B.D. v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

B.D., a minor, by and through his
parents and next friends Anne and
Brantley Davis, et al.,

Plaintiffs, Civil Case No. 15-1139 (RJL)
V.

DISTRICT OF COLUMBIA,

New Nowe Nome Neue Nn “nme “ee “eee” “Nee Nee” “ee”

Defendant.
MEMORANDUM OPINION

(December “2, 2021) [Dkts. #44, #46]

Plaintiffs Anne and Brantley Davis, as parents and next friends of their son, B.D.
(collectively “plaintiffs” or “the Davises”), bring this action against the District of
Columbia (“defendant” or “the District’), alleging that the District of Columbia Public
Schools (“DCPS”) and the Office of the State Superintendent of Education (“OSSE”)—
the agencies through which the District complies with its educational obligations—
deprived B.D. ofhis rights under the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1400 et seg. Presently before the Court are Plaintiffs’ Motion for Summary
Judgment (“Pls.’ Mot.”) [Dkt. #44] and Defendant’s Cross Motion for Summary Judgment
(“Def.’s Mot.”) [Dkt. #46]. Upon consideration of the parties’ briefing, the applicable law,
and the entire record herein, the Court GRANTS IN PART and DENIES IN PART both

motions.
BACKGROUND

This case is one in a series involving the District’s provision of special education
and related services to B.D. under the IDEA. See Am. Compl. [Dkt. #6] {§ 9-15. The
parties’ long-running dispute over B.D.’s education is well documented in other opinions
of this Court and our Circuit Court. See B.D. v. District of Columbia, 75 F. Supp. 3d 225
(D.D.C. 2014); B.D. v. District of Columbia, 817 F.3d 792 (D.C. Cir. 2016); B.D. v. District
of Columbia, Case No. 15-cv-1139, 2020 WL 5763608 (D.D.C. Sept. 28, 2020); B.D. v.
District of Columbia, Case No. 13-cv-1223, 2020 WL 5763630 (D.D.C. Sept. 28, 2020).
In this Opinion, I will focus only on the facts relevant to the immediate dispute, which
primarily concerns the Davises’ parental rights to participate in B.D.’s educational
planning during the 2013-14 and 2014-15 school years.

A. Statutory Background

The IDEA guarantees children with disabilities a free appropriate public education
(“FAPE”) with services designed to meet each child’s unique needs. 20 U.S.C.
§ 1400(d)(1)(A). The “primary vehicle” for achieving the statute’s goals is the
individualized educational program (“IEP”)—a comprehensive and individualized
document that “sets out the child’s present educational performance, establishes annual and
short-term objectives for improvements in that performance, and describes the specially
designed instruction and services that will enable the child to meet those objectives.”
Honig v. Doe, 484 U.S. 305, 311 (1988); see also 20 U.S.C. § 1414(d)(1)(A)@). Once a
child is identified as disabled, the local education agency (“LEA”) responsible for the child
must develop an IEP for the student. 20 U.S.C. § 1414(d); 34 C.F.R. § 300.323(c). That

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IEP must then be reviewed at least annually by an IEP team including the student’s parents,
educators, specialists, LEA representatives, and the child, where appropriate. 20 U.S.C.
§ 1414(d)(1)(B), 1414(d)(4). In reviewing the IEP, the [EP team must determine whether
the IEP’s goals are being achieved and revise the IEP as necessary to address lack of
expected progress, the results of any evaluations, additional information about the child
provided by the parents, and the child’s anticipated needs. Jd. § 1414(d)(4)(A)(ii).

Parents who believe their child’s IDEA rights have been violated may file an
administrative due process complaint and are entitled to a due process hearing before an
impartial hearing officer. Jd. § 1415(f). It is up to the hearing officer in the first instance
to make a determination “on substantive grounds” whether the child has been denied a
FAPE. Jd. § 1415(f)(3)(E). Where parents base their complaint on “a procedural violation,
a hearing officer may find that a child did not receive a free appropriate public education
only if the procedural inadequacies (I) impeded the child’s right to a free appropriate public
education; (II) significantly impeded the parents’ opportunity to participate in the
decisionmaking process regarding the provision of a free appropriate public education to
the parents’ child; or (III) caused a deprivation of educational benefits.” Jd.
§ 1415((3)(E)Gi). Any party aggrieved by the outcome of the administrative hearing may
then file a civil action in district court. /d. § 1415(i)(2)(A).

