Reid-Witt v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KARLA REID-WITT,
on behalf of C.W.,

Plaintiff,

v. Civil Action No. 1:19-cv-02473 (CJN)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

C.W. was a student at Washington’s Benjamin Banneker High School before her

disabilities interfered with her studies. See generally Am. Compl., ECF No. 7. She was granted

various accommodations but her multiple requests for special-education services were denied.

See generally id. Unable to maintain consistent attendance, C.W. fell below the requirements for

continued enrollment and the school asked her to withdraw. See generally id. After exhausting

administrative remedies, C.W’s mother, Karla Reid-Witt, filed this suit alleging a violation of the

Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and disability

discrimination under the Rehabilitation Act, 29 U.S.C. § 794, the Americans with Disabilities

Act (ADA), 42 U.S.C. § 12101 et seq., and the District of Columbia Human Rights Act

(DCHRA), D.C. Code § 2-1401.01 et seq. See generally Am. Compl. The District moves to

dismiss the discrimination counts for failure to state a claim. See generally Def.’s Partial Mot. to

Dismiss Pl.’s Am. Compl. (“Mot.”), ECF No. 8. For the reasons explained below, the Court

grants the Motion in part and denies it in part.

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 I. Background

Banneker is a selective public high school; among other requirements, students must

maintain a minimum grade-point average and a record of community service to remain enrolled. 1

Am. Compl. ¶ 74. C.W. entered Banneker in the ninth grade during the 2016–17 school year.

Id. ¶ 13. She suffers from anxiety and depression, which cause difficulties with “[self-]

organization, time management, completing assignments, memory, and focus,” as well as at least

two instances of suicidal ideation. Id. ¶¶ 14–15, 47–49.

After a breakdown caused C.W.’s temporary hospitalization in the middle of ninth grade,

Reid-Witt requested that the District of Columbia Public Schools (DCPS) arrange an IDEA

Individual Education Program for C.W. to complete either at home or in the hospital. Id. ¶ 18.

Reid-Witt supplied supporting documentation from C.W.’s therapist. Id. ¶ 20. C.W. remained

hospitalized for a portion of the spring semester and “attended Banneker on a part-time basis,”

but DCPS did not respond to Reid-Witt’s request for home study. Id. ¶¶ 19, 25. After C.W.

returned to school full-time in May 2017, DCPS informally notified Reid-Witt that C.W. was

ineligible for home instruction. Id. ¶¶ 26–28. DCPS instead issued an accommodation plan

under section 504 of the Rehabilitation Act that permitted C.W. to drop two courses and gave her

various testing and learning accommodations. Id. ¶ 30; see also Section 504 Plan of Jun. 9,

2017, ECF No. 8-1. C.W. missed 71 days of the ninth grade. Am. Compl. ¶ 31.

Before C.W.’s tenth-grade year commenced, DCPS formally denied Reid-Witt’s request

for special-education services. Id. ¶¶ 32–34. It also rejected a request to use an assistive

electronic device in class. Id. ¶¶ 37–40; see also Section 504 Plan of Aug. 31, 2017, ECF No.

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On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must, of
course, accept well pleaded facts in the Complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).

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8-2; Section 504 Plan of Sep. 5, 2017, ECF No. 8-3. C.W. missed 67 days of school during the

tenth grade, including one incident during which she ran away from school for the day and

another instance of suicidal ideation that required hospitalization. Am. Compl. ¶¶ 42–49. DCPS

kept the accommodations in place but maintained its position that C.W. was ineligible for

special-education services. Id. ¶¶ 50–53.

The Parties reached an impasse during the eleventh-grade year. C.W. attended school

only one day that year, and DCPS repeatedly rejected Reid-Witt’s requests for special-education

services. Id. ¶¶ 54–72; see also Section 504 Plan of Aug. 27, 2018, ECF No. 8-4. The school

informed Reid-Witt that C.W.’s grade-point average and record of community-service hours had

fallen below the acceptable minimums and asked her to transfer to one of the District’s non-

selective high schools. Am. Compl. ¶¶ 73–78; Def.’s Ltr. of Feb. 25, 2019, ECF No. 8-5. Reid-

Witt decided instead to homeschool C.W. for the 2019–20 school year but has been largely

unsuccessful because of C.W.’s disabilities. Id. ¶¶ 85–89.

Reid-Witt filed an administrative complaint alleging both the denial of a Free

Appropriate Public Education and disability discrimination. Id. ¶ 1; see also 34 C.F.R.

