UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
S.S., a minor child, by and through YVETTE
STREET,
Plaintiff,
Civil Action No. 13-557 (CKK)
v.
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
(September 19, 2014)
Plaintiff Yvette Street filed suit as the parent and next friend of her son, S.S., seeking
injunctive and declaratory relief against the District of Columbia under the Individuals with
Disabilities Education Improvement Act (“IDEA”),1 20 U.S.C. § 1400 et seq. Plaintiff is
appealing the Hearing Officer Determination that denied in part and granted in part Plaintiff’s
administrative due process complaint alleging that the District of Columbia Public Schools
(“DCPS”) denied S.S. a free, appropriate, public education (“FAPE”) during the 2011-2012 and
2012-2013 school years. Plaintiff also asserts violations of Section 504 of the Rehabilitation Act
of 1973. Presently before the Court are the parties’ cross-motions for summary judgment as
well as Plaintiff’s motion to supplement the Administrative Record. Upon consideration of the
1
The IDEA was re-authorized and re-codified pursuant to the Individuals with
Disabilities Education Improvement Act in 2004, Pub. L. No. 108–446, 118 Stat. 2647 (2004).
The short title of the re-authorized and amended provisions remains the Individuals with
Disabilities Education Act. See Pub. L. No 108–446, § 101; 118 Stat. at 2647; 20 U.S.C. § 1400
(2006). Accordingly, the Court refers to the amended Act herein as the IDEA.
parties’ briefs,2 the Administrative Record, and the applicable authorities, the Court DENIES
Plaintiff’s Motion to Supplement the Administrative Record. As for the parties’ cross-motions
for summary judgment, the Court finds the Hearing Officer Determination was correct. The
Court further finds that Plaintiff has failed to exhaust her Section 504 retaliation claim and failed
on the merits to meet her burden of proof on the remaining Section 504 claims. Accordingly,
Plaintiff’s Motion for Summary Judgment is DENIED and Defendant’s Cross–Motion for
Summary Judgment is GRANTED.
I. BACKGROUND
A. Factual Background
Plaintiff does not dispute that the Hearing Officer set out as part of her Determination all
of the relevant evidence from the record presented to her. Plaintiff disputes some of the
credibility findings and some of the conclusions reached by the Hearing Officer based on the
factual record. Accordingly, the Court will cite to evidence, findings, and conclusions as they
relate to the discussions of the issues raised in this case.
B. Procedural Background
a. Administrative Due Process Complaint and IDEA Hearing Officer Determination
2
Plaintiff’s Amended Motion for Summary Judgment (“Pl.’s Mot.”), ECF No. [46];
Defendant’s Cross-Motion for Summary Judgment (“Def.’s Cross-Mot.”), ECF No. [47];
Defendant’s Opposition to Plaintiff’s Amended Motion for Summary judgment (“Def.’s
Opp’n.”), ECF No. [48]; Plaintiff’s Opposition to Defendant’s Cross-Motion for Summary
Judgment and Reply to Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment
(“Pl.’s Opp’n.”), ECF Nos. [49], [54]; Defendant’s Reply to Plaintiff’s Opposition to
Defendant’s Cross-Motion for Summary Judgment (Def.’s Reply), ECF No. [59]; Plaintiff’s
Motion for Leave to Submit Additional Evidence (“Pl.’s Mot. for Addt’l Ev.), ECF No. [34];
Defendant’s Opposition to Plaintiff’s Motion for Leave to File Additional Evidence (Def.’s
Opp’n. to Mot. for Addt’l Ev.”), ECF No. [40]; Plaintiff’s Reply to Defendant’s Opposition to
Plaintiff’s Motion for Leave to File Additional Evidence (“Pl.’s Reply to Mot. for Addt’l Ev.”),
ECF No. [43].
2
On December 21, 2012, Plaintiff filed an administrative due process complaint against
the District. AR at 387-399. Plaintiff identified the following issues in her administrative
complaint: (1) failure to provide S.S. a FAPE due to disability harassment and bullying by
students and staff; (2) failure to adequately evaluate S.S. in all areas of suspected disability; (3)
failure to provide S.S. special education and related services regarding discipline and corporal
punishment; (4) failure to provide S.S. an assistive technology device and assistive technology
services; (5) failure to provide S.S. an appropriate placement at McFarland; and (6) failure to
provide S.S. home instruction during the 2012-2013 school year. Id. at 397.
On January 23, 2013, a pre-hearing conference was held and a pre-hearing order was
issued. Id. at 449. The Hearing Officer identified the following issues for adjudication: (1)
“Whether [DCPS] denied [S.S.] a free, appropriate, public education (“FAPE”) during the 2011-
2012 school year when the classroom aide and other students repeatedly physically harmed him,
which prevented him from accessing the curriculum and making progress on the goals in his
individualized education program (“IEP”);” (2) “Whether [DCPS] denied [S.S.] a FAPE during
the 2011-2012 school year by failing to conduct assistive technology and developmental vision
assessments of [S.S.];” (3) “Whether [DCPS] denied [S.S.] a FAPE during the 2012-2013 school
year by failing to prevent other students from physically harming him, which prevented [S.S.]
from accessing the curriculum and resulted in his developing school phobia;” (4) “Whether
[DCPS] denied S.S. a FAPE from October 25, 2012, through the present by failing to provide
him home-based instruction while he was unable to attend school due to the injuries he suffered
after another student injured him in the school cafeteria and due to his school phobia;” (5)
“Whether [DCPS] denied [S.S.] a FAPE during the 2011-2012 and 2012-2013 school years by
failing to provide him assistive technology, i.e., a laptop computer or iPad and related software
3
to assist him with communication;” and (6) “Whether [DCPS] denied [S.S.] a FAPE during the
2011-2012 and 2012-2013 school years by failing to provide him a sufficiently restrictive
placement, i.e., place him in a separate, special education day school for students with severe
autism.” Id. at 451-452. Plaintiff did not object to the issues the Hearing Officer determined for
adjudication in the pre-hearing order, either within the three-day window to object following the
issuance of the pre-hearing order or when the Hearing Officer read the issues certified for
hearing at the beginning of the due process hearing. Id. at 38 n. 380.
The due process hearing was held on February 27, 28, and March 4, 2013. Id. at 887;
1160; 1409. During the hearing, Plaintiff withdrew her claim that DCPS denied S.S. a FAPE
during the 2011-2012 and 2012-2013 school years by failing to provide him assistive technology
(Issue #5) and her claim that DCPS denied S.S. a FAPE during the 2011-2012 school year by
failing to conduct an assistive technology assessment of S.S. (Issue #2). Id. at 898-900. Plaintiff
also withdrew her proposed compensatory education plan as a remedy for failing to provide
home instruction (Issue #4) and confirmed that it should be withdrawn with prejudice. Id. at
1450-51.
Plaintiff; Dr. Alsan Bellard, S.S.’s pediatrician; Janeen Curry, a bus attendant on the bus
S.S. took to school; Nicole Zeitlin, an expert in clinical psychology; and Kristin Conaboy, an
occupational therapist who evaluated S.S., testified for Plaintiff. DCPS Autism Coordinator
Emily Pearson testified on behalf of DCPS. The Hearing Officer issued a Determination on
March 16, 2013. Id. at 3-39. The Hearing Officer concluded that Plaintiff proved that DCPS
denied S.S. a FAPE during the 2011-2012 school year by failing to conduct a developmental
vision assessment and ordered related relief. Id. at 33-34. The Hearing Officer also concluded
that Plaintiff proved that DCPS denied S.S. a FAPE from October 25, 2012, through the present
4
by failing to provide home-based instruction. Id. at 34-35. However, the Hearing Officer did not
provide a remedy for this denial of a FAPE because during the hearing, Plaintiff withdrew her
claims for compensatory education with prejudice, which the Hearing Officer determined was
the proper remedy. AR at 35; 1450-51.
The Hearing Officer ruled against Plaintiff on the remaining issues. Specifically, the
Hearing Officer concluded that Plaintiff failed to prove that DCPS denied S.S. a FAPE during
the 2011-2012 and 2012-2013 school years by failing to stop other students and the Classroom
Aide from bullying S.S., which prevented him from accessing the curriculum, resulting in S.S.
developing school phobia. Id. at 29-32. The Hearing Officer also concluded that Plaintiff failed
to prove that DCPS denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years by
failing to provide him a sufficiently restrictive placement, that is, a separate special education
day school for students with autism. Id. at 35-38.
b. District Court Complaint
Plaintiff filed suit on April 24, 2013, asserting that DCPS denied S.S. a free appropriate
public education. Plaintiff filed an Amended Complaint on August 26, 2013, appealing the
March 16, 2013, Hearing Officer Determination and alleging violations of Section 504 of the
Rehabilitation Act. See ECF No. [23]. Specifically, Plaintiff alleges that Defendant violated the
IDEA by failing to provide S.S. a FAPE due to disability harassment (Count I), failing to
implement the IEP (Count II), failing to protect S.S. from bullying (Count III), and by failing to
provide home instruction (Count IV). Plaintiff further alleges that Defendant violated Section
504 by denying S.S. a FAPE due to disability harassment and the creation of a hostile
environment (Count V), through other acts (Count VI), and by retaliating against Plaintiff for
legally protected activities (Count VII). Finally, Plaintiff alleges that the Hearing Officer failed
5
to render a fair and proper decision (Count VIII).