B. Factual Background

B.D. is classified “as a student with multiple disabilities.” AR 28.! As such, DCPS

' Citations to the administrative record [Dkts. #36—-#42] are referred to using the notation “AR.”

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and OSSE recognize B.D. as eligible to receive special education and associated services
under the IDEA. AR 28. His conditions include an extreme form of attention deficit
hyperactivity disorder, developmental coordination disorder, anxiety disorder with
obsessive compulsive features, and a variety of other learning disorders. AR 28-30.

In October 2012, B.D.’s IEP team developed an IEP recommending that B.D. be
educated in a therapeutic residential school. AR 108-61, 175-76. OSSE accordingly
began to search for an appropriate location.? One such program in Massachusetts—the
Eagleton School (“Eagleton”)—accepted B.D., and this became his assigned location. AR
106-07. The Davises voiced numerous concerns regarding Eagleton’s ability to meet
B.D.’s unique needs, and eventually refused to accept this placement. AR 162-69, 181.

Several contentious months followed in which the District and the Davises sought
to find and agree on an appropriate placement for B.D. Despite contacting numerous
residential schools, these efforts were unsuccessful, and litigation eventually ensued. AR
189-251. In June 2013, against a backdrop of ongoing litigation, the parties again sought
to convene B.D.’s IEP team to update his IEP and discuss finding an appropriate placement.
AR 231-308. Around this time, OSSE again referred B.D. to Eagleton, informing the
Davises in the end of June that he was again being considered for admission there. AR
236-47, 327-33.

1. The July 16, 2013 Meeting

The IEP team initially scheduled an IEP meeting for June 21, 2013. AR 310-16.

2 In the process of searching for an appropriate residential facility, OSSE sought, and obtained, consent to
disclose B.D.’s records to prospective schools. See Pls.’ Statement of Facts with References to the AR
(“Pis.’ SMF”) [Dkt. 44-1] at ¥ 22.
Two days prior to the meeting, however, DCPS postponed because B.D.’s case manager
had a “personal” matter to attend to. AR 352. The parties agreed to reschedule the meeting
for July 16. On July 8, however, the Davises alerted DCPS that B.D. had been accepted
into the residential program at Rogers Memorial Hospital (“Rogers Memorial”) in
Wisconsin and that they intended to enter him in that program as soon as space became
available. AR 361-65. The Davises stated that “[i]f DCPS expects Rogers Memorial to
implement any IEP goals for [B.D.], then the process of updating and revising his IEP
should continue now.” AR 365. Two days later, DCPS responded with a letter from
counsel explaining that DCPS could not place B.D. at Rogers Memorial because that
facility had not received the requisite certifications under local regulations. AR 372.
DCPS’s letter did not specifically address the July 16 IEP meeting, but stated that “DCPS
is not required to, nor will it propose a revised IEP while [B.D.] is unilaterally placed by
the Davises at Rogers Memorial.” AR 372. The letter concluded by asking the Davises to
keep DCPS apprised of B.D.’s progress and stating that DCPS “looks forward to hearing
about this progress and [B.D.’s] readiness to transition back to DCPS.” AR 372.

On July 15, 2016, under the assumption the July 16 meeting was still going forward,
DCPS circulated a dial-in number and location for the meeting. See AR 388. Caught off
guard, the Davises requested to reschedule, explaining that while they “would very much
like to attend an IEP meeting,” they had assumed the meeting was cancelled in light of
DCPS’s letter stating that DCPS would not move forward with revising B.D.’s IEP in light
of his placement at Rogers Memorial and DCPS’s failure to provide an agenda, a list of

participants, and other information. AR 384. The Davises explained that due to their

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assumption that the meeting had been cancelled, they had not made the necessary childcare
arrangements, preventing them from attending on short notice. AR 384. The following
day, plaintiffs’ counsel emailed the school reiterating the Davises’ inability to attend and
again requesting DCPS reschedule the meeting. AR 397-98.