§ 104.33(a) (“A recipient [of federal funding] that operates a public . . . secondary education

program . . . shall provide a free appropriate public education to each qualified handicapped

person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s

handicap.”). On June 10, 2019, a Hearing Officer denied the complaint after finding that C.W.

did not qualify for special education under the IDEA and that he lacked jurisdiction over the

discrimination claim. Am. Compl. ¶¶ 90–100; Hearing Officer’s Decision, ECF No. 1-1. Reid-

Witt then filed this lawsuit. The Amended Complaint contains three counts: (I) a challenge to

the denial of the IDEA complaint, id.; (II) disability discrimination under the Rehabilitation Act,

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id. ¶¶ 101–75; and (III) disability discrimination under the ADA and the DCHRA, id. ¶¶ 176–

256. The District moves to dismiss in part, arguing that Counts II and III fail to state a claim.

See generally Mot. The District does not yet challenge Count I. See id. at 1.

II. Legal Standard

Ordinarily, “[a] pleading that states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court

must “treat the complaint's factual allegations as true . . . and must grant plaintiff the benefit of

all inferences that can be derived from the facts alleged.” Holy Land Found. for Relief & Dev. v.

Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (internal quotation omitted). Although the Court

accepts all well pleaded facts in the Complaint as true, “[f]actual allegations must be enough to

raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). “While a complaint . . . does not need detailed factual allegations, a plaintiff’s obligation

to provide the grounds of [her] entitlement to relief requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Id. at 554–55

(internal quotations and citations omitted). The claim to relief must be “plausible on its face,”

enough to “nudge[ the] claims across the line from conceivable to plausible.” Id. at 570. The

Court may also consider “any documents either attached to or incorporated in the complaint and

matters of which [the Court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial

Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). 2

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Reid-Witt attached a copy of the Hearing Officer’s Decision to her original Complaint, ECF
No. 1, but attached nothing to her Amended Complaint. See generally Hearing Officer’s
Decision. The District attached to its Motion all four versions of C.W.’s “Section 504 Plan,”
which outline specific disability accommodations the school granted at various times and which
Reid-Witt referenced in the Amended Complaint. ECF Nos. 8-1–8-4; see also Am. Compl.
¶¶ 30, 34, 52, 99 (referencing the plans). It also attached the letter in which it asked C.W. not to

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 III. Analysis

Reid-Witt’s claims fall into three distinct categories even though they arise out of the

same events. In Count I, Reid-Witt challenges the Hearing Officer’s administrative

determination that C.W. was ineligible for special-education services under the IDEA. Am.

Compl. ¶¶ 90–100. The IDEA is the primary vehicle for such claims and “is of particular

importance in this case.” Holmes-Ramsey v. District of Columbia, 747 F. Supp. 2d 32, 35

(D.D.C. 2010). One of the Act’s purposes is “to ensure that all children with disabilities have

available to them a free appropriate public education that emphasizes special education and

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). “‘Implicit’ in the IDEA’s

guarantee ‘is the requirement that the education to which access is provided be sufficient to

confer some educational benefit upon the handicapped child.’” Holmes-Ramsey, 747 F. Supp. 2d

at 35 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200

(1982)). To qualify for protection under the IDEA, a student must have a disability and, “by

reason thereof, need[] special education and related services.” 20 U.S.C. § 1401(3)(A).

The IDEA and its implementing regulations establish a comprehensive administrative

process for adjudicating disputes, including the ability to file a due-process complaint and obtain

an adjudication from a Hearing Officer. 20 U.S.C. § 1415; 34 C.F.R. §§ 300.507–15.

Complainants who are “aggrieved by the findings and decisions made” by the Hearing Officer

may “bring a civil action with respect to the complaint” in the district court. 20 U.S.C.

§ 1415(i)(2); 34 C.F.R. § 300.516. It is that administrative process in which students and their

return to Banneker. ECF No. 8-5, see also Am. Compl. ¶ 166 (referencing the letter). Reid-Witt
does not seem to object to the Court’s consideration of those documents.

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families may challenge the alleged denial of a Free Appropriate Public Education because of

particular problems with a student’s Individual Education Plan, or, as in this case, the

determination that a student is ineligible for such services altogether. Id. Reid-Witt filed such a

complaint and, having received an adverse determination, seeks judicial review of that decision

in Count I. Am. Compl. ¶¶ 90–100. If Reid-Witt prevails on her IDEA claim, she will be

entitled only to equitable relief in the form of compensatory education and reimbursement for

out-of-pocket costs of “educational placements or related services to which [she] is later found to

be entitled.” Walker v. District of Columbia, 969 F. Supp. 794, 795–96 (D.D.C. 1997).