On January 20, 2014, Plaintiff filed her Amended Motion for Summary Judgment.3 On
January 30, 2014, Defendant filed a Cross-Motion for Summary Judgment arguing that (1)
Plaintiff failed to exhaust her administrative remedies as to her Section 504 retaliation claim; (2)
Plaintiff was raising the failure to implement the IEP before this Court in the first instance,
without first presenting the issue to a hearing officer; (3) Plaintiff failed to show that S.S. was
bullied by other students or by the Classroom Aide; and (4) Plaintiff failed to present an
argument to sustain her Section 504 claims. Alternatively, Defendant argues that DCPS did not
violate any provisions of Section 504. In addition, with respect to Count VIII of Plaintiff’s
Amended Complaint, Defendant argues that the Court should deny Plaintiff’s Motion because
the Hearing Officer Determination is legally sufficient and entitled to due deference. The parties
subsequently filed oppositions and replies to their respective motions for summary judgment.
Accordingly, the parties’ motions are now ripe for review by the Court.
Plaintiff also filed a Motion for Leave to File Additional Evidence. Plaintiff seeks to
supplement the Administrative Record with four pieces of evidence: (1) evidence that DCPS’
witness at the due process hearing lied under oath about her credentials; (2) newly discovered
evidence that DCPS failed to provide S.S. adapted physical education as required in S.S.’s 2011-
2012 IEP; (3) after-occurring evidence related to DCPS’ alleged retaliation against Plaintiff; and
(4) S.S.’s developmental optometry evaluation and evidence of DCPS’ alleged non-response to
3
Plaintiff originally filed her motion for summary judgment on November 25, 2013, see
ECF No. [35], however, the Court struck the motion because Plaintiff’s statement of material
facts did not comply with Local Civil Rule 7(h)(2). In a Minute Order entered on January 6,
2014, the Court ordered Plaintiff to resubmit her motion for summary judgment with a statement
of material facts that complied with LCvR 7(h)(2) by no later than January 20, 2014, which
Plaintiff did.
6
the evaluation. Defendant filed an opposition to Plaintiff’s Motion for Leave to File Additional
Evidence and Plaintiff filed a reply. Accordingly, Plaintiff’s Motion is also ripe for the Court’s
review.
II. LEGAL STANDARD
A. Summary Judgment Under Federal Rule of Civil Procedure 56
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and [that he] ... is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of his position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary
judgment. Ass’n of Flight Attendants–CWA, AFL–CIO v. U.S. Dep’t of Transp., 564 F.3d 462,
465–66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact,” the district court may “consider the
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fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“whether the evidence presents a sufficient disagreement to require submission to [the trier of
fact] or whether it is so one-sided that one party must prevail as a matter of law.” Liberty
Lobby, 477 U.S. at 251–52. In this regard, the non-movant must “do more than simply show that
there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not
sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50
(citations omitted).
B. Review of an Administrative Decision Under the IDEA
Under the IDEA, a “party aggrieved by the findings and decision” of the hearing officer
may bring a civil action in federal court “without regard to the amount in controversy.” 20
U.S.C. § 1415(i)(2)(A). The court “shall receive the records of the administrative proceedings,”
“shall hear additional evidence at the request of a party,” and, “basing its decision on the
preponderance of the evidence, shall grant such relief as the court determines is appropriate.” §
1415(i)(2)(C). In a civil action reviewing an IDEA administrative determination, “[a] motion for
summary judgment operates as a motion for judgment based on the evidence comprising the
8
record and any additional evidence the Court may receive.” D.R. v. District of Columbia, 637
F.Supp.2d 11, 16 (D.D.C. 2009).
The reasons for a court to hear additional evidence at the request of a party “might
include gaps in the administrative transcript owing to mechanical failure, unavailability of a
witness, an improper exclusion of evidence by the administrative agency, and evidence
concerning relevant events occurring subsequent to the administrative hearing.” Town of
Burlington v. Dep’t of Ed., 736 F.2d 773, 790 (1st Cir. 1984). The trial court has the discretion to
determine what constitutes “additional” evidence under the IDEA and “must be careful not to
allow such evidence to change the character of the hearing from one of review to a trial de
novo.” Id. at 791; see also Springer v. Fairfax Cnty. Sch. Bd., 134 F.3d 659, 667 (4th Cir.
1998) (“A lax interpretation of ‘additional evidence’ would ‘reduce the proceedings before the
state agency to a mere dress rehearsal by allowing appellants to transform the Act’s judicial
review mechanism into an unrestricted trial de novo’ ” (internal citation omitted)). Furthermore,
additional evidence should not be introduced in the trial court “to patch up holes in [a party’s]
administrative case,” Springer, 134 F.3d at 667, since that would result in administrative
proceedings “no longer receiv[ing] the weight that they are due,” Schaffer v. Weast, 554 F.3d
470, 476 (4th Cir. 2009). Finally, additional evidence should be relevant to the challenged
decisions of the hearing officer. S.M. v. Bd. of Ed. of Albuquerque Pub. Sch., 565 F.3d 1232,
1241 (10th Cir. 2009).
The party challenging the Hearing Officer Determination bears the burden of proof and
must “at least take on the burden of persuading the court that the hearing officer was
wrong.” 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. 1989)). The preponderance-of-the-evidence standard in
9
this context does not grant the reviewing court unfettered de novo review. See Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982) (“Thus
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.”). Rather, courts must give “due
weight” to the administrative proceedings. Id. “[F]actual findings from the administrative
proceeding are to be considered prima facie correct.” 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)). Because the IDEA permits a reviewing court to
entertain additional evidence at the request of a party, courts employ “ ‘less deference than is
conventional’ in administrative proceedings.” Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d
at 887). Nevertheless, the Court should “defer to the [hearing officer’s] factual findings unless it
can point to contrary nontestimonial extrinsic evidence on the record.” S.H., 336 F.3d at
270; accord Alfono v. District of Columbia, 422 F.Supp.2d 1, 8 (D.D.C. 2006); Armstrong v.
District of Columbia, No. 03–2598, 2005 WL 433448, at *2 (D.D.C. Feb. 24, 2005).
III. DISCUSSION
A. Motion to Supplement Administrative Record
Plaintiff moves the Court to permit her to supplement the Administrative Record with
four categories of evidence: (1) evidence that a DCPS witness at the due process hearing lied
under oath about her credentials and that DCPS’ attorney allegedly knew about it and suborned
perjury; (2) Plaintiff’s affidavit averring that a DCPS teacher admitted to Plaintiff that DCPS
failed to place S.S. in an adapted physical education class during the 2011-2012 school year in
violation of S.S.’s IEP; (3) evidence that DCPS retaliated against Plaintiff for her protected
10
activities advocating for S.S.’s educational needs; and (4) the developmental optometry
evaluation ordered by the Hearing Officer and the documents relevant to the June 11, 2013, IEP
meeting at which DCPS allegedly refused to change S.S.’s IEP in response to the evaluation.
The Court will consider the propriety of admitting each category of evidence in turn.
a. Evidence of False Testimony During the Due Process Hearing
Plaintiff first moves the Court to supplement the Administrative Record with evidence
that Defendant’s only witness, Emily Pearson, DCPS’ Autism Coordinator, lied under oath about
her credentials during the due process hearing, as well as evidence that Plaintiff contends shows
that DCPS suborned perjury. Defendant concedes that Ms. Pearson misrepresented her
credentials during the due process hearing, but argues that this evidence should not be added to
the Administrative Record because Ms. Pearson’s testimony “had no bearing on the outcome of
the hearing.” Def.’s Opp’n. to Mot. for Addt’l Ev. at 4. Defendant also argues that none of
Plaintiff’s accusations that the District suborned perjury have any basis in fact. Id. at 10.
The Hearing Officer recited Ms. Pearson’s testimony as it related to the merits of Applied
Behavior Analysis (“ABA”) therapy for autistic children and to the fact that MacFarland does
not employ ABA therapists. AR at 15-16, ¶¶ 33, 35. The Court agrees with Defendant that the
Hearing Officer did not rely on Ms. Pearson’s testimony in its findings and conclusions of law.