DCPS nevertheless held the meeting on July 16, 2013 without the Davises present.
The meeting minutes state that the need to “remain in compliance [with the requirement
that IEPs be updated at least annually]” was the reason for moving forward in the Davises’
absence. AR 394, 432. At the meeting, those present reviewed, among other things, B.D.’s
progress, his present “levels, needs, baselines, and goals,” and his least restrictive
environment. AR 393. The notes repeatedly state that updates to B.D.’s goals were
impossible to make because the IEP team lacked current information regarding B.D.’s
behaviors and progress. For the social emotional goals category, the notes state that “[t]o
the best of the team’s knowledge, [B.D.] still presents with maladaptive behaviors.” AR
395. For the speech and language therapy section, the notes explain that “no progress notes
or updated data” were available. AR 395. For the occupational therapy section, the notes
state that “[n]o progress reports” were available and as a result the team “can’t make any
modifications to the IEP.” AR 395. In recognition of the Davises’ absence, the meeting
notes state that “[a] meeting will re-convene if requested at a mutually agreeable time and
place.” AR 394.

2. The October 1, 2013 Meeting
Three days after the July 16 meeting, OSSE issued a notice of location assignment

placing B.D. at Eagleton. AR 478-79. The Davises requested a meeting with B.D.’s IEP

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team, but in the following weeks efforts were derailed by B.D.’s hospitalization in two
different hospitals.2 AR 721-745. On September 18, 2013, DCPS emailed plaintiffs,
through counsel, requesting to convene an JEP meeting with the goal of “discuss[ing] the
new [hospital] reports and, based on the information they provide, mak[ing]
recommendations on educational programming.” AR 746. Shortly thereafter, DCPS sent
the Davises a Prior Written Notice informing them that DCPS intended to modify B.D.’s
educational placement so that he would begin receiving services at Eagleton. AR 781.

The Davises and DPCS mutually agreed to an IEP meeting on October 1, 2013 “[t]o
review new information and social emotional data from the student’s recent
hospitalizations and home-bound instruction to amend the IEP; discuss placement; and
identify a site location.” AR 796. The agenda for that meeting included “[rleview of new
data and recommends [sic] for updated social emotional goals,” “[r]eview of recommended
placement,” and “[o]pportunity to discuss additional concerns or questions.” AR 795. It
did not include a plan to review goals outside of the “social emotional” category.

During the meeting, DCPS, the Davises, plaintiffs’ counsel, B.D.’s psychologist,
and other IEP team members discussed B.D.’s recent hospitalizations and a recent
behavioral incident report. AR 806-44. The team reviewed B.D.’s psychiatric health and

social-emotional goals, as well as his proposed placement at Eagleton. AR 806-44. The

3 During this time, plaintiffs expressed a reluctance to share B.D.’s hospital and medical records with the
IEP team out of a fear that they would be inappropriately disseminated to others without the Davises’
consent. AR 703-08. This reflects the contentious nature of the parties’ relationship, especially as it relates
to the sharing of B.D.’s records. At times, plaintiffs have complained both that the District has sent too
many and too few records to prospective schools. See Pls.’ SMF J 94 (asserting DCPS shared sensitive
records without consent); AR 96 (asserting OSSE shared only a “small percentage” of the documents in
B.D.’s file and expressing a concern that the school needs to “read the complete file”).

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Davises expressed concerns about B.D.’s ability to learn and progress in a residential
treatment center given his auditory triggers and their experiences with recent inpatient
hospitalizations. AR 806-44.

In response, DCPS noted that it had considered the auditory triggers in the IEP and
that it was confident that Eagleton was capable of addressing them. AR 806-44. An
Eagleton representative attending the meeting reiterated that Eagleton had the “manpower”
to provide B.D. the services he needed and that the school would develop a plan to manage
the auditory triggers, likely with daily therapy. AR 806-44. At the end of the meeting,
DCPS reiterated its recommendation that B.D. be placed at Eagleton and set a proposed
date for the placement. AR 806-44. The Davises and plaintiffs’ counsel reiterated their
objections and rejected the proposal. AR 806-44. Nonetheless, an Amended IEP dated
October 4, 2013 stated that DCPS amended B.D.’s present performance levels and annual
goals “in a single area of concern”—the social-emotional—-behavioral area. AR 849. A
few days later, DCPS sent B.D.’s parents a Prior Written Notice identifying B.D.’s
placement as Eagleton and noting that the Davises had rejected that placement. AR 880—
81.

3. The July 29, 2014 Meeting

Ata standstill and locked in litigation, B.D.’s IEP team did not meet again until July
29, 2014 when it convened for its mandatory annual review. AR 961. DCPS had prepared
a draft IEP, which it circulated to some members of the IEP team but did not share with
the Davises prior to the meeting. AR 921. During the meeting, the draft IEP was projected

on a screen visible to all team members. AR 921. The Davises also received a paper copy.

