UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
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DISTRICT OF COLUMBIA, )
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Plaintiff, )
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v. ) Civ. Action No. 10-456 (EGS)
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DIANNE NELSON, )
Guardian and next )
friend of C.P., a minor, )
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Defendant. )
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MEMORANDUM OPINION
Plaintiff District of Columbia brings this action under the
Individuals with Disabilities Education Act (“IDEA”) against
Dianne Nelson, the guardian and next friend of C.P., a minor,
challenging certain portions of an administrative decision
concerning the education of C.P. Pending before the Court are
the parties’ cross-motions for summary judgment. Upon
consideration of the motions, the responses and replies thereto,
the applicable law, the entire record, and for the reasons set
forth below, plaintiff’s motion for summary judgment is hereby
GRANTED, and defendant’s cross-motion for summary judgment is
hereby DENIED. The Court concludes that the hearing officer’s
decision is contrary to the IDEA and, accordingly, the Court
hereby REMANDS this matter to the administrative hearing officer
for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
Defendant C.P. is a high school student who lives in the
District of Columbia with her mother, defendant Dianne Nelson.
Administrative Record (“AR”) at 44. C.P. suffers from Attention
Deficit Hyperactivity Disorder and has borderline cognitive
skills. AR at 7. During the 2008-2009 school year, C.P.
attended ninth grade at and received special education services
from Cesar Chavez Public Charter School. District of Columbia
Public Schools (“DCPS”) was the relevant Local Education Agency
for the Charter School and supervised C.P.’s special education
services.
At issue in the instant case is the December 21, 2009
determination issued by an independent hearing officer in
response to a complaint filed by Nelson regarding C.P.’s
individual education plan (“IEP”). In her complaint before the
hearing officer, Nelson proposed a full-time special education
placement for C.P. at Accotink Academy, a private institution in
Springfield, VA that provides full-time special education
services to District of Columbia students. AR at 15. After an
evidentiary hearing was held, the hearing officer determined
that C.P. was “entitled to a full-time special education day
school in order to progress toward a duly awarded diploma” and
ordered DCPS to place C.P. at Accotink Academy at public expense
for the 2009-2010 school year. AR at 20.
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Plaintiff challenges the hearing officer’s determination
(“HOD”), specifically Paragraph Two of the order. Paragraph Two
states:
The Accotink Academy staff, with the Petitioner, shall
be responsible for the revision and implementation of
the Student’s IEP. The Respondent [DCPS] shall remain
responsible for the supervision and cost of the
special education and related services provided to the
Student, ensuring that sufficient education and
supports are provided for the Student to permit her to
graduate with a diploma no later than the semester
ending following her 21st birthday. Respondent staff
shall have no authority to object to the special
education and related services provided unless there
is clear data indicating the Student is not making
sufficient progress and Accotink Academy is unwilling
or unable to alter the program to effectively address
any lack of expected progress. Thus, if the Student is
not making sufficient progress toward a diploma, the
Respondent may make a change in location to a
comparable full-time special education day school,
with two weeks[’] notice to the Petitioner and
Accotink Academy, pursuant to 34 C.F.R. § 300.503. If
Accotink Academy fails to adhere to due process
requirements as directed by this order or the
Respondent, the Respondent may make a change in
location following the due process requirements just
described.
AR at 20-21. Plaintiff asserts that this paragraph “contains
language that is erroneous as a matter of law that must be
stricken to permit full compliance with the [IDEA].” Pl.’s Mot.
1.
II. STATUTORY FRAMEWORK
The purpose of the IDEA is “to ensure that all children
with disabilities have available to them a free appropriate
public education [“FAPE”] that emphasizes special education and
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related services designed to meet their unique needs and prepare
them for further education, employment, and independent
living . . . .” 20 U.S.C. § 1400(d)(1)(A). A “free
appropriate public education” must be “sufficient to confer some
educational benefit.” Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 200 (1982). Parents or guardians
may “present a complaint 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.” 20 U.S.C. § 1415(b)(6)(A). Following a parent’s
due process complaint, an independent hearing officer determines
whether the student received a free appropriate public
education. See id. § 1415(f)(3)(E)(i). After the hearing,
“[a]ny party aggrieved by the findings and decision . . . shall
have the right to bring a civil action with respect to the
complaint presented . . . .” Id. § 1415(i)(2)(A).
Under the IDEA, the hearing officer’s decision is afforded
“less deference than is conventional in administrative
proceedings.” Reid v. Dist. of Columbia, 401 F.3d 516, 521 (D.C.