The Hearing Officer relied on regulations in describing the role of ABA therapy in an IEP and
reached the legal conclusion that, since Plaintiff did not challenge the IEP by requesting that
ABA therapy be included, Plaintiff cannot argue that ABA therapy should have been provided,
necessitating S.S.’s placement in the special education day school that could provide that
therapy. See id. at 38. Accordingly, Ms. Pearson’s testimony was irrelevant to the claim of
bullying and the claim that a change of school placement was required. In addition, there is no
11
evidence to support a conclusion that the DCPS attorney suborned perjury other than Plaintiff’s
pure speculation.
The Court also finds that this evidence is not relevant to Plaintiff’s allegation that DCPS
denied S.S. home instruction and an optometry evaluation in bad faith or gross misjudgment—
the only denials of a FAPE that the Court finds actionable under Section 504 for the reasons
described in Part B(d)(iii). Ms. Pearson testified extensively about ABA therapy and the
therapies available at MacFarland, not about the need for DCPS to provide home instruction or
an optometry evaluation. Accordingly, the Court will not supplement the record with this
evidence other than to acknowledge that Ms. Pearson lied about her credentials. The fact that the
Court is not admitting this evidence because it is not relevant to the issues before the Court does
not mean that the Court is in any way condoning the fact that Ms. Pearson lied about her
credentials during the due process hearing.
b. Evidence of Admission Regarding Physical Education Class
Plaintiff next seeks to supplement the Administrative Record with her own affidavit
averring that a DCPS teacher admitted that DCPS failed to place S.S. in adapted physical
education during the 2011-2012 school year in violation of S.S.’s IEP. Plaintiff offers this
evidence as evidence of DCPS’ bad faith and gross misjudgment in support of her Section 504
Rehabilitation Act claims. The Court will not permit Plaintiff to supplement the Administrative
Record with this evidence because it is not related to the issues that were presented to the
Hearing Officer that Plaintiff is now challenging. Plaintiff did not challenge S.S.’s IEP or the
failure to implement the IEP. The Court further fails to see how this alleged admission about one
violation of S.S.’s IEP constitutes, without more, evidence of DCPS’ bad faith or gross
misjudgment as to the unrelated denial of home instruction and an optometry evaluation—the
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only denials of a FAPE that the Court finds actionable under Section 504 for the reasons
described in Part B(d)(iii). Accordingly, the Court denies Plaintiff’s request to supplement the
Administrative Record with this evidence.
c. Evidence of Retaliation
Plaintiff also seeks to supplement the Administrative Record with evidence that
Defendant retaliated against Plaintiff for her efforts to advocate for educational services for S.S.
by reporting Plaintiff to the Child and Family Services Agency (“CFSA”) and to the Superior
Court for criminal truancy. The Court will not permit Plaintiff to supplement the Administrative
Record with this evidence because, as discussed in Part B(d)(i), Plaintiff’s retaliation allegations
have not been exhausted through the IDEA administrative process and thus are not properly
before this Court. As Plaintiff’s retaliation claim was not exhausted before the Hearing Officer
in the administrative due process hearing, by definition, evidence of DCPS’ allegedly retaliatory
activities cannot be relevant to the challenged decisions of the Hearing Officer.
d. Evidence of Developmental Optometry Evaluation and DCPS’ Response to
Evaluation
Finally, Plaintiff seeks to supplement the Administrative Record with the developmental
optometry evaluation ordered by the Hearing Officer as well as documents relevant to the June
11, 2013, IEP meeting at which DCPS allegedly refused to change S.S.’s IEP in response to the
optometry evaluation. Plaintiff seeks “to admit this evidence to further elucidate the Court on
Defendant’s past and continuing denials of FAPE, as well as their discrimination against S.S.
solely on the basis of disability by refusing to provide him aids, benefits, and services that are as
effective as those for non-disabled students.” Pl.’s Mot. for Addt’l Ev. at 19. Plaintiff also
presents this evidence as evidence of Defendant’s bad faith or gross misjudgment. The Court
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will not permit Plaintiff to supplement the Administrative Record with this evidence because it is
not relevant to the Hearing Officer’s determinations that Plaintiff is now challenging. First, this
evidence should not be admitted to elucidate Defendant’s past denial of a FAPE because the
Hearing Officer found in Plaintiff’s favor on the issue of the optometry evaluation and thus
Plaintiff is not challenging that decision before this Court. Nor should this evidence be admitted
to elucidate Defendant’s continuing denial of a FAPE. Plaintiff argues that this evidence shows
DCPS continued to deny S.S. a FAPE after conducting the optometry evaluation by not adjusting
S.S.’s IEP based on the results of the evaluation. To the extent this evidence shows a new denial
of a FAPE occurring after the due process hearing, it is not properly before the Court because it
was not among the issues exhausted in the administrative due process hearing presently being
challenged.
Plaintiff is correct that evidence of events occurring after the due process hearing can be
added to the Administrative Record when it bears on the suitability of an earlier IEP that was
challenged during the due process hearing. See Shaffer v. Weast, 554 F.3d 470, 478 (4th Cir.
2009) (“We have held that where an IEP is accepted, evidence of educational progress under that
IEP is useful in deciding whether the IEP was appropriate.”). However, Plaintiff did not
challenge S.S.’s IEP before the Hearing Officer. As the evidence Plaintiff seeks to introduce
only goes to the adequacy of S.S.’s IEP which was not an issue before the Hearing Officer and is
not an issue now before this Court, the Court shall deny Plaintiff’s request to supplement the
Administrative Record with this evidence. Plaintiff also cannot present this evidence as evidence
of DCPS’ bad faith or gross misjudgment to support her Section 504 claims because it does not
show bad faith in DCPS’ denial of home instruction or an optometry evaluation, especially as
14
Plaintiff has not indicated that the results of the optometry evaluation necessitated a change in
S.S.’s IEP.
B. Cross-Motions for Summary Judgment
a. Failure to Provide a FAPE due to Disability Harassment and Bullying
(Counts I and III)
In her administrative due process complaint and before the Hearing Officer, Plaintiff
alleged that S.S. was subjected to disability harassment and bullying while at MacFarland
Middle School and that this bullying led S.S. to develop a psychological condition called “school
avoidance” which in turn led him to miss school and be denied a FAPE. AR at 396, ¶ 64.
Plaintiff argues that the Hearing Officer erred in holding that Plaintiff failed to prove a denial of
a FAPE due to disability harassment and bullying because the Hearing Officer Determination
was not “regularly made” and because the Hearing Officer improperly discredited testimony that
S.S. was bullied and that this bullying led S.S. to develop school avoidance. Pl.’s Mot. at 10.
The Court shall address each argument in turn.
i. Certification of Issues
Plaintiff argues that the Hearing Officer’s failure to find for Plaintiff on Plaintiff’s claim
of disability harassment and bullying was in error because the Hearing Officer’s findings were
not “regularly made.” Pl.’s Mot. at 39. Specifically, Plaintiff notes that in a pre-hearing order,
the Hearing Officer certified for hearing the issue of whether Defendant denied S.S. a FAPE
during the 2011-2012 and 2012-2013 school years when the Classroom Aide and other students
“repeatedly physically harmed him.” See AR at 451. The Hearing Officer confirmed the
certification of the issue of “repeated physical harm” at the beginning of the due process hearing.
Id. at 894. However, in the Hearing Officer Determination, the Hearing Officer stated the issue
15
as whether the Classroom Aide and other students “bull[ied] [S.S.].” Id. at 7. Plaintiff contends
that by ultimately evaluating whether S.S. was “bullied,” instead of simply “physically harmed,”
the Hearing Officer effectively required Plaintiff to prove intent, which Plaintiff did not know
during the hearing she was expected to prove. Pl.’s Mot. at 25.
The Court finds that the Hearing Officer’s focus on bullying in her Determination,
instead of repeated physical harm, did not deny Plaintiff a fair and proper hearing or decision.
First, in her administrative due process complaint, Plaintiff herself framed the issue as whether
S.S. was denied a FAPE “due to disability harassment and bullying.” AR at 397. To support her
allegation of disability harassment and bullying in the administrative complaint, Plaintiff
presented facts about a series of physical injuries that S.S. received while at MacFarland. These
were the same facts about which Plaintiff extensively testified during the due process hearing.
