failed to
fully and comprehensively evaluate [L.R.L.] in all areas of his disability.” AR at 12.
2
The IEP developed by DCPS for L.R.L. in July, 2009 prescribed five hours per week of specialized instruction,
one hour per week of occupational therapy, one hour per week of speech and language services, and thirty minutes
per week of counseling services. AR 12–13; Def.’s Facts ¶ 7.
3
DCPS is the other relevant LEA for purposes of this case.

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 Upon L.R.L.’s enrollment, CAPCS implemented the original IEP devised by DCPS but

found that L.R.L. needed further assistance. AR at 13. In accordance with the DCPS IEP,

CAPCS provided L.R.L. one hour per week of speech and language services, one hour per week

of occupational therapy services, and thirty minutes per week of behavioral support services, but

increased L.R.L.’s services from five to twenty hours per week of specialized instruction and,

while not prescribed in the DCPS IEP at all, provided L.R.L with a dedicated aide to assist with

his behavior. Id. L.R.L. continued to attend CAPCS during the 2010–11 school year. Id.

Mid-way through the 2010-11 school year, on January 27, 2011, the plaintiff filed a due

process complaint against DCPS alleging that L.R.L. had been denied a free appropriate public

education (“FAPE”) due to the defendant’s failure (1) to identify L.R.L. pursuant to the District’s

Child Find obligations, (2) to evaluate L.R.L. timely, fully, and comprehensively in all areas of

his disability; (3) to develop an appropriate IEP for L.R.L. for the 2009–2010 school year, and

(4) to provide an appropriate or accessible educational placement for the 2009–2010 school year.

AR at 13–14. The plaintiff requested relief of compensatory education through placement and

funding in a private, full-time special education school. AR at 14.

The matter was referred to a Hearing Officer, who dismissed the complaint less than a

month after the complaint was filed and before holding the due process hearing. AR at 3

(Hearing Officer Determination (“HOD”)). The Hearing Officer acknowledged the plaintiff’s

argument that enrollment in CAPCS “would not have been necessary if [DCPS] had not denied

the Student a FAPE,” and conceded that she “took a totally appropriate approach when faced

[with] what she perceived to be inadequacies in the Student’s education program” and “enrolled

him in a public charter school.” AR at 2 (HOD). Nevertheless, the Hearing Officer concluded,

“as a matter of law,” that L.R.L. was a “LEA child” of CAPCS and not of DCPS, within the

meaning of applicable District of Columbia Municipal Regulations, “because the Student does

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not currently attend any of the [DCPS]’s schools, did not attend any of the [DCPS]’s schools

when the hearing was requested, and was not placed in another LEA by the [DCPS].” AR at 2

(HOD). The Hearing Officer reasoned that the purpose of IDEA is to ensure that students with

disabilities are receiving a FAPE, something which L.R.L. is presumably receiving at CAPCS

and, therefore, the plaintiff was precluded under D.C. Municipal Regulations, Title 5-E,

§ 3029.1, from seeking a remedy against DCPS. AR at 1–2 (HOD).

The plaintiff thereafter filed the instant lawsuit, on May 12, 2011, challenging the

Hearing Officer’s dismissal of her due process complaint. The Court referred the case to the

Magistrate Judge for full case management, pursuant to Local Civil Rule 72.3(a). Order, dated

Oct. 19, 2011, ECF No. 8. Following the filing of the administrative record and cross motions

for summary judgment, the Magistrate Judge issued his Report and Recommendation (“R&R”)

on April 19, 2012, ECF No. 19, recommending denial of the defendant’s motion, grant of the

plaintiff’s motion, reversal of the Hearing Officer’s Dismissal Order and remand to the Hearing

Officer for further proceedings. R&R at 9. The defendant filed timely objections, ECF No. 20,

which are currently before the Court.

II. STANDARDS OF REVIEW

A. De Novo Review of Magistrate Judge’s Report and Recommendation

When, as here, the Court has referred a case for full case management, the Magistrate

Judge determines all motions and matters that arise in the case, except for those matters specified

in Local Civil Rule 72.3, for which the Magistrate Judge will report proposed findings of fact

and a recommendation for disposition. LCvR 72.3. This Local Civil Rule is consistent with

Federal Rule of Civil Procedure 72(b), which provides for the referral of a pretrial matter

“dispositive of a claim or defense” to a Magistrate Judge to hear and make a “recommended

disposition.” FED. R. CIV. P. 72(b); see also LCvR 72.3(a)(3) (“At the request of the district

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judge to whom the case is assigned, a magistrate judge may . . . submit . . . proposed findings of

fact and recommendations for the disposition of . . . motions for summary judgment . . . .”).

Upon submission of the Magistrate Judge’s recommended disposition, a “district judge shall

make a de novo determination of those portions of a magistrate judge’s findings and

recommendations to which [an] objection is made,” based upon the record before the Magistrate

Judge or based upon further evidence that the district judge may receive in a new heearing.