Cir. 2005). However, while a court must “engage in a more
rigorous review of the decision below than is typical in
administrative cases,” a court should “nevertheless accord the
Hearing Officer’s decision due weight.” Wilson v. Dist. of
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Columbia, 770 F. Supp. 2d 270, 274 (D.D.C. 2011) (internal
citations omitted). As this Circuit has explained:
Deference to the hearing officer makes sense in a
proceeding under the Act for the same reasons that it
makes sense in the review of any other agency action -
- agency expertise, the decision of the political
branches (here state and federal) to vest the decision
initially in the agency, and the costs imposed on all
parties of having still another person redecide the
matter from scratch. But the district court’s
authority under § 1415(e) to supplement the record
below with new evidence, as well as Congress’s call
for a decision based on the ‘preponderance of the
evidence,’ plainly suggest less deference than is
conventional.
Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988).
III. ANALYSIS
DCPS asserts that it is entitled to summary judgment
because Paragraph Two conflicts with the IDEA in a number of
respects. Defendant, in its cross-motion for summary judgment,
argues that DCPS is not an “aggrieved party” under the IDEA, and
that the HOD - when read in its entirety – does not violate the
IDEA. Having carefully reviewed the HOD’s order, the parties’
arguments, and the applicable law, the Court concludes that the
HOD’s order is contrary to the IDEA. However, particularly
because the relief plaintiff has requested is the deletion of a
significant portion of the hearing officer’s order, and
recognizing that the hearing officer is better equipped to issue
a revised order in compliance with the IDEA that will ensure
that C.P. has a free appropriate public education designed to
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meet her unique needs, the Court will REMAND the matter to the
hearing officer rather than substitute its own judgment for that
of the hearing officer.
Each of the challenges raised by plaintiff to the existing
HOD are now addressed in turn.1
A. The IEP Team
First, DCPS objects to the language in the HOD stating that
the “Accotink Academy staff, with the Petitioner, shall be
responsible for the revision and implementation of the Student’s
IEP.” AR at 20. Plaintiff asserts that this provision is “100%
contrary to IDEA and must be reversed because DCPS, as the
[Local Education Agency], is required to be a member of this
student’s IEP team.” Pl.’s Mem. 9-10. Plaintiff argues that
the HOD’s order “not only improperly delegates full authority
over C.P.’s IEP to Accotink and C.P.’s mother, by implication,
it also improperly enjoins DCPS from exercising its rights and
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As a threshold issue, defendant claims that DCPS is not an
“aggrieved party” within the meaning of § 1415(i)(2)(A) and
therefore may not bring a civil action. In particular,
defendant asserts that DCPS is not an aggrieved party because
DCPS is not restricted or prevented from carrying out its
obligations under the IDEA if the HOD is read in its entirety.
The Court finds this argument wholly unpersuasive. DCPS
asserts, and the Court agrees, that the HOD “imposed specific
obligations upon DCPS that are contrary to IDEA and which place
DCPS in the untenable position of having to choose between
compliance with the law or compliance with the HOD.” Pl.’s Opp.
9.
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responsibilities to this student to participate in all aspects
of her IEP.” Pl.’s Mem. 10.
In response, defendant argues that the very next sentence
of Paragraph Two, providing in part that DCPS “shall remain
responsible for the supervision and cost of the special
education and related services provided to the Student,”
provides for a sufficient role for DCPS. In particular,
defendant asserts that “the District, the Accotink Academy
staff, the parent and the student are certainly members of the
IEP as the District remains financially responsible for C.P.’s
access to FAPE up and until the time her needs change, or the
parent and the District agree its participation is not
necessary, its attendance and participation at future meetings
is not prohibited, in fact it is mandated.” Def.’s Mem. 11.
The Court agrees with plaintiff. Section 1414(d)(1)(B)(iv)
of the IDEA requires that a representative of the local
educational agency be a member of the IEP Team, and Section
1414(d)(4)(A)(ii) states that “[t]he local educational agency
shall ensure that . . . the IEP Team . . . revises the IEP as
appropriate[.]” Id. (emphasis added). The HOD here is therefore
inconsistent with the IDEA when it states that only the private
school and the parent “shall be responsible for the revision and
implementation of the Student’s IEP.” AR at 20. The next
sentence, which does assign DCPS the responsibility of the
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“supervision and cost of the special education and related
services provided to the Student,” still fails to provide DCPS
with any role specifically as it relates to the IEP and the IEP
Team. Contrary to Nelson’s assertion, the language of the HOD
even read in its entirety does not afford DCPS the ability to
fully comply with its responsibilities under the IDEA.