Reid-Witt’s other two sets of claims allege disability discrimination more generally. The

IDEA does not preclude a student from raising additional claims under other statutes so long as

the student first exhausts her administrative remedies under the IDEA. 20 U.S.C. § 1415(l).

Unlike the IDEA, the Rehabilitation Act, ADA, and DCHRA may permit recovery of

compensatory damages and other remedies. Walker, 969 F. Supp. at 797–98; but see Diaz-

Fonseca v. Puerto Rico, 451 F.3d 13, 19 (1st Cir. 2006) (“Where the essence of the claim is one

stated under the IDEA . . . , no greater remedies than those authorized under the IDEA are made

available by recasting the claim as one brought under [other causes of action].”). Reid-Witt

alleges a failure to accommodate C.W.’s individual disabilities under the Rehabilitation Act in

Count II, Am. Compl. ¶¶ 101–69, and under the ADA and DCHRA in Count III, id. ¶¶ 176–250.

Buried within those two counts, however, is a third theory of liability. Reid-Witt alleges

that Banneker had no special-education students during the last few years and suggests that that

fact implies that Banneker does not offer special education at all, calling into question whether

DCPS’s denials of Reid-Witt’s requests were genuine. Am. Compl. ¶¶ 79–81. She therefore

alleges that the District has an illegal policy-or-practice of refusing to fund special-education

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programs at its selective high schools, denying such services to students at those schools under

the pretext that the students do not qualify for them, and funneling the students to less

competitive high schools where such services are available. Am. Compl. ¶¶ 170–75; 251–56.

“While the [IDEA] addresses incorrect or erroneous special education treatment, the

ADA[, Rehabilitation Act, and DCHRA] address[] discrimination against the disabled student.”

Jackson v. District of Columbia, 826 F. Supp. 2d 109, 126 (D.D.C. 2011). Because the IDEA’s

administrative process is the primary vehicle for adjudicating educational disputes, courts require

plaintiffs to show “something more than a mere failure to provide the ‘free and appropriate

education’ required by the [IDEA]” to state a claim under the other statutes. Walker, 969 F.

Supp. at 797 (quoting Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984)).

Here, the District argues that Reid-Witt fails to make that showing and moves to dismiss Counts

II and III in their entirety. See generally Mot.

A. As-Applied Disability Discrimination Claims

1. Count II: Rehabilitation Act

Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with

a disability . . . shall, solely by reason of her . . . 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(a), including “a local educational

agency,” id. § 794(b)(2)(B). It incorporates the ADA’s standards for evaluating disability-

discrimination claims. Id. § 794(d). To state a claim, Reid-Witt must therefore plausibly allege

“(1) that [C.W.] is qualified under the Acts; (2) that [C.W. was] excluded from participation in[

or has] been denied the benefits, services, programs, or other activities for which the [District] is

responsible or otherwise discriminated against; and (3) that the exclusion, denial, or

discrimination [was] by reason of [C.W.’s] disability.” Pl.’s Opp’n to Def.’s 2d Partial Mot. to

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Dismiss (“Opp’n”) at 4, ECF No. 10 (citing Seth v. District of Columbia, No. 18-cv-1034, 2018

WL 4682023, at *9 (D.D.C. Sep. 28, 2018); Pierce v. District of Columbia, 128 F. Supp. 3d 250

(D.D.C. 2015)). Reid-Witt alleges a failure to accommodate C.W.’s disabilities but does not

allege disparate treatment or impact. Opp’n at 4 (citing Seth, 2018 WL 4682023 at *10).

a. Legal Standard for Evaluating Alleged Discrimination

As explained above, to state a Rehabilitation Act claim in the educational context, Reid-

Witt must satisfy the general criteria for disability discrimination and must also allege

“something more than a mere failure to provide the ‘free appropriate education’ required by [the

IDEA].” Lunceford, 745 F.2d at 1580 (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th

Cir. 1982)). In other words, “[she] must show that . . . [C.W.] was discriminated against ‘solely

by reason of [her] handicap.’” Walker, 969 F. Supp. at 797 (quoting 29 U.S.C. § 794(a))

(emphasis added). To make that showing, judges in this jurisdiction typically require a plaintiff

to allege either “bad faith or gross misjudgment on the part of a defendant.” Jackson, 826 F.

Supp. 2d at 122.

The D.C. Circuit has never squarely adopted that standard, but in Lunceford (which dealt

with claims under the Rehabilitation Act and the Education for All Handicapped Children Act),

it quoted the Eighth Circuit’s decision in Monahan for the general proposition that the

Rehabilitation Act requires more than just a showing that the school’s response was inadequate.