LCvR 72.3(c); see also Davis v. U.S. Dep’t of Labor, 844 F. Supp. 2d 92, 95 n.3 (D.D.C. 2012)

(“Review under Local Civil Rule 72.3 would require a more searching analysis under the de

novo standard.”); Brodie v. Worthington, No. 09-1828, 2011 U.S. Dist. LEXIS 107422, at *3 n.2

(D.D.C. Sept. 21, 2011) (same).

B. Summary Judgment Standard of Review of IDEA Hearing Officer Decision

The parties in this case are seeking cross-motions for summary judgment based upon the

administrative record available to an IDEA Hearing Officer. 4 The IDEA “establishes various

procedural safeguards that guarantee parents both an opportunity for meaningful input into all

decisions affecting their child's education and the right to seek review of any decisions they think

inappropriate.” District of Columbia v. Doe, 611 F.3d 888, 890 (D.C. Cir. 2010) (quoting Honig

v. Doe, 484 U.S. 305, 311–12, (1988)). Any party aggrieved by a decision of a due process

hearing officer under the IDEA may appeal the findings and decision to any state court or a

United States district court. 20 U.S.C. § 1415(i)(2). The party challenging the administrative

decision has the burden of proving deficiencies in the administrative decision by a

preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)(iii). When evaluating an appeal of an

administrative decision, a court “(i) shall receive the records of the administrative proceedings;

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The plaintiff supplemented the record with psychological and other evaluations of L.R.L. conducted in January and
February, 2011, that were not part of the administrative record. Pl.’s Mot. Summ. J. Ex. A, ECF No. 12-5. The
Court does not rely on this supplemental material in deciding the pending motions for summary judgment.

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(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). “Federal courts have interpreted ‘appropriate relief’ to include

compensatory education as an equitable remedy to be granted upon finding that a child has been

denied FAPE under the Act.” Flores v. District of Columbia, 437 F. Supp. 2d 22, 30 (D.D.C.

2006) (quoting Diatta v. District of Columbia, 319 F. Supp. 2d 57, 64 (D.D.C. 2004)).

Although seeking judicial review of an administrative agency’s decision by way of a

summary judgment motion “is permissible under the IDEA, it is not a true summary judgment

procedure. Instead, the district court essentially conduct[s] a bench trial based on a stipulated

record.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993); see also S.B. v.

District of Columbia, 783 F. Supp. 2d 44, 50 (D.D.C. 2011) (“As no new evidence has been

submitted here, the Court will treat the parties’ cross motions for summary judgment as motions

for judgment based on the administrative record.”). In other words, rather than applying the

typical standard applicable to a summary judgment motion, which may be granted “if the movant

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); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247 (1986); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011); Tao

v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994), the Court in an IDEA case conducts a summary

adjudication. Phillips v. District of Columbia, 736 F. Supp. 2d 240, 246 (D.D.C. 2010) (“If no

additional evidence is introduced by the parties in a civil suit seeking review of an administrative

decision, a motion for summary judgment operates as a motion for judgment based on the

evidence comprising the record.”) (alterations and internal quotation marks omitted) (quoting

Thomas v. District of Columbia, 407 F. Supp. 2d 102, 109 (D.D.C. 2005)); District of Columbia

v. Ramirez, 377 F. Supp. 2d 63, 66–67 (D.D.C. 2005); see also Hanson v. Smith, 212 F. Supp. 2d

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474, 480–81 (D. Md. 2002).

The court must resolve factual disputes based upon its own de novo review of the record

and evaluation of the preponderance of the evidence, giving “due weight” to the factual findings

of the IDEA Hearing Officer, depending upon the thoroughness and reasonableness of the

administrative proceedings. See Doe, 611 F.3d at 897; see also 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., 336

F.3d 260, 270 (3d Cir. 2003)). Where, as here, the administrative decision to reject the parent’s

claim for a due process hearing was predicated solely on the Hearing Officer’s legal

interpretation of applicable law, without consideration otherwise of the merits of the plaintiff’s

due process complaint, that decision is entitled to no deference since “the court draws its own

legal conclusions de novo.” Alexis v. Bd. of Educ., 286 F. Supp. 2d 551, 556 (D. Md. 2003)

(“The hearing officer’s conclusions of law, however, merit no such deference.”).

III. DISCUSSION

At the outset, the Court notes that the issue presented is not the plaintiff’s substantive

claim whether L.R.L. has been denied a FAPE such that the defendant should be made to provide

compensatory education as a remedy. Rather, the issue is whether the plaintiff has “the right to a

hearing” on a claim for compensatory education against a LEA when the student is no longer

enrolled in the LEA from which redress is sought. See AR at 2 (HOD). The defendant contends

that the Hearing Officer correctly ruled that the IDEA “prevents a due process complaint against

a former LEA by a student enrolled in a subsequent LEA.” Def.’s Objection at 2, ECF No. 20.

For the reasons set forth below, the Court disagrees and finds, consistent with the R&R, that

dismissal of L.R.L.’s due process complaint was legal error.