B. C.P.’s Graduation
Second, DCPS objects to the HOD language stating that the
“Respondent [DCPS] shall . . . ensur[e] that sufficient
education and supports are provided for the Student to permit
her to graduate with a diploma no later than the semester ending
following her 21st birthday.” A.R. 20. DCPS argues the “free
appropriate public education” standard set forth in IDEA does
not guarantee any substantive outcome. Rather, DCPS is only
required to provide a “basic floor of opportunity.” Pl.’s Opp.
11, citing Rowley, 458 U.S. at 201. Nor, according to
plaintiff, does mere advancement from grade to grade mean that a
FAPE has necessarily been provided to C.P. Pl.’s Mem. 11. In
response to plaintiff’s objection, defendant asserts that
plaintiff has misinterpreted Rowley and that “the fact that C.P.
seeks to obtain a high school diploma furthers the purposes and
intent of the entire IDEA Act.” Def.’s Mem. 11-12.
Again, the Court agrees with DCPS. The hearing officer
erred by requiring that DCPS provide sufficient services to
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ensure C.P. graduates by the semester after her twenty-first
birthday. The District of Columbia is eligible for federal
funding under the IDEA if it “has in effect policies and
procedures to ensure. . . . free appropriate public education is
available to all children with disabilities residing in the
State between the ages of 3 and 21[.]” 20 U.S.C. § 1412(a).
The “standard of free appropriate education,” however, “does not
require an educational program to maximize the potential of
handicapped children, but mandates, more modestly, one
sufficient to confer some educational benefit.” Leonard v.
McKenzie, 869 F.2d 1558, 1561 (D.C. Cir. 1989) (internal
quotations and citations omitted). As the Supreme Court
explained in Rowley,
In passing [the IDEA], Congress sought primarily to
make public education available to handicapped
children. But in seeking to provide such access to
public education, Congress did not impose upon the
States any greater substantive educational standard
than would be necessary to make such access
meaningful. Indeed, Congress expressly ‘[recognized]
that in many instances the process of providing
special education and related services to handicapped
children is not guaranteed to produce any particular
outcome.’ Thus, the intent of the Act was more to open
the door of public education to handicapped children
on appropriate terms than to guarantee any particular
level of education once inside.
Rowley, 458 U.S. at 198 (quoting S. Rep. No. 94-168, at 11
(1975)). In the instant case, the hearing officer’s order that
DCPS “ensur[e] that sufficient education and supports are
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provided for the Student to permit her to graduate with a
diploma no later than the semester ending following her 21st
birthday” is therefore inconsistent with the IDEA because it
requires DCPS to ensure a particular outcome.
C. Conditions Placed on DCPS’s Objections
Next, plaintiff challenges the language in the HOD stating
that DCPS “shall have no authority to object to the special
education and related services provided unless there is clear
data indicating the Student is not making sufficient progress
and Accotink Academy is unwilling or unable to alter the program
to effectively address any lack of expected progress.” AR at 20
(emphasis added). Plaintiff objects to this language, arguing
that it “improperly limits DCPS’ ability to participate in the
development of an IEP and placement of the student by
subordinating the authority of the DCPS IEP team to that of
Accotink, a private school.” Pl.’s Mem. 12.
Defendant responds by asserting that the language is
consistent with the IDEA because “if progress is not being met
as it relates to specialized instruction, such a lack of
progress must be addressed by the IEP team. In addressing the
lack of progress, data must be collected and reviewed to
ascertain the causes on no progress.” Def.’s Mem. 12.
According to the defendant, the HOD’s order “does not prohibit
or deny the District from assuming the role that IDEA has
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mandated for it as the local educational agency.” Def.’s Mem.
13.
Again, the Court finds that the language of the HOD, which
prohibits DCPS from objecting to the special education and
related services provided to C.P. unless there is “clear data
indicating the Student is not making sufficient progress and
Accotink Academy is unwilling or unable to alter the program to
effectively address any lack of expected progress,” restricts
the actions of DCPS in a manner that is inconsistent with the
IDEA. As noted by the plaintiff, not only is the requirement of
“clear data” not present in the IDEA, but the HOD would require
DCPS to wait until a private school refuses to act before DCPS
would be permitted to carry out its duties under the IDEA. This
is patently inconsistent with the IDEA. In particular, Section
1414(d)(4)(A) states that:
The local educational agency “shall ensure that . . .
the IEP Team (i) reviews the child’s IEP periodically,
but not less frequently than annually, to determine
whether the annual goals for the child are being
achieved; and (ii) revises the IEP as appropriate to
address—
(I) any lack of expected progress toward the
annual goals and in the general education
curriculum, where appropriate;
(II) the results of any reevaluation conducted
under this section;
(III) information about the child provided to, or
by, the parents, as described in subsection
(c)(1)(B);
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(IV) the child’s anticipated needs; or
(V) other matters.