See Lunceford, 745 F.2d at 1580 (quoting Monahan, 687 F.2d at 1170). Judge Friedman later

looked to Monahan for more guidance and adopted its “bad faith or gross misjudgment”

standard. See Walker, 969 F. Supp. at 797 (quoting Monahan, 687 F.2d at 1170–71). All other

judges in this District who have faced the question seem to have followed suit. See, e.g., R.S. v.

District of Columbia, 292 F. Supp. 2d 23, 28 (D.D.C. 2003) (Huvelle, J.); Henneghan v. DCPS,

597 F. Supp. 2d 34, 37 (D.D.C. 2009) (Kennedy, J.); Holmes-Ramsey, 747 F. Supp. 2d at 38–39

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(Kollar-Kotelly, J.); Alston v. District of Columbia, 770 F. Supp. 2d 289, 298 (D.D.C. 2011)

(Urbina, J.); Jackson, 826 F. Supp. 2d at 122 (Rothstein, J.); B.D. v. District of Columbia, 66 F.

Supp. 3d 75, 80 (D.D.C. 2014) (Leon, J.); DL v. District of Columbia, 109 F. Supp. 3d 12, 23–24

(D.D.C. 2015) (Lamberth, J.).

Reid-Witt nevertheless argues for a different standard. She contends that, rather than

“bad faith or gross misjudgment,” she should only have to allege “deliberate indifference.”

Opp’n at 5. She relies primarily on Pierce for the proposition that “the Rehabilitation Act and

ADA are targeted to address more subtle forms of discrimination than merely obviously

exclusionary conduct, and it is consistent with these motivations to employ a standard of

deliberate indifference, rather than one that targets animus.” 128 F. Supp. 3d at 278 (internal

quotations omitted). But Pierce dealt with accommodations for prisoners, not students, id. at

254, and the obvious distinction is that the IDEA provides a separate process for students’

claims. Reid-Witt’s other citations fare no better. See Opp’n at 5 (citing Liese v. Indian River

Cty. Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012) (adopting deliberate-indifference standard

for patient’s claim against hospital); Meagley v. City of Little Rock, 639 F.3d 384, 389 (8th Cir.

2011) (evaluating patron’s claim against zoo under the deliberate-indifference standard)).

To be sure, some courts elsewhere have applied the deliberate-indifference standard to

students’ claims; Pierce cited one such decision. See 128 F. Supp. 3d at 278 (citing S.H. ex rel

Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013)); see also Opp’n at 6–7

(citing H. v. Montgomery Cty. Bd. of Educ., 784 F. Supp. 2d 1247, 1267–68 (M.D. Ala. 2011)).

But Pierce had no occasion to address the educational context and did not cite any cases in this

jurisdiction applying the tougher standard. See 128 F. Supp. 3d at 278–79. Likewise, S.H. took

its standard from non-school Rehabilitation Act decisions without considering the interplay with

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the IDEA, 729 F.3d at 262–63, and H. only used the deliberate-indifference standard because the

parties there argued that it applied, so the court assumed that it was relevant without deciding the

question, 784 F. Supp. 2d at 1261.

Perhaps realizing that her citations do not sufficiently explain why the Court should

depart from the standard applied by other judges in this district, Reid-Witt argues that

“[d]eliberate indifference [is] just as bad if not worse than gross misconduct or bad faith.”

Opp’n at 6. She relies heavily on a magistrate judge’s unpublished opinion containing a long

discussion on the relationship between the two standards and how some conduct may satisfy

either one. See Opp’n at 6 (citing Hamilton Sch. Dist. v. Doe, No. 04-C-876, 2005 WL 3240597

(E.D. Wis. Nov. 29, 2005)). There’s some merit to that argument; a plaintiff fails to show bad

faith or gross misjudgment if the “officials involved have exercised professional judgment[] in

such a way as not to depart grossly from accepted standards among educational professionals.”

Walker v. District of Columbia, 157 F. Supp. 2d 11, 35–36 (D.D.C. 2001) (quoting Monahan,

687 F.2d at 1171). That requirement is similar to the deliberate-indifference standard prisoners

must meet in Eighth Amendment claims alleging insufficient medical attention. See Estelle v.

Gamble, 429 U.S. 97, 105–06 (1976). “[I]n those cases where unnecessary risk may be

imperceptible to a lay person[,] . . . a medical professional’s treatment decision must be such a

substantial departure from accepted professional judgment, practice, or standards as to

demonstrate that the person responsible did not base the decision on such a judgment.” Petties v.

Carter, 836 F.3d 722, 729 (7th Cir. 2016) (en banc) (internal quotation omitted).