The defendant characterizes this issue as one of “first impression in this Circuit,” and

objects that the Magistrate Judge’s recommendation improperly construed the applicable

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statutory and regulatory provisions. Id. at 1–2. Specifically, the defendant argues that when 20

U.S.C. § 1415(b)(6) of the IDEA, which requires an LEA to provide an opportunity to challenge

IDEA matters, is read in context with other IDEA provisions and “in conjunction with D.C.

Mun. Regs. Title 5 3029.1, it is clear that a parent may only bring a due process complaint

against their current LEA, not their former LEA.” Id. at 2. The Court first considers the

defendant’s objections to the Magistrate Judge’s construction of the applicable statute and then

turns to the case law from other jurisdictions addressing this issue.

A. Contrary to Defendant’s Position, 20 U.S.C. § 1415 and Municipal
Regulations Do Not Restrict Due Process Complaints to a Student’s Current
LEA

The defendant argues vehemently that a due process “complaint can only be filed against

the LEA that is currently providing the student with an educational placement,” id. at 4, based

upon (1) a plain reading of 20 U.S.C. § 1415(a) and (b)(6), and D.C. Municipal Regulation, Title

5-E § 3029.1; (2) the operation of related IDEA provisions, including procedures for the due

process hearing under 20 U.S.C. § 1415(c)(2)(B), the resolution process under § 1415(f), and the

“stay-put” provision under § 1415(j); and (3) the public policy against permitting a current LEA

to avoid its statutory responsibility to provide the student a FAPE by allowing suit against a

former LEA. The merits of these objections are addressed seriatim below.

1. 20 U.S.C. § 1415(a) and (b)(6) and D.C. Municipal Regulation, Title 5-E
§ 3029.1

The defendant correctly notes that construction of a statute begins with its plain and

unambiguous meaning, in the context of the overall statutory scheme. Id. at 2 (citing United

States v. Braxtonbrown-Smith, 278 F.3d 1348, 1352 (D.C. Cir. 2002) and United States v.

Wilson, 290 F.3d 347, 352 (D.C. Cir. 2002)); see also Friends of Blackwater v. Salazar, 2012

U.S. App. LEXIS 17304, at *33, 40 (D.C. Cir. Aug. 17, 2012) (“As in all statutory construction

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cases, the court must begin with the language of the statute [and] must not confine itself to

examining a particular statutory provision in isolation.” (citations and internal quotation marks

omitted)). The IDEA scheme, in brief, requires that states and LEAs receiving federal

educational assistance establish “policies and procedures to ensure,” among other things, that a

“free appropriate public education,” or “FAPE,” is available to disabled children. 20 U.S.C.

§ 1412(a)(1)(A); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005).

The D.C. Circuit has stressed that

School districts may not ignore disabled students’ needs, nor may they await
parental demands before providing special instruction. Instead, school systems
must ensure that all 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.

Reid, 401 F.3d at 518–19 (internal quotation mark omitted) (citing 20 U.S.C. § 1412(a)(3)(A)).

To ensure a FAPE, the law further requires that an “individualized education program,” or

“IEP,” be developed, pursuant to 20 U.S.C. §§ 1412(a)(4) and 1414(d), that sets out a disabled

child’s individually tailored goals and the means of achieving them. Doe, 611 F.3d at 892 n.5.

Furthermore, if no public school is available to provide sufficient support services to ensure a

FAPE for the child, then the school system “must pay the costs of sending the child to an

appropriate private school.” Reid, 401 F.3d at 518–19 (quoting Jenkins v. Squillacote, 935 F.2d

303, 305 (D.C. Cir. 1991)); Branham v. Gov’t of the District of Columbia, 427 F.3d 7, 8–9 (D.C.

Cir. 2005). Finally, where an LEA with responsibility for providing a FAPE has failed to

comply with procedural safeguards guaranteed to both a disabled student and his or her parents,

or failed to provide a FAPE, then the student and the parents are authorized, following

exhaustion of administrative remedies, to seek relief in federal district court. 20 U.S.C.

§ 1415(i)(2)(A). The district court has broad discretion to “grant such relief as the court

determines is appropriate.” Id. § 1415(i)(2)(C).

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 According to the defendant, the IDEA provision requiring an LEA to establish and

maintain procedures ensuring “children with disabilities and their parents are guaranteed

procedural safeguards with respect to the provision of a [FAPE] by such agencies,” id. § 1415(a),

applies only to the LEA “required to provide a FAPE.” Def.’s Objection at 2–3. Citing the

purpose of the IDEA set forth in 20 U.S.C. § 1400(d), “to ensure that all children with

disabilities have available to them a [FAPE],” the defendant contends that the statute’s use of the

“present tense” ensures “that children with disabilities have in the present tense, not had in the

past tense, FAPE available to them.” Id. at 3.