Moreover, Plaintiff acknowledges in her Opposition that her expert witnesses testified about the
bullying to which S.S. was subjected at MacFarland. Pl.’s Mot. at 13. In her Determination, the
Hearing Officer clearly considered all of the physical injuries Plaintiff alleged in her
administrative complaint and again at the hearing as evidence of bullying. Although Plaintiff
appears to be arguing that she was prejudiced by the shift in focus from physical harm to
bullying, Plaintiff herself contends in her Motion that the preponderance of the evidence
nevertheless showed S.S. was bullied in school. Id. at 23. Accordingly, the Court is not inclined
to find that Plaintiff was prejudiced in her presentation of evidence at the due process hearing.
In any event, the focus of the Hearing Officer Determination was ultimately less on
whether there was bullying and more on whether that bullying or physical harm caused the
denial of a FAPE. Thus, even if, as Plaintiff argues, the Hearing Officer was wrong to have
considered whether certain instances of physical harm were accidental, the Hearing Officer’s
16
Determination was ultimately based on her finding that Plaintiff had failed to present sufficient
evidence that the physical harms S.S. suffered—accidental or not—were the cause of his school
avoidance and his lengthy absences from MacFarland. See AR at 32. Accordingly, the Court
rejects Plaintiff’s argument that the Hearing Officer’s conclusion that Plaintiff failed to show that
S.S. was denied a FAPE due to bullying was procedurally irregular.
ii. Evidence of disability harassment/bullying
The Court also rejects Plaintiff’s argument that the Hearing Officer erred in finding that
Plaintiff failed to prove S.S. was denied a FAPE due to disability harassment and bullying. This
jurisdiction has not addressed the issue of whether bullying may be a basis for finding a violation
of the IDEA and a denial of a FAPE. Four other circuits have addressed this issue,4 however, a
common framework under which to analyze the issue has not emerged. T.K. v. New York City
Dep’t of Ed., 779 F.Supp.2d 289, 312 (E.D.N.Y. 2011). Of the circuits that have developed a
test for analyzing bullying claims, the Ninth Circuit asks “whether a teacher was deliberately
indifferent to bullying and the abuse so severe that a child can derive no educational benefit.” Id.
at 313 (citing M.L. v. Fed. Way. Sch. Dist., 394 F.3d 634, 650 (9th Cir. 2005)) (emphasis in
original). The United States District Court for the Eastern District of New York has derived
another test: “whether school personnel was deliberately indifferent to, or failed to take
reasonable steps to prevent bullying that substantially restricted a child with learning disabilities
in her educational opportunities.” T.K., 779 F.Supp.2d at 316.
During the due process hearing, Plaintiff testified about physical injuries that S.S.
4
Smith v. Guilford Bd. of Ed., 226 Fed.Appx. 58 (2d Cir. 2007); M.L. v. Fed. Way. Sch.
Dist., 394 F.3d 634 (9th Cir. 2005); Shore Regional High Sch. Bd. of Ed. v. P.S., 381 F.3d 194
(3d Cir. 2004); Charlie F. ex rel. Neil F. v. Bd. of Ed. of Skokie Sch. Dist. 68, 98 F.3d 989 (7th
Cir. 1996).
17
received while at MacFarland Middle School. Plaintiff also presented two experts who testified
about S.S.’s autism spectrum disorder and the “school avoidance” anxiety disorder S.S. allegedly
developed while at MacFarland. In her Determination, the Hearing Officer considered in detail
all of the incidents of physical harm about which Plaintiff and her experts testified. Plaintiff
does not now contend that the Hearing Officer failed to consider certain evidence. Instead,
Plaintiff primarily takes issue with the Hearing Officer’s credibility determinations, specifically
as they affect the Hearing Officer’s conclusions about whether the physical harms S.S. suffered
were the result of bullying and whether they caused S.S. to develop school avoidance and miss
school.
In her Determination, the Hearing Officer found that between August 25, 2011, and the
end of September 2012, S.S. often returned home with scratches and bruises and was involved in
about ten incidents at school in which he sustained injuries, including a bruised wrist, a sprain in
his arm and neck, and head injuries. AR at 19, ¶ 48; 30; 32. While the Hearing Officer found
that Plaintiff and her experts testified credibly about these injuries, the Hearing Officer
ultimately concluded that Plaintiff had failed to prove “the scratches weren’t a result of his
tantrums, clumsiness, or horseplay,” or that the injuries were not accidental or caused by S.S.’s
own aggressiveness. Id. at 32.
The Hearing Officer next found that by October 19, 2011, S.S. had missed fifteen days of
school and had “become reluctant to attend school because he feared the Classroom Aide.” Id. at
30. Again, although the Hearing Officer credited Plaintiff’s testimony that the child feared the
Classroom Aide, the Hearing Officer did not credit Plaintiff’s testimony that the Classroom Aide
had bullied S.S. or in any other way caused physical harm to S.S. Id. at 26, ¶ 92; 32. The
Hearing Officer noted that the only evidence that the Classroom Aide had physically harmed S.S.
18
came from Plaintiff’s testimony that S.S. had specifically told Plaintiff that the Classroom Aide
had injured him and explained the manner in which he was injured. Id. at 26, ¶ 92. The Hearing
Officer discredited Plaintiff’s testimony because the testimony of Plaintiff’s experts was that S.S.
was “essentially non-verbal [which] undermines [Plaintiff’s] assertion that [S.S.] described the
incidents to her.” Id.
The Hearing Officer next found that in December 2011, S.S. was hit in the head several
times by weighted basketballs during his physical education class. Id. at 30. S.S. was injured in
at least three incidents, including one in which he was knocked to the floor. Id. “Within weeks,”
S.S. was hospitalized with Bell’s Palsy. Id. The Hearing Officer found that these incidents “may
have been accidental” given the fact that the testimony established that S.S. “is often unaware of
the location of his body in the space around him” and “trips and falls frequently.” Id. at 32.
Following the winter break, MacFarland gradually transitioned S.S. into another special
education classroom taught by a different teacher. Id. at 31. Higher functioning children were
taught in this classroom and the Classroom Aide was not present in the classroom. Id. The day
after he returned to school, S.S. got into an altercation with a student in his new classroom,
punching the student in the nose. Id. Other than his difficulties with his classmate, the Hearing
Officer found that S.S.” enjoyed the time he spent in his new class,” had no difficulties boarding
the school bus, attended school regularly, and “did not return home from school with any
observable injuries.” Id.
In March 2012, S.S. was hospitalized because he was experiencing extreme pain in his
eyes and ears. Id. S.S.’s doctors informed Plaintiff that S.S. would not be able to return to
school during the remainder of the school year. Id. By June 12, 2012, the last day of the 2011-
2012 school year, S.S. had been absent from school for 103 days. Id. The Hearing Officer
19
concluded that Plaintiff failed to show that “S.S. failed to make academic progress during the
2011-2012 school year because he was bullied by other students and the Classroom Aide” and
found instead that S.S.’s “failure to make progress was due to his missing 103 school days that
year.” Id. at 32.
As for the 2012-2013 school year, which S.S. again spent at MacFarland, the Hearing
Officer found that on September 10, 2012, S.S. arrived at school already upset and crying and
complaining of chest pain. Id. at 31. That same day, S.S. punched another student in the eye.
Id. On September 11, 2012, one of S.S.’s classmates became aggressive towards a teacher. Id.
The classmate then rushed toward S.S. and pushed him in the back and onto the concrete floor
causing S.S. to dislocate his finger and lose a tooth. Id. S.S. was not the target of the student
who pushed him to the floor in the altercation with a teacher. On September 30, 2012, Plaintiff
informed the Special Education Coordinator (“SEC”) that S.S. “had informed his doctors that he
was afraid of getting hurt if he returned to the Middle School.” Id. Plaintiff also informed the
SEC that she did not want S.S. to return to the Middle School. Id. S.S. had not returned to
school as of the time the Hearing Officer Determination was issued. Id. at 24, ¶ 80. The Hearing
Officer concluded that Plaintiff “failed to show that [S.S.] developed school avoidance during
the 2012-2013 school year because the Classroom Aide and other students had bullied him at the
Middle School” and “failed to prove that [S.S.’s] refusal to attend school was not due to his
disability, including his unreasonable fears, or his Bell’s Palsy.” Id. at 32.
After a thorough review of the Administrative Record, the Court finds no reason to
question the Hearing Officer’s determination regarding the effects of the repeated physical harms
S.S. suffered on his access to a FAPE. First, the Hearing Officer did not credit Plaintiff’s
experts’ testimony “that the Student has developed either school phobia or school avoidance.” Id.