It’s possible, therefore, that deliberate indifference might be evidence of bad faith or

gross misjudgment, cf. T.W. ex rel Wilson v. Sch. Bd. of Seminole Cty., 610 F.3d 588, 604–05

(11th Cir. 2010) (distinguishing between the two standards and declining to take a position), but

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Reid-Witt has not given the Court any reason to depart from the more stringent standard

plaintiffs must meet to state a Rehabilitation Act claim in conjunction with an IDEA claim.

b. Reid-Witt’s Allegations

For Count II to survive the Motion, Reid-Witt must therefore allege both that the District

discriminated against C.W. “solely by reason of [her] handicap” and that it exhibited “bad faith

or gross misjudgment” in doing so. Walker, 157 F. Supp. 2d at 35 (internal quotations omitted).

“Only in the rarest of cases will a plaintiff be able to prove that a school system’s conduct is so

persistent and egregious as to warrant such a unique remedy not otherwise provided for by the

IDEA itself.” Id. at 36. In Douglass, for example, a student challenged a DCPS policy that

prohibited him from earning graduation credit by taking special-education classes. Douglass v.

District of Columbia, 605 F. Supp. 2d 156, 168 (D.D.C. 2009). That amounted to an allegation

of gross misjudgment, the court held, because it alleged a facially discriminatory policy. Id.

In other cases, courts have dismissed Rehabilitation Act claims because they usually

“amount to garden variety IDEA violations and . . . contain[] no indication that the[] alleged

violations occurred due to gross misjudgment.” Holmes-Ramsey, 747 F. Supp. 2d at 39. 3 In

Walker, “conduct including misdiagnosing a student's disability, failing to provide an [Individual

Education Plan] for several school years and failing to provide an appropriate placement for five

years collectively did not meet th[e] standard.” Alston, 770 F. Supp. 2d at 300 (citing Walker,

157 F. Supp. 2d at 13–14). Other cases involved similar facts. See id. (collecting cases).

Here, Reid-Witt cannot plausibly allege that the District was completely indifferent to

C.W.’s disabilities. The school promulgated four separate accommodation plans allowing C.W.

3
In Henneghan, the court appears to have been generous in permitting a pro se plaintiff’s claim
to move forward. 597 F. Supp. 2d at 37.

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extra time to turn in assignments, the ability to complete and turn in work virtually, alternative

testing times and locations, a pass to leave class at any time to see a school counselor, periodic

psychological services, automatic distribution of class lecture notes or PowerPoint presentations,

preferential seating in classrooms, increased progress monitoring and reporting, the ability to

accumulate community service hours under alternative arrangements, and special conditions

during standardized testing. See, e.g., Section 504 Plan of Aug. 31, 2017. Those steps surely do

not amount to complete indifference to C.W.’s circumstances.

Reid-Witt instead points to the following events as indications of the District’s bad faith:

(1) the failure to grant accommodations recommended by C.W.’s physician, including home

study, Am. Compl. ¶¶ 124, 130, 132, 147–50; (2) the failure to augment accommodations when

they proved ineffective over time, id. ¶¶ 137–39, 143–44, 146, 154–58, 162–65; and (3) the

District’s decision to transfer C.W. from Banneker to a less competitive high school rather than

accommodate her disability, id. ¶¶ 166–75. But the cases on which she relies in arguing that she

has adequately alleged bad faith are distinguishable. In H., the court found that a failure to

update a student’s section 504 plan three years in a row could constitute deliberate indifference,

but it made no observations about whether that same conduct may have constituted bad faith or

gross misjudgment. See Opp’n at 6 (citing H., 784 F. Supp. 2d at 1267–68). Likewise, in K.D.

ex rel J.D. v. Starr, an unexplained rescission of an accommodation recommended by the child’s

doctor plus a consistent failure to implement accommodations the school had already approved

in a Section 504 Plan stated a claim for bad faith or gross misjudgment. See Opp’n at 6–7 (citing

55 F. Supp. 3d 782 (D. Md. 2014)). Reid-Witt has not alleged any such conduct here.

Finally, Reid-Witt looks to an Eighth Circuit case in which school officials may have

exhibited bad faith or gross misjudgment by failing “to address a student’s needs with a parent

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by returning phone calls.” Opp’n at 7 (citing M.P. ex rel K. v. Indep. Sch. Dist. No. 721, 326

F.3d 975, 982–83 (8th Cir. 2003)). A closer look at that decision, however, reveals that those

officials (1) failed to update the student’s Section 504 Plan after his family disclosed to the

school that the student had been diagnosed with schizophrenia; (2) failed to return the mother’s

weekly phone calls to discuss both ongoing harassment of the student by other students because

of his disability and the school’s plan “to either drastically alter [the student’s] school day or

send him to an alternative school for behaviorally troubled students;” and (3) promised (prior to

enrollment) to cover the costs of transporting the student to school and then withdrew that

promise and left the student to pay for his own transportation after he matriculated. M.P., 326

F.3d at 982. Here, Reid-Witt has not alleged that the District failed to craft Section 504 Plans or

failed to implement the accommodations those plans laid out in response to diagnoses from

C.W.’s physician, nor has she alleged that the District rescinded benefits it had promised to

confer or failed to address C.W.’s diagnosis altogether.