The defendant’s argument is specious. Of course, the overarching purpose of the IDEA

is to provide a current FAPE to students with disabilities, but the defendant’s focus on the

present tense of the language ignores the broad remedial reach of the law. The IDEA sets forth

stringent procedural safeguards to permit disabled children and their parents to seek redress from

an LEA that is currently or has in the past, failed to fulfill its statutory responsibilities. Indeed,

to remedy past failures, district courts have broad power to grant equitable relief, including

compensatory relief, to remedy past failures by an LEA. Reid, 401 F.3d at 518

(“[C]ompensatory awards should aim to place disabled children in the same position they would

have occupied but for the school district's violations of IDEA.”). Thus, LEAs have been

required to provide compensatory relief to vindicate a student’s substantive right to receive a

FAPE and to compensate the student for past deprivations of educational opportunity, including

where the student is no longer eligible for IDEA benefits. See, e.g., Schaffer ex rel. Schaffer v.

Weast, 546 U.S. 49, 55 (2005) (claim seeking reimbursement for past education expenses is not

moot even if the student has graduated from high school); Zobrest v. Catalina Foothills Sch.

Dist., 509 U.S. 1, 5 n.3 (1993) (lawsuit in which plaintiff sought IDEA reimbursement, even

though he had already graduated from high school, was not moot); Ferren C. v. Sch. Dist., 612

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F.3d 712, 718 (3d Cir. 2010) (“[I]ndividual over [age 21] is still eligible for compensatory

education for a school district’s failure to provide a FAPE prior to the student turning twenty-

one. A court may grant compensatory education in such cases through its equitable power . . . .”

(citation omitted)); Garcia v. Bd. of Educ., 520 F.3d 1116, 1124 (10th Cir. 2008) (“[E]ven if a

student is ineligible going forward under IDEA, seeking backward-looking relief to make up for

past deprivations also seems entirely appropriate.”). It would turn the statutory purpose on its

head to exempt from the “guaranteed procedural safeguards” and obligation to provide a FAPE,

any LEA that has so failed in fulfilling its statutory responsibilities that a parent is forced to

remove a disabled child to another LEA. In fact, the IDEA contemplates the possibility of such

failing LEAs and, for example, requires an LEA to provide tuition reimbursement as

compensation when a parent enrolls a disabled child in a private school due to the LEA’s

deficiencies in providing a FAPE. See 20 U.S.C. § 1412(a)(10).

Similarly, 20 U.S.C. § 1415(b)(6) does not restrict a due process challenge to the current

LEA, as the defendant urges. This IDEA provision requires that an LEA provide “[a]n

opportunity for any party to present a complaint . . . with respect to any matter relating to the

identification, evaluation, or education placement of the child, or the provision of a [FAPE] to

such child.” 20 U.S.C. § 1415(b)(6)(A). The provision does not indicate that the “matter” must

pertain to activities of the current LEA, and thereby limit the respondent in a due process

complaint to the current LEA. On the contrary, the only restriction contained in this statutory

provision is a limitations period that the due process complaint must “set[] forth an alleged

violation that occurred not more than 2 years before the date the parent or public agency knew or

should have known about the alleged action that forms the basis of the complaint, or . . . in such

time as the State law allows, [with certain] exceptions.” Id. § 1415(b)(6)(B). In other words,

any LEA that provided services under the IDEA within two years (or as provided by the State

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limitations period) of the filing of the due process complaint may be called upon to respond to

deficiencies in those services. Thus, this provision simply cannot be read to limit due process

challenges against a former LEA when the challenge is filed within the limitations period

allowed by the statute or State law.

The defendant further argues that the D.C. Municipal Regulation, Title 5-E § 3029.1

supports its position that a due process complaint may only be filed against a single LEA with

the current responsibility of providing a FAPE to the complaining student. Def.’s Objection at 3.

This regulation implements the procedural safeguards for an impartial due process hearing

statutorily required by 20 U.S.C. § 1415(a), (b)(6) and (f), and provides that:

A parent of a LEA child or the LEA has the right to initiate a hearing, when
there is a dispute about the eligibility, identification, evaluation,
educational placement, or the provision of FAPE to a child with a
disability, in accordance with 20 U.S.C. § 1415(f).

D.C. MUN. REGS. tit. 5-E, § 3029.1 (2012).

The defendant points to “[u]se of the singular ‘the LEA’,” in this regulation as an

indication that it bars “claims against multiple parties, or that both former and current LEAs

could initiate a hearing under the regulation.” Def.’s Objection at 3. The defendant rests its

argument on too weak an article, definite though it may be. The only import of the designation

in the regulation of “the LEA” is that only the LEA that is involved in “a dispute about . . . the

provision of FAPE,” has the right to be named in a due process complaint or to initiate such a

complaint. This regulation does not specify, however, when the due process complaint must be

filed and, thus, is not limited only to an LEA when the student is currently enrolled there. As the

Magistrate Judge correctly noted, “if the District of Columbia wanted to limit parties’ ability to

initiate hearings, it could have added language to the Regulation to that extent.” R&R at 7.