20
at 26-27, ¶¶ 93, 94. The Hearing Officer discredited this testimony because the experts “failed to
explain the medical basis for [their] opinion” and “admitted that [they] based [their] opinion[s]
on [Plaintiff’s] impressions of the Student’s behavior.” Id. at 26-27, ¶¶ 93, 94. The Hearing
Officer also discredited the experts’ opinions because they “failed to address the sudden
disappearance of the Student’s school avoidance when [the Student] was placed in the classroom
of Teacher II at the Middle School” in the last half of the 2011-2012 school year. Id. at 27, ¶¶
93, 94. Although Plaintiff broadly argues that the Hearing Officer’s credibility determinations
were “not regularly made and not supported by the preponderance of the evidence,” the Court
finds no reason in the Administrative Record to question the Hearing Officer’s credibility
determinations as to the expert testimony because the Hearing Officer provides a reasoned
explanation for her findings. Pl.’s Mot. at 10. Most notably, while S.S. clearly suffered a
number of physical injuries throughout the first part of the 2011-2012 school year and developed
an aversion to school, the experts did not explain why this aversion disappeared when S.S.
transferred into another classroom.5 Plaintiff argues that the Court should have drawn the
“logical inference” that S.S.’s fears subsided because the Classroom Aide was not present in the
new classroom, however, there was no evidence that the Classroom Aide had bullied or
physically injured S.S. other than Plaintiff’s own testimony to that effect which the Hearing
Officer correctly discredited. Pl.’s Mot. at 10. The Court finds no reason to question the
Hearing Officer’s credibility determination as to Plaintiff’s testimony regarding the Classroom
5
Plaintiff argues that her experts should not be faulted for failing to answer questions
that were never asked, apparently referencing the fact that Plaintiff’s experts were not asked to
explain why S.S. was no longer fearful or reluctant to go to school once he switched classrooms
in the winter of 2012. This argument is unavailing because Plaintiff bore the burden of proof at
the administrative due process hearing, not the Hearing Officer.
21
Aide because Plaintiff and the experts testified that S.S. was largely non-verbal,6 making
Plaintiff’s testimony that S.S. specifically told her that the Classroom Aide injured him
incredible. See AR at 1098, 1194. Accordingly, without any evidence as to why S.S.’s alleged
school avoidance—a condition significantly more severe than simple emotional distress or fear,
see AR at 1201—disappeared when he changed classrooms, the Court finds the Hearing Officer
did not err in discrediting the expert opinion that S.S. was suffering from school avoidance
during the 2011-2012 and 2012-2013 school years.
Second, the Hearing Officer’s conclusion that S.S.’s failure to make progress during the
2011-2012 and 2012-2013 school years was due to his frequent absences and not bullying or
school avoidance is supported by the Administrative Record. During the 2011-2012 school year,
S.S. missed 103 days of school. Id. at 307-308; 356. The substantial majority of these absences
were due to S.S.’s hospitalization for pain in his eyes and ears from March to June 2012 several
months after S.S. changed classrooms and stopped being reluctant to attend school. Id. at 998-
99. In her Motion for Summary Judgment, Plaintiff contends that S.S.’s absences during the
2011-2012 school year were due to his Bell’s Palsy which was caused by the weighted ball with
which S.S. was accidentally hit in the head in December 2011 and which Plaintiff alleges was an
incident of bullying. Pl.’s Mot. at 7, 33. However, there was no evidence in the Administrative
Record that S.S.’s Bell’s Palsy was caused by the weighted ball hitting his head. The only
evidence presented was that the doctors did not know what caused S.S.’s Bell’s Palsy. AR at
975-76, 1127. Accordingly, the Court finds that S.S.’s failure to make academic progress in
6
Plaintiff contends that contrary to the Hearing Officer’s conclusion, her experts did not
testify that S.S. was “essentially nonverbal.” Pl.’s Mot. at 13 n. 96. The Court has reviewed the
experts’ testimony and determined that the experts’ testimony was in fact that S.S. was largely
nonverbal. See AR at 1098, 1194.
22
2011-2012 was due to his substantial absences for his medical conditions, not due to bullying or
any alleged reluctance to attend school.
As for the 2012-2013 school year, S.S. returned to MacFarland Middle School after
having finished the second half of the prior school year without any bullying incidents or
reluctance to attend school before leaving school for medical reasons. S.S. returned to school
upset and wanting to go home and punched a student in the eye. Id. at 342. S.S. then
experienced one incident in which another student became aggressive toward a teacher and ran in
S.S.’s direction pushing him in the back and injuring him. Id. at 1019-20. A few weeks
thereafter, Plaintiff removed S.S. from school because S.S. “was afraid of getting hurt if he
returned to the Middle School.” Id. at 23; 633-635. Based on this evidence, the Court finds that
the Hearing Officer did not err in finding that Plaintiff failed to prove that S.S.’s refusal to attend
school was due to bullying and “not due to his disability, including his unreasonable fears, or his
Bell’s Palsy.” Id. at 32.
In sum, the Court finds, as did the Hearing Officer, that Plaintiff failed to present
sufficient evidence that S.S. was denied a FAPE due to bullying or disability harassment.
Accordingly, the Court enters summary judgment in Defendant’s favor as to Counts I and III of
Plaintiff’s Amended Complaint.
b. Failure to Implement IEP/Inappropriate Educational Placement (Count II)
Plaintiff next challenges the Hearing Officer’s determination that Plaintiff failed to prove
that MacFarland was an inappropriate placement for S.S. During the due process hearing, the
Hearing Officer considered whether Defendant denied S.S. a FAPE during the 2011-2012 and
2012-2013 school years “by failing to provide him a sufficiently restrictive placement, i.e. place
him in a separate, special education day school for students with severe autism.” Id. at 452; 895.
23
The Hearing Officer explained that “[t]o prevail, [Plaintiff] was required to prove that the Middle
School was not an appropriate placement. She had to prove that . . . in order to access the
curriculum, the Student had to be educated in a more restrictive environment.” Id. at 38. The
Hearing Officer concluded that Plaintiff had failed to meet her burden because her case “focused
solely on proving that the Nonpublic School can meet the Student’s needs, particularly for ABA
therapy, the low lighting, and the sensory diet.” Id. Since “ABA therapy is an instructional
methodology, which is generally addressed in a student’s IEP,” and Plaintiff failed to challenge
S.S.’s IEP, the Hearing Officer concluded that “[Plaintiff] failed to prove that Respondent denied
the Student a FAPE.” Id.
Plaintiff now argues that the Hearing Officer erroneously concluded that Plaintiff failed
to prove that MacFarland was an inappropriate placement for S.S. Plaintiff contends that the
Hearing Officer should have found that MacFarland was an inappropriate placement because it
could not materially implement S.S.’s IEP. Specifically, Plaintiff maintains that MacFarland
could not implement S.S.’s IEP because (1) pervasive disability harassment at the school caused
S.S. to miss school, and (2) MacFarland lacked the resources, particularly certified ABA
therapists, to provide the ABA therapy that S.S. required in order to “implement the IEP as it was
currently written,” Pl.’s Mot. at 17. As to the latter argument, Plaintiff argues that the Hearing
Officer erred in finding that the only way to address a failure by the Middle School to provide
ABA therapy to S.S. was to challenge the contents of the Student’s IEP. Id. at 18.
In response, Defendant argues that the Court should not even consider Plaintiff’s claim
that “DCPS denied S.S. a FAPE by failing to implement his IEP” because Plaintiff failed to first
raise this issue during the administrative proceedings. Def.’s Cross-Mot. at 23. Defendant
further argues that, in any event, “the record is clear that DCPS was unable to implement S.S.’s
24
IEP at MacFarland because S.S. failed to attend school,” despite the actions DCPS took to assist
Plaintiff in ensuring S.S. attended school. Id. at 25. As to Plaintiff’s argument that MacFarland
did not have the resources to implement S.S.’s IEP, Defendant contends that this argument is
without merit because S.S.’s June 13, 2012, IEP did not require that S.S. receive ABA therapy,
and Plaintiff did not challenge this IEP in her administrative complaint. Id.
The Court declines Defendant’s request to dismiss Plaintiff’s claim at the outset and
chooses instead to liberally read Plaintiff’s “failure to implement” claim as effectively alleging
that MacFarland was not an appropriate placement for S.S. As Plaintiff alleged that MacFarland
was an inappropriate placement for S.S. in her administrative due process complaint and
presented evidence on this issue at the due process hearing, the Court finds that this claim is
properly before the Court—even if the title of Count II suggests otherwise.
Nevertheless, the Court is not persuaded that the Hearing Officer was wrong to the extent
that she found that Plaintiff failed to prove that MacFarland was an inappropriate placement
because MacFarland could not provide ABA therapy. A student’s IEP determines whether an
educational placement is appropriate; the placement does not dictate the IEP. See Roark v.