Allegations that the District failed to grant specific accommodations and failed to update

accommodations over time are central to Reid-Witt’s claim. Am. Compl. ¶¶ 124, 146–47, 162.

But those allegations amount to “garden variety IDEA violations” and are not cognizable under

the Rehabilitation Act. Holmes-Ramsey, 747 F. Supp. 2d at 39. Reasonable minds can disagree

about which accommodations are appropriate (or even feasible), and the Amended Complaint’s

own allegations state that the District at least engaged with those questions, even if the answers

may not have been optimal. Reid-Witt has not stated a claim for failure to accommodate C.W.’s

disabilities under the Rehabilitation Act.

2. Count III: ADA & DCHRA

The as-applied portion of Count III repeats Count II’s allegations under different

statutory causes of action. Am. Compl. ¶¶ 176–250. The ADA provides that “no qualified

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individual with a disability shall, by reason of such disability, be excluded from participation in

or denied the benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. “A regulation implementing Title II

requires a public entity to make ‘reasonable modifications’ to its ‘policies, practices, or

procedures’ when necessary to avoid such discrimination.” Fry v. Napoleon Cmty. Schs., 137 S.

Ct. 743, 749 (2017) (quoting 28 C.F.R. § 35.130(b)(7)). Claims under the DCHRA, in turn, are

subject to the same standards as ADA claims, so the analysis merges. A.M. v. Bridges Pub.

Charter Sch., No. 17-cv-177, 2019 WL 1932579, at *2 n.7 (D.D.C. May 1, 2019).

The Parties argue at length over whether C.W. is a “qualified individual” and whether the

denial of particular accommodations she requested—to include special-education services—was

done “by reason of [her] disability.” 42 U.S.C. § 12132. But to the extent that Reid-Witt

challenges the District’s determination that C.W. was ineligible for an Individual Education Plan

or the school’s failure to grant particular accommodations, those allegations are duplicative of

the IDEA claim contained in Count I and therefore fail to state a claim.

The ADA’s standard is slightly less strict than the Rehabilitation Act’s standard because

it does not require that the discrimination be “solely” because of C.W.’s disability; the disability

must simply be a motivating factor in the alleged discrimination. Alston, 770 F. Supp. 2d at 297

(citing Foster v. Arthur Andersen, L.L.P., 168 F.3d 1029, 1033 (7th Cir. 1999), abrogated on

other grounds by Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010)). But as

with the Rehabilitation Act, “something more than a mere violation of the [IDEA] is necessary in

order to show a violation of the ADA.” Jackson, 826 F. Supp. 2d at 126. When pressed at oral

argument on the question of how her allegations in Count III differ from those in Count I, Reid-

Witt pointed repeatedly to accommodations she requested but which C.W. did not receive, such

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as permission to take photographs of the whiteboard during and after class to augment her notes.

Those sorts of allegations again “amount to garden variety IDEA violations” and are not

cognizable under the ADA or DCHRA. Holmes-Ramsey, 747 F. Supp. 2d at 39.

B. Policy-or-Practice Claim

Beneath Reid-Witt’s allegations of specific failures to accommodate C.W.’s disabilities,

however, lurks another claim that is different in kind. Reid-Witt argues, and the District

concedes, that C.W. is a D.C. resident and therefore entitled to a free, public education. See

Opp’n at 9 (citing 5A DCMR § 5001.1); Def.’s Reply in Supp. of its Partial Mot. to Dismiss Pl.’s

Am. Compl. (“Reply”) at 8–9, ECF No. 11. That fact, Reid-Witt contends, is enough to establish

that C.W. was a qualified individual under the Rehabilitation Act, ADA, and DCHRA and was

therefore entitled to special-education services at Banneker. Opp’n at 9.

The District gives two responses. It first argues that C.W.’s request for home instruction

was unreasonable as a matter of law because it sought “‘to expand the substantive scope of a

program or benefit,’ which is not required under the ADA or [the Rehabilitation Act.]” Reply at

12 (quoting Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1267 (D.C. Cir. 2008)).