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AR 922.

During the IEP meeting, the Davises and counsel informed DCPS that B.D.’s
psychiatrist, Dr. Laura Robb, had seen him recently and would be sending a letter to DCPS
shortly with her impressions and recommendations. AR 930. Plaintiffs’ counsel
summarized the anticipated contents of the letter, and DCPS responded that it would
include that information in the IEP. AR at 930-31. After the meeting, in September 2014,
plaintiffs’ counsel sent DCPS a list of requested corrections to the IEP meeting notes, as
well as comments on that meeting. AR 1006-14. She did not request to reconvene at that
time. AR 1006-14. In December 2014, the Davises, through counsel, requested a new IEP
meeting to consider the letter from B.D.’s psychiatrist, as well as the “insights” of care
providers working with B.D. AR 1025-28. DCPS declined to reconvene at that time,
citing the need to await the results of upcoming evaluations prior to meeting. AR 1044.

C. Procedural History

On January 30, 2015, plaintiffs filed an administrative due process complaint
alleging DCPS violated the IDEA by (1) holding an IEP meeting on July 16, 2013 without
the Davises; (2) failing to review previously developed portions of B.D.’s IEP at the
October 1, 2013 meeting; (3) predetermining B.D.’s placement at Eagleton before the
October 1, 2013 and July 29, 2014 meetings; (4) preventing B.D. from remaining in his
current placement by repeatedly attempting to send him to Eagleton; (5) failing to provide
certain information, including a proposed IEP, to the Davises in advance of the July 29,
2014 meeting; (6) limiting discussion at the July 29, 2014 IEP meeting to selected sections

of a previously drafted IEP; and (7) repeatedly disclosing B.D.’s confidential records to

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Eagleton without the Davises’ consent. AR 1050-57. A hearing was held in March 2015
before an independent hearing officer (“IHO”). The IHO’s hearing on decision (“HOD”)
issued on April 17,2015. AR 6. The IHO sided with DCPS on the first six issues, holding
DCPS did not deny B.D. a FAPE due to the alleged conduct. See AR 15-21. On the final
issue of whether DCPS and OSSE had violated the IDEA by disclosing B.D.’s confidential
information, the IHO concluded she lacked jurisdiction to hear the claim. AR 19-21.
Plaintiffs appealed the decision by bringing suit in this Court. See Compl. [Dkt.
#1]. In their Amended Complaint, plaintiffs (1) sought reversal of the IHO’s decision
(Count 1); (2) sought a declaratory judgment that District’s policies and practices for
placing students in nonpublic schools violate the IDEA (Count 2); (3) brought a claim
under 42 U.S.C. § 1983 based on the District’s conduct (Count 3); (4) sought a declaratory
judgment that OSSE’s contracts with special education hearing officers rendered them
OSSE employees in violation of the IDEA’s independence requirements (Count 4); and (5)
brought a 42 U.S.C. § 1983 claim based on the same lack-of-independence allegations
(Count 5). Am. Compl. ff] 63-81. Thereafter, defendant moved to dismiss Counts 1, 2, 3,
and 5. See Def.’s Mot. to Dismiss Counts 1, 2, 3, and 5 [Dkt. #9]. On September 28, 2020,
following a stay in proceedings entered at the parties’ request, I granted defendant’s motion
with respect to Counts 2, 3, and 5, leaving Counts | and 4 as the sole remaining Counts.
See Mem. Opinion [Dkt. #31]. Plaintiffs then moved for summary judgment on both
Counts. See Pls.” Mot. Defendant, in turn, cross-moved for summary judgment on both

remaining Counts. See Def.’s Mot. These motions are fully briefed and resolved herein.

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STANDARD OF REVIEW

Under the normal operation of Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is warranted where “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In reviewing a hearing officer’s
decision under the IDEA, the Court “(i) shall receive the records of the administrative
proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its
decision on the preponderance of the evidence, shall grant such relief as [it] determines is
appropriate.” 20 U.S.C. § 1415G)(2)(C). Where, as here, neither party requests the Court
hear additional evidence, cross motions for summary judgment serve as the “vehicle for
asking the judge to decide the case on the basis of the administrative record.” Heather S.
v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997); see also Phillips v. District of Columbia,
736 F. Supp. 2d 240, 246 (D.D.C. 2010); Parker v. Friendship Edison Pub. Charter Sch.,
577 F. Supp. 2d 68, 72 (D.D.C. 2008).