District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006); Spielberg v. Henrico Cty. Public
Sch., 853 F.2d 256, 258 (4th Cir. 1988) (“Educational placement is based on the IEP, which is
revised annually.”); 34 C.F.R. § 300.116(b)(2). Here, it is undisputed that S.S.’s IEP did not call
for ABA therapy as an instructional methodology. See AR at 178-95; 275-89; 309-26. Nor does
Plaintiff dispute the Hearing Officer’s finding that “ABA therapy is an instructional
methodology, which is generally addressed in a student’s IEP.” Id. at 38 (citing 34 C.F.R. §
300(a)(1)). As Plaintiff did not challenge S.S.’s IEP and its omission of ABA therapy services in
her administrative due process complaint she cannot now argue that MacFarland is an
25
inappropriate placement because it does not have the ABA therapy resources to materially
implement S.S.’s IEP.7 Accordingly, the Court grants summary judgment in Defendant’s favor
on Count II to the extent that Plaintiff argues that MacFarland is an inappropriate placement
because it does not have the ABA therapy resources to materially implement S.S.’s IEP.
The Court also grants summary judgment in Defendant’s favor on Count II to the extent
that Plaintiff argues that MacFarland Middle School was an inappropriate placement because the
school could not implement S.S.’s IEP due to pervasive disability harassment. The Court has
already found in Part B(a)(ii) that there is not sufficient evidence in the Administrative Record to
show that S.S. failed to make progress at MacFarland due to school avoidance triggered by
bullying. Accordingly, the Court also finds that the Administrative Record does not show that
MacFarland was unable to implement S.S.’s IEP due to disability harassment and bullying.
c. Ongoing Failure to Provide Home Instruction (Count IV)
Plaintiff’s Amended Complaint before this Court also includes a count alleging that
Defendant violated the IDEA because “DCPS’ ongoing failure to provide home instruction has
continued before and since the issuance of the [Hearing Officer Determination], but for three (3)
hours of instruction (with no related services) provided in June 2013.” Am. Compl. ¶ 68. To
the extent that this count alleges a violation of the IDEA due to a failure to provide home
instruction prior to the issuance of the Hearing Officer Determination, the Hearing Officer
clearly ruled in Plaintiff’s favor on this issue. See AR at 34-35 (holding that “petitioner proved
7
It is clear from the record that the Hearing Officer found that ABA therapy was not
provided at MacFarland. Nevertheless, Plaintiff has raised concerns that there could be an
interpretation, based on certain testimony, that MacFarland was capable of providing ABA
therapy. See Pl.’s Mot. at 18-20. However, the record makes clear that MacFarland was not
providing ABA therapy and the Hearing Officer unequivocally determined that ABA therapy, as
it is defined, was not provided by MacFarland.
26
that respondent denied the student a FAPE from October 25, 2012, through the present by failing
to provide home-based instruction.”). During the administrative due process hearing, Plaintiff
voluntarily withdrew with prejudice her claim to compensatory education as relief for DCPS’
failure to provide home instruction. AR at 1450-51. As a result, there was no relief for the
Hearing Officer to order other than judgment in Plaintiff’s favor on liability. Accordingly, it is
not clear to the Court why Plaintiff is bringing a claim for failure to provide home instruction
before the issuance of the Hearing Officer Determination as this issue was already adjudicated in
Plaintiff’s favor during the administrative due process hearing.
To the extent that this count alleges a violation of the IDEA due to a failure to provide
home instruction since the issuance of the Determination, this count presents a new claim which
Plaintiff has failed to exhaust through the IDEA administrative complaint process. The issue
certified by the Hearing Officer was whether Defendant denied the student a FAPE “from
October 25, 2012, through the present” by failing to provide him home-based instruction. AR at
451, 895. Any claim that DCPS has failed to provide S.S. home instruction in the period since
the Determination was issued presents an entirely new issue which must first be raised in an
IDEA administrative complaint. See M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d 1153, 1159
(11th Cir. 2006) (explaining that “[s]ection 1415(i)(2)(A) of the IDEA, which allows parties to
file an action challenging an ALJ’s final decision, provides ‘any party aggrieved by the findings
and decision under this subsection shall have the right to bring a civil action with respect to the
complaint presented pursuant to this section’ . . . [thus] to pursue claims [not raised in the due
process hearing being challenged in district court], the plain language of the IDEA required
Appellants to file a separate administrative complaint to raise that issue and exhaust all
administrative remedies regarding that complaint before filing a judicial action.” (emphasis in
27
original)). The Court notes that the need to exhaust this claim is particularly clear in light of the
fact that Plaintiff does not cite to any evidence supporting her allegation that DCPS has
continued to fail to provide home instruction. See Christopher W. v. Portsmouth Sch. Comm.,
877 F.2d 1089, 1094 (1st Cir. 1989) (explaining that the purpose of exhaustion is to “enable[ ]
the agency to develop a factual record, to apply its expertise to the problem, to exercise its
discretion, and to correct its own mistakes, and is credited with promoting accuracy, efficiency,
agency autonomy, and judicial economy.”). Accordingly, the Court enters summary judgment in
Defendant’s favor as to Count IV of Plaintiff’s Amended Complaint.
d. Section 504 Claims
Finally, Plaintiff brings before this Court several claims under Section 504 of the
Rehabilitation Act of 1973. Specifically, Plaintiff alleges that DCPS retaliated against her for
her protected activity advocating for educational services for her son by reporting her to CFSA
for neglect and referring her to the Superior Court to face criminal truancy charges. Plaintiff also
argues that DCPS violated Section 504 by allegedly subjecting S.S. to disability harassment and
a hostile environment and by denying S.S. a FAPE. For the reasons stated below, the Court
grants summary judgment in Defendant’s favor on all of Plaintiff’s Section 504 claims.
i. Retaliation (Count VII)
Defendant moves the Court to enter summary judgment in Defendant’s favor on
Plaintiff’s Section 504 retaliation claim because Plaintiff failed to exhaust her administrative
remedies as to this claim. Judicial review is generally unavailable under the IDEA unless all
administrative procedures have been exhausted. Honig v. Doe, 484 U.S. 305, 327
(1988) (discussing the Education of Handicapped Act, the immediate predecessor to the
IDEA); cf. Cox v. Jenkins, 878 F.2d 414, 419-21(D.C. Cir. 1989) (dismissing action under the
28
Education of Handicapped Act for failure to pursue all administrative avenues of redress).
Accordingly, “[a] court has no subject matter jurisdiction over an IDEA claim that has not first
been pursued through administrative channels.” Massey v. District of Columbia, 400 F.Supp.2d
66, 70 (D.D.C. 2005). Although exhaustion of administrative remedies under the IDEA is not
required “where exhaustion would be futile or inadequate,” Plaintiff bears the burden of
demonstrating the futility or inadequacy of the administrative process. Honig, 484 U.S. at 326–
27; see also Cox, 878 F.2d at 419 (dismissing complaint where parents had not made any
showing on the record that they were not required to exhaust their administrative remedies
because exhaustion would have been futile). “The controlling point of law here is that, absent a
showing that exhaustion would be futile or inadequate, a party must pursue all administrative
avenues of redress under the [IDEA] before seeking judicial review under the Act.” Cox, 878
F.2d at 419.
Significantly, the IDEA’s exhaustion requirement applies not only to claims brought
directly under the IDEA itself, but to any claims for relief available under the IDEA, regardless
of the statutory basis for such claims. The IDEA explicitly provides:
Nothing in this chapter shall be construed to restrict or limit the rights,
procedures, and remedies available under the Constitution . . . , title V of the
Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws
protecting the rights of children with disabilities, except that before the filing of a
civil action under such laws seeking relief that is also available under this
subchapter, the procedures [for an impartial due process hearing and
administrative appeal] shall be exhausted to the same extent as would be required
had the action been brought under this subchapter.
20 U.S.C. § 1415(l ). That is, although the IDEA does not “restrict or limit the rights,
procedures, and remedies available” under other applicable federal laws, a plaintiff must
nonetheless exhaust the administrative procedures set forth under the IDEA when “seeking relief
29
that is also available under” the IDEA, regardless of the statutory basis for such claims. Id.; see
also Polera v. Bd. of Ed. of Newburgh Enlarged City School Dist., 288 F.3d 478, 487–88 (2d Cir.
2002).
Plaintiff does not dispute that she was required to exhaust her retaliation claim per the
IDEA. Instead, Plaintiff argues that she “exhausted the retaliation issue to the extent possible”
by filing on March 20, 2013, a Section 504 claim discussing the retaliation, but “[d]efendants
made exhaustion of the retaliation claims futile by failing to schedule a hearing.” Pl.’s Opp’n. at
15. Plaintiff points to an email exchange “between the parties to try to obtain [a] Section 504
hearing per DCPS’ [Section 504] Procedural Manual,” id. at 15 n.100, in which a representative
of the Student Hearing Office explained that “Section 504 claims are outside the scope of work
of our IDEA hearing officers,” Pl.’s Opp’n. Ex. 11 (Email Exchange), ECF No. [49-11].