The defendant’s cramped construction of D.C. Municipal Regulation, Title 5-E § 3029.1

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is also not supported by review of the evolution of these regulations. This provision was enacted

for the first time in 2003 as part of a comprehensive revision of the special education chapter in

title 5 of the D.C. Municipal Regulations. See Notice of Final Rulemaking, Feb. 28, 2003, 50

D.C. Reg. 1854 (replacing “Chapter 30 of the Board Rules, Title 5 of the D.C. Municipal

Regulations regarding special education” with new Chapter 30). At the same time, new Chapter

30 also included other regulations that expressly contemplated the involvement of more than a

single LEA in the provision of a FAPE to a student. Id. For example, the 2003 regulations

provided that when a disabled child is enrolled in “more than one LEA during the applicable

period for assessment and placement, the LEAs are jointly responsible for the child’s evaluation

and, if necessary, IEP and placement.” D.C. MUN. REGS. tit. 5-E § 3019.6 (2003). It follows that

should both LEAs fall short of fulfilling their joint responsibility, both would be subject to due

process complaints under D.C. Municipal Regulation, Title 5-E § 3029.1. Indeed, the 2003

regulations required LEA Charter schools to provide their own representation at due process

hearings involving children enrolled at their school “unless implementation of the . . . decision is

the responsibility of DCPS as a result of any actions or inactions of DCPS while a child had been

enrolled at an LEA Charter,” suggesting that DCPS could be involved at a due process hearing

for a child enrolled in an LEA charter school. D.C. MUN. REGS. tit. 5-E § 3019.13 (2003). In

short, these provisions enacted at the same time as § 3029.1 make clear that the defendant reads

too much into the words “the LEA” as limiting the right to a due process hearing only to a single,

current LEA.

2. The Operation of Other IDEA Provisions Does Not Restrict Due Process
Complaint to Current LEA

The defendant turns to several other IDEA provisions to bolster its argument that

allowing a due process challenge against a former LEA “does not make sense.” Def.’s Objection

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at 4. In particular, the defendant notes that, under the IDEA, an LEA facing a due process

challenge is required to send a prior written notice about whether it proposes or refuses to take an

action, 20 U.S.C. § 1415(c)(1)(B), and participate in a resolution process with members of the

student’s IEP Team, 20 U.S.C. § 1415(f)(1)(B). This IEP Team is required to include certain

individuals, such as the student’s current regular and special education teacher. 20 U.S.C.

§ 1414(d)(1)(B). According to the defendant, a former LEA would be unable to comply with

these requirements because it cannot “require the new LEA’s IEP team to take any action with

respect to the current provision of FAPE to the child” nor require the attendance at the required

resolution meeting with teachers “employed by another LEA.” Def.’s Objection at 5. This leads

the defendant to the conclusion that the IDEA does not contemplate due process challenges

against a former LEA.

This conclusion is strained. As noted above, the plain language of the statutory and

municipal regulations governing the procedures for due process challenges do not bar such

challenges against a former LEA for deficiencies in that LEA’s provision of a FAPE.

Furthermore, “[r]eading the IDEA as a whole and not piecemeal,” as the defendant urges, Def.’s

Objection at 6, demonstrates that the statute contemplates the potential involvement of both

current and former LEAs in the IEP process and provision of a FAPE. For example, when

disabled students transfer schools within the same State or outside the State, the IDEA outlines

procedures for implementation of the IEP in the new LEA and requires “the previous school in

which the child was enrolled to take reasonable steps to promptly respond” to requests for the

transmittal of records from the previous school. 20 U.S.C. § 1414(d)(2)(C)(ii).

Similarly, in the District of Columbia, Municipal Regulations contain express directions

about the involvement of both a former and current LEA in ensuring a FAPE to a disabled child.

For example, when a child with a disability transfers between an LEA Charter school and DCPS,

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the regulations require that “the sending LEA [] provide a copy of the child’s records to the

receiving LEA,” D.C. MUN. REGS. tit. 5-E § 3019.5(a); that both the sending and receiving LEAs

“shall cooperate fully in the transfer of all child records,” id. § 3019.5(b); that the “sending LEA

shall cooperate fully to ensure all relevant information follows a child to his or her new school,”

id. § 3019.5(c); and that when an LEA Charter does not have available services for an enrolled

child’s IEP, those services “may be arranged through an agreement with another LEA,” id.

§ 3019.7. Moreover, local regulations also contemplate that a former LEA may continue to have

responsibilities to a child who has transferred to a new LEA, and require that a former LEA

implement any obligations under a HOD or Settlement Agreement (“SA”) even when the child

has transferred to a new LEA. Id. § 3019.10(a) (“[T]he new LEA . . . shall cooperate with the

LEA bound by the HOD or SA . . . . The responsibility for implementation of the HOD or SA

shall remain at all times with the LEA that was a party to the HOD or SA.”). Thus, despite the

logistical hurdles cited by the defendant as grounds to limit due process challenges only to a

current LEA, the applicable statutory schemes call upon both former and current LEAs to

cooperate and overcome them.