Second, the District contends that, even with the many accommodations it granted her, C.W. still

failed to maintain the minimum grade-point average or accumulate enough hours of community

service to continue her enrollment at Banneker and so was unqualified to attend Banneker with

or without special-education services. Reply at 9.

The District’s first argument seems to respond directly to Reid-Witt’s allegations that

Banneker High School offers no special-education services whatsoever. According to the

Amended Complaint, Banneker “does not have any students with [Individual Education Plans]”

under the IDEA and “does not have any special education teachers . . . [or] administrators.” Am.

Compl. ¶¶ 172–74; 253–55. Based on that information, Reid-Witt alleges that the school

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repeatedly denied her requests for special education not because C.W. did not qualify for them,

as the school insisted, but because Banneker lacked the capability to provide them. Opp’n at 16–

17. She alleges that “DCPS has an unspoken policy and practice to exclude students from

Banneker who require [Individual Education Plans],” Am. Compl. ¶¶ 171, 252, instead diverting

them to “one of the District’s allegedly ‘easier typical’ high schools” where they may obtain less

prestigious and less rigorous individualized instruction, id. ¶¶ 170, 251. Relying on a “Dear

Colleague” Letter from the Department of Education, Reid-Witt argues that such a policy

violates the Rehabilitation Act and the ADA. See Opp’n at 17 (citing Asst. Sec’y Stephanie J.

Monroe’s Ltr. of Dec. 26, 2007, ECF No. 10-1).

Reid-Witt supports her allegations with both anecdotes and data. She first points to

hearing testimony from a Banneker teacher averring that “he had not taught a single student with

an [Individual Education Plan] at Banneker in the 13 years he had been [a] teacher [there].” Am.

Compl. ¶¶ 175, 256. Reid-Witt next cites a report from the District of Columbia Auditor that

noted stark disparities between selective and non-selective DCPS high schools in the number of

students with disabilities. See Opp’n at 17 (citing Office of the D.C. Auditor’s Report of May

24, 2019 (“Auditor’s Report”) at 2, ECF No. 10-2). According to the Report, the population at

Banneker looks very little like the student body at non-selective high schools. Auditor’s Report

at 2. At the far ends of the spectrum, 35% of the students at Anacostia High School have

disabilities; Banneker has zero. Id. The District’s other selective high schools have similar

figures. Id. The Report quotes hearing testimony stating that “[i]t is common knowledge . . .

that there are certain DCPS schools considered so ‘elite,’ they simply refuse to comply with

special education laws[,] and DCPS central leadership does nothing about it.’” Id. at 1.

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 Taken together, Reid-Witt essentially alleges that DCPS has a policy or practice of

excluding all disabled students from its elite high schools by failing to fund special-education

services at those schools. Reid-Witt therefore contends that Banneker’s determination that C.W.

was ineligible for those services was mere pretext; that C.W. could have maintained her grades

and performed community service if she had received necessary special-education services; and

that DCPS funneled C.W. to a less prestigious school to avoid having to spend money on special-

education programs at Banneker. Am. Compl. ¶¶ 165–75, 245–56.

The District’s arguments in response to that claim are unavailing. It first argues that the

statutes do not require schools to offer home instruction because such accommodations are

unreasonable as a matter of law. Mot. at 14–15. In any case, the District continues, the fact that

C.W. was entitled to a free, public education does not mean that she had a right to special

education at Banneker. Reply at 9. In the District’s words, it “has not, of course, barred C.W.

from attending every public school in the District on the basis of her disability”—just the

prestigious and academically rigorous schools. Id.

To be sure, “where the plaintiff[] seek[s] to expand the substantive scope of a

[government] program . . . , they likely seek a fundamental alteration to the existing program . . .

and have not been denied meaningful access.” Mot. at 14 (quoting Am. Council of the Blind, 525

F.3d at 1267). But American Council of the Blind dealt with summary judgment, see 525 F.3d at

1260, and the Court cannot make a factual determination about whether it is overly burdensome

for DCPS to offer special-education services at Banneker on a motion to dismiss. Moreover, at

this early stage, the Court cannot determine whether, as a matter of law, the District is required to

offer special education at every school or whether it may consolidate students with Individual

Education Plans at a few schools. The Parties have not meaningfully briefed that issue and, in

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light of the Department of Education’s letter and the D.C. Auditor’s Report that Plaintiff

attached, it is not clear that the District would prevail on the question.