Plaintiff, as the party challenging the hearing officer’s determination, bears the
burden of persuading the Court, by a preponderance of the evidence, that the hearing officer
erred. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005). Courts may not
substitute “their own notions of sound educational policy for those of the school authorities
which they review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176 (1982). But less deference is owed in reviewing a hearing officer’s decision under the
IDEA than in other administrative contexts. See Reid, 401 F.3d at 521 (“[JJudicial review
under IDEA is more rigorous than in typical agency cases.”); Kerkam v. Superintendent,

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D.C. Pub. Schs., 931 F.2d 84, 87 (D.C. Cir. 1991) (a hearing officer’s decision “without
reasoned and specific findings deserves little deference”). Where a court overturns a
hearing officer’s decision, it must endeavor to carefully respond to the hearing officer’s
findings on each material issue and explain its basis for disagreeing with the hearing
officer’s conclusion. Eley v. District of Columbia, Case No. 11-cv-309, 2012 WL 3656471
(D.D.C. Aug. 24, 2012) (“[A] court upsetting the hearing officer’s decision must explain
its basis for doing so.”).

ANALYSIS

Plaintiffs seek summary judgment on Counts 1 and 4 of their Amended Complaint.
With respect to Count 1, plaintiffs contend that, contrary to the hearing officer’s
conclusion, the District significantly impeded the Davises’ right to participate in B.D.’s
educational programing—and thereby denied B.D. a FAPE—by (1) holding the July 16,
2013 IEP meeting without the Davises present; (2) failing to cure this participatory
deprivation at the October 1, 2013 meeting; (3) limiting the discussion at the July 29, 2014
IEP meeting to a draft IEP that DCPS did not share with the Davises prior to the meeting;
(4) refusing to consider information not provided by the Davises in advance of the October
1, 2013 and July 29, 2014 meetings; and (5) repeatedly disclosing B.D.’s confidential
records to private schools without the Davises’ consent. See Pls.’ Mem. of Points and
Auths. in Support of Their Mot. for Summ. J. (“Pls.” Mem.”) [Dkt. #44-2] at 4-26.

With respect to Count 4, plaintiffs argue that the hearing officer was not independent
as required by the IDEA. Pls.” Mem. at 26 (citing 20 U.S.C. § 1415(f)(3)(A)(@)() and (1).
Plaintiffs assert that although officially denominated as “independent contractors,” the

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terms of IHOs’ contracts with OSSE render them employees, thereby depriving them of
the objectivity and independence required by the IDEA. /d. at 26-31. Defendant responds
by arguing that plaintiffs’ claims are moot, unjustified by the administrative record, or
outside of this Court’s jurisdiction due to plaintiffs’ failure to exhaust their administrative
remedies. See Def.’s Mot. at 16-33.

For the reasons stated below, I agree with plaintiffs that B.D. was denied a FAPE
between July 16, 2013 and July 29, 2014 due to the District’s significant impediment of
the Davises’ participation in their son’s educational planning during this timeframe.
Accordingly, I grant plaintiffs partial summary judgment on Count 1. With respect to the
remainder of Count 1, however, I grant the District summary judgment as plaintiffs have
failed to show that their parental participation was significantly impeded beyond July 29,
2014. I also grant the District summary judgment on Count 4 because plaintiffs failed to
exhaust their administrative remedies on this claim.

A. Mootness

As a threshold argument, defendant contends plaintiffs’ claims are moot. Def.’s
Mot. at 16. A claim is moot “only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165, 172 (2013). “The
initial ‘heavy burden’ of establishing mootness lies with the party asserting a case is moot.”
Honeywell Int’l Inc. v. Nuclear Regul. Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010)
(quoting Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 459 (D.C. Cir. 1998)).
Where a party retains a “concrete interest” in the outcome, the case is not moot and the

court retains jurisdiction to hear the dispute. See Olu-Cole v. E.L. Haynes Pub. Charter

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Sch., 930 F.3d 519, 530 (D.C. Cir. 2019). In the IDEA context, where a party seeks
compensatory education to make up for past deficiencies in a student’s educational
program, the case is not moot merely due to the provision of an appropriate education at a
later time. See id. (citing Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C. Cir.
2015)).