If, as the HOD states, DCPS is required to wait for inaction by
the Accotink Academy before it may object to or revise C.P.’s
IEP, it will not be able to comply with the requirements of the
IDEA.
D. Comparable Full-Time Day School
DCPS also argues that the HOD’s requirement that “if the
Student is not making sufficient progress toward a diploma [at
Accotink Academy], the Respondent may make a change in location
to a comparable full-time special education day school,” is
contrary to the IDEA. DCPS asserts that since the IDEA requires
that the IEP team place C.P. in the “least restrictive
environment,” the HOD is inconsistent with the IDEA because it
requires the IEP team to place C.P. in a full-time special
education school and does not allow the IEP Team to consider
whether a regular educational environment, or part-time
placement in a special education school, would suffice.
The IDEA requires that children with disabilities be placed
in the “least restrictive environment,” i.e. that, “to the
maximum extent appropriate, children with disabilities,
including children in public or private institutions or other
care facilities, are educated with children who are not
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disabled, and special classes, separate schooling, or other
removal of children with disabilities from the regular
educational environment occurs only when the nature or severity
of the disability of a child is such that education in regular
classes with the use of supplementary aids and services cannot
be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(emphasis
added).
Defendant argues that, despite the language in Paragraph
Two, DCPS retains the authority to move C.P. to a less
restrictive environment. In support of this, the defendant
points to language contained in Paragraph 6 of the HOD’s order
which states that:
Nothing in this order is intended to restrict the IEP
team from making other changes appropriate and
necessary for the Student to be provided a free and
appropriate public education, except that the student
will remain in a full time special education day
school until she graduates with a diploma, ages out,
or the Student or the Petitioner (whom ever has
decision making authority for the Student) and the
Respondent agree to a new placement (more or less
restrictive setting).
AR at 22.
Upon consideration of the relevant provisions in the HOD,
the Court concludes that the language of the HOD here is again
inconsistent with the IDEA. In particular, even taking
Paragraph 6 into account, which appears to allow DCPS to provide
C.P. with part-time placement in a special education school
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instead of full-time placement only if the student and/or parent
agrees, the Court concludes that the HOD prevents DCPS from
complying with the IDEA requirement of a “least restrictive
environment.”
E. Notice Requirement
Finally, plaintiff argues that the HOD cannot require DCPS
to give two weeks’ notice to C.P.’s parent and the school,
Accotink, before making changes to C.P.’s placement. With
respect to notification to the private school, DCPS argues that
nothing in the IDEA requires any prior written notice to a
private school at all before a proposed change in placement is
initiated by the local educational agency. With respect to
notification to the parent, DCPS argues that although the IDEA
requires that notice be provided to a parent within “a
reasonable time before” the agency proposes to “initiate or
change” a student’s IEP, nothing in the IDEA or the accompanying
regulations require a minimum or maximum amount of time for DCPS
to give notice to a parent.
Defendant, in response, concedes that the IDEA does not
require schools to be notified, but argues that “[n]onetheless
there is no violation that could be levied against the District
for failing to provide prior written notice to Accotink
Academy.” Def.’s Mem. at 13. Defendant further argues that
DCPS is not harmed by a requirement that it give two weeks’
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notice to C.P.’s parent and private school and that two weeks’
notice is not unreasonable. Def.’s Mem. 13.
Regarding the notification to the parent, the Court will
defer to the hearing officer. The IDEA requires that a local
educational agency must give written notice to a student’s
parent or guardian before changing a student’s educational
placement. 20 U.S.C. § 1415(b)(3). This notice must be given
within a “reasonable time” before the agency acts. 34 C.F.R.
§ 300.503(a). The Court concludes that the hearing officer’s
determination – that a requirement of two weeks’ notice to the
parent was “reasonable” within the meaning of 34 C.F.R.
§ 300.503(a) – is not contrary to the IDEA, and it was within
the discretion of the hearing officer to make such a
determination.
However, HOD’s requirement that DCPS give notice to the
private school is contrary to the IDEA. The IDEA and the
relevant regulations, although they detail the circumstances
under which a parent must be given notice, do not include any
requirement that a private school be notified. Accordingly, the
Court concludes that Congress did not intend for such a
requirement to be imposed, and the HOD erred by mandating it.
IV. CONCLUSION
For the foregoing reasons, plaintiff’s motion for summary
judgment is hereby GRANTED, and defendant’s cross-motion for
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summary judgment is DENIED. This matter is REMANDED to the
administrative hearing officer for further proceedings
consistent with the Court’s ruling. An appropriate Order
accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
September 21, 2011
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