Finally, the District contends that Reid-Witt has not successfully alleged that C.W. was

qualified for special education in the first place, so she cannot credibly allege that DCPS denied

her any benefit to which she was entitled whether or not such a policy exists. Reply at 8–9. In

the District’s view, even if C.W. were eligible for an Individual Education Plan, those additional

services would not have enabled her to perform the required number of hours of community

service to maintain her enrollment at Banneker, so she cannot claim that she was a “qualified

individual” under the Acts. Id. (citing Smith v. District of Columbia, No. 16-cv-1386, 2018 WL

4680208, at *9 (D.D.C. Sep. 28, 2018) (finding no discrimination where disabled student was

denied opportunity to take Advanced Placement courses because he did not meet the generally

applicable eligibility criteria); Vergara v. Wesleyan Acad., Inc., No. CV 17-1013, 2019 WL

4199911, at *12 (D.P.R. Sep. 4, 2019) (finding no discrimination where disabled student could

not achieve requirements for maintaining enrollment at selective private school)).

It may be the case that, even with an Individual Education Plan, C.W. would not have

been able to succeed at Banneker. As the District points out, Reid-Witt admits that C.W. did not

complete a private homeschooling curriculum during her senior year, so it is questionable

whether she would have done any better with home instruction provided by DCPS. See Mot. at

15 n.7. The Court cannot answer those questions on a motion to dismiss, however, especially

when the question of C.W.’s eligibility for special education remains a live issue under Count I.

The Hearing Officer answered that question in the negative, Am. Compl. ¶¶ 94–95, but the Court

has not yet upheld or overturned that decision. Smith and Vergara were both resolved on

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summary judgment with the benefit of fully developed evidentiary records, so their applicability

here is limited. See Smith, 2018 WL 4680208 at *1; Vergara, 2019 WL 4199911 at *1.

If the Court eventually finds that C.W. was not eligible under the IDEA, it is doubtful

that she will be able to sustain a claim that the District’s alleged policy-or-practice of denying

services at Banneker led to any discrimination against her because of her disability. At this early

stage, however, the Court must take the Amended Complaint’s allegations as true. Holy Land

Found. for Relief & Dev., 333 F.3d at 165. And assuming that C.W. was, in fact, eligible for an

Individual Education Plan, and in light of the supporting documentation Reid-Witt has provided,

it is plausible that the District (1) has a policy or practice “to exclude [such] students from

Banneker;” (2) following that policy, denied Reid-Witt’s requests for additional services under

the pretext that C.W. was ineligible for them, and (3) counseled her out of the school so as not to

have to fund special education at Banneker. Am. Compl. ¶¶ 170–75; 251–56.

That claim plausibly alleges bad faith or gross misjudgment on the part of DCPS. In

Douglass, the plaintiff alleged not only that DCPS “failed to fully implement” the student’s

Individual Education Plan but also that DCPS “discriminated against Plaintiff solely based upon

his disability because it provided only regular education students with the opportunity to earn

[graduation credits] and work toward a regular high school diploma, but did not provide the same

opportunity to special education students.” 605 F. Supp. 2d at 168 (internal quotation omitted).

The Court held that Douglass had stated a claim under the Rehabilitation Act because such a

policy facially discriminated against special-education students. 4 Id. Here, Reid-Witt has

alleged not only that DCPS improperly denied C.W.’s requests for special education because it

4
The Court dismissed the claims for failure to exhaust administrative remedies. 605 F. Supp. 2d
at 169. That result is irrelevant here, where the District does not argue failure to exhaust.

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found that she was ineligible, Am. Compl. ¶¶ 101–69; 176–250, but also that DCPS has a policy

or practice of denying such requests without seriously investigating whether a student is eligible

because Banneker lacks the capability to provide them, id. ¶¶ 170–75; 251–56. That sort of

exclusion—removing a student from an elite school because she needs special education while

telling her that she does not qualify for such services—may constitute discrimination solely by

reason of C.W.’s disability. Such allegations, if proven, might constitute bad faith or gross

mismanagement and therefore state a claim for disability discrimination under the Rehabilitation

Act, the ADA, and the DCHRA. Douglass, 605 F. Supp. 2d at 168.

IV. Conclusion

To the extent that Reid-Witt alleges that the District improperly evaluated C.W.’s

educational needs, provided insufficient accommodations, or was less responsive to Reid-Witt’s

communications than she would have liked, she may obtain relief through her IDEA claim.

Reid-Witt has not alleged additional facts that bring her claims within the scope of the

Rehabilitation Act, ADA, or DCHRA, and Counts II and III are dismissed in as far as they make

such allegations. The portions of Counts II and III alleging that the District has an illegal policy

or practice of excluding students requiring special education from its selective high schools,

however, state a claim for relief and may proceed. An Order will be issued contemporaneously

with this Memorandum Opinion.

DATE: September 3, 2020
CARL J. NICHOLS
United States District Judge

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