Finally, the defendant cites the “stay-put” provision in 20 U.S.C. § 1415(j) in support of

its position. Def.’s Objection at 4. This provision provides, in pertinent part, that during the

pendency of administrative and judicial proceedings, “the child shall remain in the then-current

educational placement,” unless the parents consent to an alternative placement. 20 U.S.C.

§ 1415(j). According to the defendant, “it does not make sense that a complaint filed against a

former LEA should require a current LEA to maintain the student’s current educational

placement,” and therefore, this provision supports the defendant’s contention that “a complaint

can only be filed against the LEA that is currently providing the student with educational

placement.” Id. This argument is also specious.

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 The stay-put provision requiring a student to “remain in the then-current educational

placement” or “be placed in the public school program” applies to two situations: when disputes

arise against a current LEA or when parents have applied for initial admission to a public school,

respectively. See 20 U.S.C. § 1415(j). The provision simply does not apply when, as here, a due

process challenge is filed against a former LEA where the student is no longer enrolled.

Furthermore, the defendant’s use of the stay-put provision as a sword against a disabled student

is ironic since this provision was intended to be a shield for a student whom a school district

seeks to exclude without making efforts for appropriate changes to an IEP. See Honig, 484 U.S.

at 327 (noting that “one of the evils Congress sought to remedy was the unilateral exclusion of

disabled children by schools . . . and one of the purposes of [the stay-put provision], therefore,

was ‘to prevent school officials from removing a child from the regular public school classroom

over the parents’ objection pending completion of the review proceedings.’” (quoting Burlington

Sch. Comm. v. Mass. Dep’t of Educ., 471 U.S. 359, 373 (1985))). Indeed, the defendant’s

reliance on the stay-put provision in this case could be considered doubly ironic since the

defendant did not allow L.R.L. to have a “current educational placement” in DCPS when it

designated him to a school that would not enroll him and left the plaintiff to find alternative

placement for L.R.L. on her own. If the plaintiff had not enrolled L.R.L. in another school, the

student would have been without a FAPE in any form for the time period required to exhaust the

administrative process and obtain an alternative placement from DCPS. While that status quo

would have eliminated the current legal quandary posed by L.R.L.’s enrollment in another LEA,

it would clearly not have been in the best interests of the child or the parent.

In sum, a plain reading of 20 U.S.C. § 1415(a) and (b)(6) and D.C. Municipal

Regulations, Title 5-E § 3029.1, does not support the defendant’s argument. Instead, these

statutory provisions make clear that disabled children and their parents are guaranteed the

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procedural safeguard of filing a due process complaint against an LEA with whom they dispute

the sufficiency of a FAPE provided by that LEA. The fact that the student is no longer enrolled

with the LEA is of no consequence.

B. The Majority of Courts Permit Due Process Challenges Seeking
Compensatory Relief Against Former LEAs

The defendant relies heavily on the reasoning of the U.S. Court of Appeals for the Eighth

Circuit to support its argument that a due process challenge may not be lodged against a former

LEA when the student and his or her parents, as in the instant case, failed to request a due

process hearing before enrolling in a new LEA. Def.’s Objection at 6 (citing Thompson v. Bd. of

the Special Sch. Dist., 144 F.3d 574, 578 (8th Cir. 1998)). To date, this is the only federal

appellate court to consider this issue. In Thompson v. Board of the Special School District, the

Eighth Circuit held that the time for filing a request for a due process hearing is while the student

remains enrolled in the school district and, “[i]f a student changes school districts and does not

request a due process hearing, his or her right to challenge prior education services is not

preserved.” 144 F.3d at 579. The court reasoned that the purpose of the due process hearing is

“to challenge an aspect of a child’s education and to put the school district on notice of a

perceived problem. Once the school district receives notice, it has the opportunity to address the

problem.” Id. In other words, that court focused on the prospective relief that might result from

the hearing, after the school district was put on notice of problems with its prior handling of a

student and given an opportunity to correct them. 5 The court did not consider a claim for

5
The defendant also cites S.N. v. Old Bridge Township. Board of Education, No. 04-517, 2006 U.S. Dist. LEXIS
83469, at *4 (D.N.J. Nov. 15, 2006), where the parents had initiated administrative proceedings while the student
was still enrolled in the defendant school district but moved out of the state while the proceedings were pending.
The court determined that the grant of compensatory education would have been impossible since the court could
not order the defendant to provide services outside the state. Id. This case is easily distinguishable since the
plaintiff in the instant matter remains a resident of the District of Columbia, where DCPS is the State Educational
Agency. In addition, other federal courts in the District of New Jersey have distinguished or otherwise declined to
follow the ruling in S.N. See, e.g., N.P. v. E. Orange Bd. of Educ., No. 06-5130, 2011 U.S. Dist. LEXIS 11171, at
*13–14 (D.N.J. Feb. 3, 2011) (finding student’s claim for compensatory education against former school district not

17
compensatory damages cognizable under the IDEA. Id. at 580 (“As to compensatory damages, a

claim ‘based upon defendants’ alleged violations of the IDEA may not be pursued in this . . .

action because general and punitive damages . . . are not available under IDEA.’” (citing

Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir. 1996)); see also M.P. v. Indep. Sch. Dist. No.