Plaintiff contends that “it was futile for [her] to include a separate 504 count in her Complaint
because [per the email exchange] the Student Hearing Office has no jurisdiction over 504 claims
and the Hearing Officer would have dismissed them.” Pl.’s Opp’n. at 15 n. 97.
The Court finds that Plaintiff neither made an effort to exhaust her Section 504 retaliation
claim per the IDEA nor demonstrated that exhaustion would have been futile. First, Plaintiff did
not exhaust her retaliation claim as required by the IDEA because she did not allege any facts
concerning retaliation by DCPS in her IDEA administrative complaint presently at issue8 or in
8
In her Opposition, Plaintiff claims to have described the retaliation “issue in four
paragraphs in the Complaint.” Pl.’s Opp’n. at 14 n. 95. However, in support of this proposition,
Plaintiff only cites to the entire administrative complaint and does not identify the four
paragraphs which contain allegations about the retaliation. The Court, in its thorough review of
the administrative complaint, fails to find any such allegations. Plaintiff does attach the referral
DCPS made to the Superior Court on February 11, 2013; however, the mere presence of a
referral document is insufficient to satisfy the requirement that allegations be made concerning
Plaintiff’s claim of retaliation by DCPS.
30
any other IDEA administrative complaint. The IDEA’s statutory language and case law are clear
that Plaintiff’s retaliation allegations must be exhausted through the IDEA’s procedures and
remedies and not just through any administrative procedures or remedies. See Weber v.
Cranston School Committee, 212 F.3d 41, 53 (1st Cir. 2000) (holding that “state and
federal complaint procedures other than the IDEA due process hearing do not suffice” to comply
with IDEA’s requirement of exhaustion of administrative remedies; “[e]ven the
[complaint resolution procedures (CRP)] . . . which implement IDEA, ‘are not an adequate
alternative to exhausting administrative remedies under IDEA.’ ” (citation omitted)); Rose v.
Yeaw, 214 F.3d 206, 209 n.1 (1st Cir. 2000) (explaining that the IDEA “mandates specific
procedures for the due process hearing”); Padilla v. Sch. Dist. No. 1 in the City and Cty. of
Denver, CO, 233 F.3d 1268, 1274 (10th Cir. 2000) (“the dispositive question generally is
whether the plaintiff has alleged injuries that could be redressed to any degree by the IDEA’s
administrative procedures and remedies” (emphasis added)). Here, Plaintiff filed a Section 504
complaint and sought to exhaust that non-IDEA administrative complaint. In order to properly
exhaust her retaliation claim pursuant to the IDEA, Plaintiff should have filed an IDEA
complaint in which she alleged the facts related to her retaliation claim.
Plaintiff’s argument that “it was futile for [her] to include a separate 504 count in her
Complaint because the Student Hearing Office has no jurisdiction over 504 claims and the
Hearing Officer would have dismissed them” misunderstands the scope and purpose of IDEA
exhaustion. Even if, as DCPS asserts in the cited email exchange, an IDEA hearing officer does
not have jurisdiction over an actual Section 504 complaint, the allegations related to a Section
504 claim still need to be raised before the IDEA hearing officer to the extent that they “relate
31
unmistakably to the evaluation and educational placement of [the student],”9 DeKalb, 446 F.3d at
1159, and “could be redressed to any degree by the IDEA’s administrative procedures and
remedies,” Padilla, 233 F.3d at 1274. For example, courts have repeatedly held that even
though an IDEA hearing officer is not able to offer monetary relief under the IDEA, a plaintiff
raising a claim for monetary damages for an educational injury must exhaust that claim before an
IDEA hearing officer if the claim could be redressed to any degree by the IDEA’s non-monetary
remedies. See Douglass v. District of Columbia, 605 F.Supp.2d 156, 166-67 (D.D.C. 2009)
(citing cases).
Likewise, although retaliation claims are not cognizable under the IDEA, courts have
regularly required plaintiffs to exhaust their retaliation claims through the IDEA administrative
process to the extent that they are related to the student’s evaluation and education. In DeKalb,
an Eleventh Circuit decision on which Plaintiff relies, the court of appeals held that plaintiff’s
parents needed to exhaust through the IDEA administrative process their Section 504 allegations
that the school district “harassed them at IEP meetings, wrote them intimidating letters in
response to their educational demands, and subjected [their child] to needless and intrusive
testing” in retaliation for the parents “advocat[ing] for their son’s legal rights to receive an
appropriate education and be free from discrimination based solely upon his disabilities.” 446
F.3d at 1158. The court of appeals found that the retaliation claims clearly related to the
student’s evaluation and education and thus were subject to exhaustion. Id. at 1158-59; see also
Rose, 214 F.3d at 210 (holding that all the plaintiff’s claims, including that the school “retaliated
9
The IDEA complaint provision in subchapter II broadly affords the “opportunity for any
party to present a complaint . . . with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or provision of a [FAPE] to such child.” 20
U.S.C. § 1415(b)(6) (emphasis added).
32
against [the student] in response to the [parents’] efforts to enforce his educational rights,” were
subject to the IDEA’s exhaustion requirement because they “relate unmistakably to the
evaluation and educational placement of [the student].”); Weber, 212 F.3d at 51-52 (holding that
plaintiff “had to invoke the due process hearing procedures of IDEA before filing her retaliation
claim in federal court pursuant to Section 504”). Similarly, here, DCPS indicated that an IDEA
hearing officer would not hear a Section 504 complaint, however, DCPS’ policy did not
prevent—and indeed case law requires—Plaintiff to raise the allegations related to her Section
504 retaliation claim in an IDEA complaint submitted to an IDEA hearing officer because they
clearly relate to S.S.’s educational placement and could potentially be redressed by IDEA
remedies. As Plaintiff did not raise her Section 504 retaliation allegations in any IDEA
complaint and failed to show that exhaustion was futile, the Court enters summary judgment in
Defendant’s favor as to Count VII of Plaintiff’s Amended Complaint.
ii. Disability Harassment and Hostile Environment (Count V)
Plaintiff next alleges that Defendant violated Section 504 of the Rehabilitation Act by
creating a hostile environment due to bullying and disability harassment. Am. Compl. ¶ 70.
Section 504 provides that “[n]o otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance . . . .” 29 U.S.C. § 794; see also Robinson v. District of
Columbia, 535 F.Supp.2d 38, 41 (D.D.C. 2008) (“Section 504 prohibits programs and entities
that receive federal funding from denying benefits to, or otherwise discriminating against, a
person ‘solely by reason’ of that individual’s handicap.”). To state a Section 504 claim based on
alleged IDEA violations, the D.C. Circuit has consistently noted that, “something more than a
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mere failure to provide the [FAPE] . . . must be shown.” Lunceford v. District of Columbia Bd.
of Ed., 745 F.2d 1577, 1580 (D.C. Cir. 1984) (quoting Monahan v. Nebraska, 687 F.2d 1164,
1170 (8th Cir. 1982)); Hinson v. Merritt Educational Center, 521 F. Supp.2d 22, 28 (D.D.C.
2007); Alston v. District of Columbia, 770 F.Supp.2d 289, 298 (D.D.C. 2011). A plaintiff must
allege that “(1) the disabled student was treated differently from non-disabled students solely
because of his or her disabilities, and (2) school officials acted in bad faith or demonstrated gross
misconduct.” Jackson v. District of Columbia, 826 F.Supp.2d 109, 125 (D.D.C. 2011), aff’d No.
11-7156, 2013 WL 500809 (Jan. 18, 2013) (citing Walker v. District of Columbia, 157 F. Supp.
2d 11, 36 (D.D.C. 2001)); see also R.S. v. District of Columbia, 292 F. Supp.2d 23, 28 (D.D.C.
2003). “Liability will not be imposed so long as the ‘state officials involved have exercised
professional judgment, in such a way as not to depart grossly from accepted standards among
educational professionals.’ ” Walker, 157 F. Supp.2d at 35-36 (quoting Monahan, 687 F.2d at
1171).