721, 326 F. 3d 975, 979 (8th Cir. 2003) (parents who removed their child from “intolerable

situation” at school where he was verbally harassed and physically assaulted by classmates, were

barred from bringing IDEA claim against the school since they did not request a due process

hearing until after removal).

The Eighth Circuit recently confirmed that a student must “request a due process hearing

before transferring from a delinquent district if the student wishes to preserve his or her right to

challenge the educational services provided by that district.” C.N. v. Willmar Pub. Sch., Indep.

Sch. Dist. No. 347, 591 F.3d 624, 631, n.6 (8th Cir. 2010). In C.N., an autistic student was

subjected to appalling mistreatment by a teacher, prompting the parent to withdraw the student

immediately and enroll her in private school for her physical and psychological safety. C.N., 591

F. 3d at 628–29. The Eighth Circuit concluded that the student’s IDEA claim failed as a matter

of law because she did not request a hearing on her claims until after leaving the public school

district. Id. at 631. District Courts within the Eighth Circuit have followed this precedent

accordingly. See, e.g., Barron ex rel. D.B. v. South Dakota, No. 09-4111, 2010 U.S. Dist.

LEXIS 105886, at *22 n.3 (D.S.D. Sept. 30, 2010) (“The Court agrees with the Defendants that

any claims brought on behalf of student[s] who have left the School for the Deaf and attended

another school district after not having requested a due process hearing for alleged violations of

the IDEA while they were students at the School for the Deaf have become moot.”). A few

moot after student moved to adjacent school district); K.B. v. Haledon Bd. of Educ., No. 08-4647, 2009 U.S. Dist.
LEXIS 55388, at *13–14 (D.N.J. June 29, 2009) (distinguishing S.N. and allowing student to obtain remedy of
independent evaluation from former school district).

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district courts outside of the Eighth Circuit have also adopted the reasoning of Thompson to bar

administrative proceedings against a former school district when those proceedings were

initiated after the student had transferred to a school outside the district. See, e.g., Steven H. v.

Duval Cnty. Sch. Bd., No. 3:99-cv-500-J-20TJC, 2001 U.S. Dist. LEXIS 25814, at *12 (M.D.

Fla. May 8, 2001) (holding that the plaintiff must commence the available administrative remedy

of a due process hearing “while the student is attending school in the public school district to

ensure that the school district is adequately notified of the alleged problem and given an

opportunity to cure it”).

Outside of the Eighth Circuit and a few other district courts, the majority of federal

district courts to consider this issue have concluded that when a student leaves a school district,

which allegedly failed to provide a FAPE, the school district may not avoid its obligations under

the IDEA and must provide a due process hearing to consider the issue of compensatory

education. Thus, district courts in Georgia, Michigan, California, and Pennsylvania have

permitted complaints to be filed against a school district even if the student is no longer enrolled.

See D.H. v. Lowndes Cnty. Sch. Dist., No. 7:11-CV-55, 2011 U.S. Dist. LEXIS 101805, at *8

(M.D. Ga. Sept. 9, 2011) (“Disabled students are guaranteed an appropriate public school

education, and if a school fails to provide this education, IDEA enables these students to be

compensated for the lack of educational opportunities. The opportunity to recover for a school

district’s violations should not be limited to the time when the student is enrolled in the school

district.”); Alexis R. v. High Tech Middle Media Arts Sch., No. 07cv830 BTM (WMc), 2009 U.S.

Dist. LEXIS 67078, at *21 (S.D. Cal. Aug. 3, 2009) (noting that a student’s claim is

“procedurally cognizable to the extent that she seeks services or reimbursement as a remedy” and

that “compensatory education services may be an appropriate remedy even though [plaintiff] is

no longer a student in Defendants’ schools” and did not bring the claim until leaving the school

19
district); Grand Rapids Pub. Sch. v. P.C. & T.C. ex rel. D.C., 308 F. Supp. 2d 815, 817–18

(W.D. Mich. 2004) (allowing a student to bring a claim after changing districts because of the

remedial intent of IDEA); Lewis Cass Intermediate Sch. Dist. v. M.K. ex rel. J.K., 290 F. Supp.

2d 832, 838 (W.D. Mich. 2003) (noting “that while a school district typically has no continuing

obligation to provide FAPE to the child of a parent who has moved out of the district, a school

district nonetheless may be required to compensate a student for any IDEA violations that

occurred before the move,” and finding that there is “no reason that a district court should deny a

student his right to a due process hearing regarding compensatory educational services simply

because the student requested his hearing after, rather than prior to, moving from the district”);

Neshaminy Sch. Dist. v. Karla B. ex rel. Blake B., No. 96-3865, 1997 U.S. Dist. LEXIS 3849, at

*13–18 (E.D. Pa. Mar. 20, 1997) (permitting a student's claim for compensatory relief to move

forward, even though he moved out of defendant school district before filing his request for a

due process hearing).

In Neshaminy School District, the plaintiff school district (equivalent to an LEA in the

instant case) sought summary judgment on the grounds that, inter alia, the defendant student’s

claims alleging IDEA violations were moot because the student had changed districts when she

had transferred to a different school. 1997 U.S. Dist. LEXIS 3849, at *5–6. The plaintiff school

district argued that it was no longer under an obligation to provide the student with a FAPE or

compensatory education. Id. at *13–14. The court found this argument to be unavailing, stating

that “[i]n order to effectuate a disabled student’s right to a FAPE . . . compensatory education

must be available for a student who has moved from the school district after he has already been

deprived of a FAPE.” Id. at *15. Otherwise, the court explained,

a school district could simply stop providing required services to a student
with the underlying motive of inducing this student to move from the district,
thus removing any future obligation under IDEA which the district may owe

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 to the student. Such a result would frustrate the purposes of IDEA in that a
student would be denied his right to a FAPE. Surely, Congress, in creating
and ensuring a disabled student's right to public education, would not allow a
school district to suspend the educational rights of a disabled child without a
remedy.

Id. at *16; accord Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 583 F.

Supp. 2d 169, 172 & n.3 (D.D.C. 2008) (rejecting former school’s argument that it was not

responsible for a new evaluation, stating “[i]f the Court decided that a school was not required to

pay for a new evaluation of a student, who may have been deprived of a FAPE, because a few

years had passed since the student was enrolled in that school, the right to a compensatory

education becomes meaningless” (citing Neshaminy, 1997 WL 137197, at *6)).

The reasoning of and policy argument advanced by the Neshaminy court are persuasive,

and this Court will therefore follow the majority view on this issue. If an LEA’s IDEA

obligations were extinguished upon a student leaving the LEA, parents would be placed in the

untenable situation of choosing between the lesser of two evils: either leaving their child in an

unsatisfactory situation while waiting for a lengthy administrative appeals process to play out in

order to preserve their right to compensatory education as a remedy, or remedying the situation

immediately by moving the child to a new LEA while forfeiting any right they had to an

administrative review and any subsequent compensatory education. The Court is not prepared to

place that burden on parents. Similar to the defendant student and parents in Neshaminy, L.R.L.

and his mother “have a concrete interest in seeking to redress an injury which they suffered in

the past.” Neshaminy, 1997 U.S. Dist. LEXIS 3849, at *17. L.R.L and his mother “merely seek

to . . . redress their alleged injury which arose when [the school district] allegedly violated [the

child]’s right to a FAPE at a time when [the school district] was required under the law to

provide [the child] with a FAPE.” Id.

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 The Court finds the defendant’s counter policy argument unavailing. The defendant

argues that “[a]llowing such a claim to proceed would permit the current LEA to avoid its

statutory responsibility to provide the student a FAPE.” Def.’s Objection at 7. In support of this

argument, the defendant states that the “[p]laintiff in this case has plainly alleged that the current

LEA is not providing FAPE to the student, but attempts to blame that failure on the student’s

former LEA, DCPS.” Id. at 8. This contention is a last-gasp effort to divert attention from the

allegations against the defendant to possible claims that the plaintiff might have, but has not,

asserted against the current LEA. This diversion will not work. The plaintiff has not alleged an

IDEA violation against its current LEA, CAPCS, and this Court will not evaluate claims that

have not been made.

The Court holds that a disabled student and his parent cannot be denied an IDEA-

mandated administrative review of his due process claim seeking compensatory relief for denial

of a FAPE by a former LEA, which is responsible for the alleged failures. Thus, the plaintiff’s

due process complaint against the defendant, which allegedly provided a deficient IEP and

educational placement for her disabled child in the 2009–2010 school year, is cognizable under

the IDEA and applicable D.C. Municipal Regulations, even though the plaintiff did not file the

complaint until after she had already enrolled the child in the current LEA. No determination

has been made about L.R.L.’s substantive claims: namely, whether L.R.L. was denied a FAPE

due to the defendant’s failure to fulfill its Child Find obligations; to timely, fully, and

comprehensively evaluate him in all areas of his disability; to develop an appropriate IEP for the

relevant school year; and to provide an appropriate and educational placement. Making those

determinations, in the first instance, is the job of a Hearing Officer during the administrative

proceedings.

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IV. CONCLUSION

For the foregoing reasons, the defendant’s objections to the Magistrate Judge’s Report

and Recommendation are OVERRULED. Upon consideration of the Magistrate Judge’s Report

and Recommendation and the record of the case, the Court adopts the Magistrate Judge’s Report

and Recommendation. The plaintiffs’ Motion for Summary Judgment, ECF No. 12, is

GRANTED; the defendant’s Cross-Motion for Summary Judgment, ECF No. 14, is DENIED;

and this case is remanded for a prompt due process hearing before an IDEA Hearing Officer.

An appropriate Order accompanies this Memorandum Opinion.

DATE: October 9, 2012

/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge

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