Plaintiff’s Section 504 disability harassment claim largely mirrors her IDEA disability
harassment/bullying claim, except that Plaintiff also includes within the claim allegations of
harassment that cover S.S.’s time at Garrison Elementary School. As the events occurring
during S.S.’s time at Garrison were not at issue before the Hearing Officer, they have not been
exhausted and thus are not properly before this Court. Consequently, the Court will not consider
these allegations in evaluating Plaintiff’s claim. Otherwise, Plaintiff’s Section 504 disability
harassment claim again points to the incidents in which S.S. sustained physical injuries while at
MacFarland Middle School, including Plaintiff’s allegation that the Classroom Aide used
improper physical restraint with S.S, the head injury S.S. received from being hit in the head
with a ball during physical education class, and the incident in which S.S. was pushed down by a
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student running away from a teacher in the cafeteria. See Am. Compl. ¶¶ 71, 74, 77, 82. As
established in Part B(a)(ii), the Court finds that the Hearing Officer properly discredited
Plaintiff’s testimony about S.S.’s injuries allegedly inflicted by the Classroom Aide. Since there
was otherwise no evidence in the Administrative Record that the Classroom Aide inflicted injury
on S.S., this allegation does not support Plaintiff’s Section 504 claim.
As for the incidents in the physical education class and the cafeteria, the Court has
already found that there was not sufficient evidence in the Administrative Record to show that
these incidents caused S.S. to be denied the benefits of a FAPE. See Part Part B(a)(ii).
Accordingly, the Court finds that S.S. was not denied benefits or otherwise discriminated against
solely because of his disability and enters summary judgment on Count V in Defendant’s favor.
iii. Failure to Provide a FAPE (Count VI)
Finally, Plaintiff alleges that Defendant violated Section 504 by failing to provide S.S. a
FAPE. Plaintiff specifically identifies several accommodations that she alleges Defendant failed
to provide thus denying S.S. a FAPE. As with Plaintiff’s Section 504 disability harassment
claim, Plaintiff again presents allegations that were not raised in the administrative due process
hearing and thus were not properly exhausted. Specifically, Plaintiff makes two allegations
about services not provided and actions not taken at Garrison Elementary School, as well as an
allegation that DCPS failed to conduct updated evaluations of S.S. after the head injuries he
received and an allegation that DCPS failed to provide reasonable accommodations for S.S.’s
vision and motor impairments. As these allegations were not exhausted before the Hearing
Officer, they are not properly before this Court and thus will not be considered.
Plaintiff also alleges that DCPS is liable under Section 504 for denying S.S. a FAPE by
failing to place him in a safe school environment. This allegation traces Plaintiff’s inappropriate
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educational placement IDEA claim (Count II), for which the Court has already denied Plaintiff
summary judgment because the Administrative Record does not establish that S.S. failed to make
progress at MacFarland due to school avoidance triggered by bullying or disability harassment.
Accordingly, the Court finds that this allegation also does not support a finding of a denial of a
FAPE in violation of Section 504.
The only two allegations that Plaintiff has presented under this count that have properly
been exhausted and that actually allege a denial of a FAPE are the allegations that DCPS denied
S.S. a FAPE by failing to provide home instruction and by failing to provide an optometry
evaluation. Indeed, these are the two bases on which the Hearing Officer found DCPS to have
denied S.S. a FAPE in her March 30, 2013, Determination. However, to state a Section 504
claim based on alleged IDEA violations, “something more than a mere failure to provide the
[FAPE] must be shown.” Lunceford, 745 F.2d at 1580 (quoting Monahan, 687 F.2d at 1170).
Plaintiff needs to show that the school officials acted in bad faith or demonstrated gross
misjudgment in denying S.S. these services. Alston, 770 F.Supp.2d at 298.
The Court finds that there is nothing in the Administrative Record or the Hearing Officer
Determination showing that DCPS acted in bad faith or exercised gross misjudgment in failing to
provide S.S. home instruction or conduct the optometry evaluation. As evidence of DCPS’ bad
faith and gross misjudgment, Plaintiff first points to evidence that DCPS’ only witness at the due
process hearing lied about her credentials during the hearing10 and to evidence the DCPS
10
The Court notes that this is the only proposed evidence of bad faith or gross
misjudgment for which Plaintiff provides any argument or legal support in her briefs. For all of
the other proffered evidence, Plaintiff simply directs the Court to her declaration attached to her
Opposition to Defendant’s Cross-Motion for Summary Judgment, which contains a statement of
alleged facts and several allegations of bad faith and gross misjudgment, but does not include
any citations to the Administrative Record. See Pl.’s Opp’n., Ex. 8 (Street Decl.), ECF No. [49-
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retaliated against her. However, the Court denied Plaintiff leave to supplement the
Administrative Record with either of these pieces of irrelevant evidence. Accordingly, the Court
will not consider either of these allegations as evidence of DCPS’ bad faith or gross
misjudgment.
Plaintiff raises the following additional examples of alleged bad faith and/or gross
misjudgment, but they have no relation to the only two relevant denials of services—the
optometry evaluation and home instruction—and no aggravating factors are otherwise associated
with these two denials of services. Moreover, these individual claims do not support a
conclusion that they represent bad faith and/or gross misjudgment. First, Plaintiff’s claim that
DCPS did not hire or train appropriate autism staff was not raised before the Hearing Officer and
there is no evidence in the record to support the claim. Street Decl. ¶ 34. That Plaintiff’s
attorney was not copied in an email regarding home instruction does not rise to the level of bad
faith and/or gross misjudgment. Id. at ¶ 27. Plaintiff also alleges that MacFarland did not
appropriately respond to S.S.’s injuries but points to no evidence that the school ignored the
injuries if S.S. was injured at school. Id. at ¶¶ 10-13, 21-23. Plaintiff further alleges that she was
not notified promptly of his injuries by the school. Id. at ¶¶ 13, 21-23. Although there is some
dispute as to when Plaintiff was notified, compare Pl.’s Stmt. of Facts ¶ 112, ECF No. [46-2]
with Def.’s Cross-Mot. at 8, Plaintiff points to no policy or procedure regarding parental
notification that was violated. In addition, Plaintiff alleges that the teachers at MacFarland
Middle School ignored her repeated requests to keep S.S. out of the physical education class, see
8]. The Court has nevertheless taken the time to determine whether the allegations of bad faith
and gross misjudgment Plaintiff makes in her declaration are supported by the Administrative
Record and/or relevant to Defendant’s failure to provide home instruction and the optometry
evaluation.
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Street Decl. ¶ 17, but cites to no evidence supporting this allegation and, in fact, testified at two
points during the due process hearing that the teachers at MacFarland honored her request to not
have S.S. in the physical education class. See AR at 976-77, 1129-30. Finally, Plaintiff alleges
in her Reply in support of her Motion for Summary Judgment that “Defendant’s choices were
motivated by avoiding the expenses inherent in properly programming for a student with
complex disabilities,” but provides no further explanation nor cites to any evidence in the
Administrative Record to support this bald assertion. Pl.’s Reply at 19.
In sum, there is no evidence to support that DCPS acted in bad faith and/or exercised
gross misjudgment. 11 Accordingly, the Court finds that Plaintiff has failed to demonstrate the
absence of a genuine dispute of material fact with respect to whether Defendant acted with bad
faith or gross misjudgment in denying S.S. home instruction and the optometry evaluation. The
Court enters summary judgment in favor of Defendant on Count VI of Plaintiff’s Amended
Complaint.
e. Failure to Render a Fair and Proper Decision (Count VIII)
Plaintiff’s final count—Failure of Hearing Officer to Render a Fair and Proper
Decision—effectively restates several of the arguments with which the Court has already dealt
and rejected throughout the opinion. The Court finds that the Hearing Officer thoroughly set out
in her Determination all of the evidence, that Plaintiff has not pointed to any evidence that the
11
The Court also notes that Plaintiff’s withdrawal of her request for compensatory
education as relief for DCPS’ failure to provide S.S. home instruction undermines Plaintiff’s
argument that DCPS failed to provide S.S. home instruction in bad faith. In withdrawing her
request for compensatory education—the only relief available for a denial of home instruction—
Plaintiff effectively withdrew her home instruction claim. The Court finds that Plaintiff’s
willingness to withdraw this claim undercuts her present argument that Defendant’s failure to
provide home instruction constituted an egregious violation of Section 504.
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Hearing Officer did not consider, and that the Hearing Officer’s findings and credibility
determinations are reasonable and based on the record. The Court agrees with the Hearing
Officer’s findings and conclusions of law. That Plaintiff does not agree with the Hearing
Officer’s Determination does not make it unfair or improper. Accordingly, the Court enters
judgment in Defendant’s favor on Count VIII.
IV. CONCLUSION
For the reasons stated, the Court DENIES Plaintiff’s [34] Motion for Leave to Submit
Additional Evidence. In addition, the Court DENIES Plaintiff’s [46] Motion for Summary
Judgment and GRANTS Defendant’s [47] Cross-Motion for Summary Judgment. Accordingly,
the Court enters judgments in favor of Defendant on all eight counts in Plaintiff’s Amended
Complaint and DISMISSES Plaintiff’s Amended Complaint.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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