With respect to Count 1, defendant asserts that because B.D. received numerous IEPs
and placements that were satisfactory to plaintiffs from 2016 onward, the alleged
deficiencies in 2013 and 2014 no longer present a live controversy. Def.’s Mot. at 17-18.
This argument runs headlong into our Circuit Court’s precedent, which has repeatedly held
that where, as here, parents seek compensatory education for alleged deficiencies in prior
IEPs, the fact that the parties subsequently reach agreement on educational programming
on a go-forward basis does not moot the claim. See Lesesne v. District of Columbia, 447
F.3d 828, 833 (D.C. Cir. 2006); Boose, 786 F.3d at 1059; Olu-Cole, 930 F.3d at 530-31.
Defendant relies on J.T. v. District of Columbia, but the comparison is inapposite. See
Def.’s Mot. at 19 (citing 983 F.3d 516 (D.C. Cir. 2016)). Unlike in J. 7., where the parents
were not seeking compensatory education, 983 F.3d at 521, here plaintiffs have plainly
sought such relief as a result of the alleged deficiencies in the 2013 and 2014 IEPs. See
Am. Compl. at 23. Accordingly, Count 1] remains a live controversy despite the intervening

years and subsequent agreeable placements.*

* On reply, defendant appears to concede the point, stating that “Boose supports Plaintiffs’ contention that
this case in its entirety is not moot.” Def.’s Reply at 4. The concession is well taken. While defendant is
correct that certain portions of the relief sought may well have been rendered obsolete by intervening events,
this does not render the claim moot. See Calderon v. Moore, 518 U.S. 149, 150 (1996) (holding “a partial
remedy” is sufficient to prevent a claim from being dismissed as moot).

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Defendant also raises a related case in this district—B.D. v. District of Columbia, Case
No. 13-cv-1223—arguing that plaintiffs “improperly seek to obtain in this action the relief
that they did not receive in the remand hearing” there. Def.’s Reply [Dkt. #51] at 3. In
that related proceeding, B.D. and his parents challenged, among other things, an
administrative hearing officer’s May 10, 2013 stay-put determination regarding what was
properly included in B.D.’s then-current educational placement. See B.D., 2020 WL
5763630, at *1. I remanded to the hearing officer for reconsideration of whether certain
related services were included in B.D.’s then-current education as of May 10, 2013. Jd. at
*6, *10. While the FAPE denial period in that case overlaps with the alleged FAPE denial
period here, plaintiffs’ claims there center on separate alleged harms from the ones raised
here. See Case No. 13-cv-1223, [Dkt. #83-1] at Ex. 5 (hearing officer on remand limiting
his decision to what would be an appropriate compensatory education award for harm
associated with B.D. not receiving related services as part of his May 10, 2013 stay-put
decision). Accordingly, while not irrelevant to the instant proceeding, Case No. 13-cv-
1223 fails to moot the present claims.

With respect to Count 4, defendant asserts plaintiffs’ claim is moot because “events
have so transpired” that a decision in plaintiffs’ favor “will not affect [p]laintiffs’ current
situation.” Def.’s Mot. at 18-19. Notso. In Count 4, plaintiffs challenge the independence
of the hearing officer under the IDEA. Assuming, as I must for purposes of assessing
whether the claim is moot, that the claim is properly before the court and plaintiffs are
correct on the merits, it is not difficult to see how the Court could grant “effectual relief.”

See Church of Scientology v. United States, 506 U.S. 9, 12 (1992). Not only could I

15
invalidate the hearing officer’s decision, but I could require changes to ensure
independence in future administrative proceedings in the case. Accordingly, Count 4
remains a live controversy as well.

B. Free Appropriate Public Education (Count 1)

Turing to the merits, plaintiffs seek summary judgment on Count I on the basis
that B.D. was denied a FAPE during the 2013—14 and 2014—15 school years as a result of
the District’s violation of the Davises’ participatory rights under the IDEA. See Pls.” Mem.
at 4-26. As the Supreme Court has repeatedly emphasized, the central importance of
parental participation in the creation of educational programs under the IDEA cannot be
gainsaid. See Honig, 484 U.S. at 311 (“Congress repeatedly emphasized throughout the
[IDEA] the importance and indeed the necessity of parental participation in both the
development of the IEP and any subsequent assessments of its effectiveness ....”); Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist., 458 U.S. at 205-06; Lofton v. District of
Columbia, 7 F. Supp. 3d 117, 123 n.6 (D.D.C. 2013). However, not every minor procedural
error on behalf of a school board results in the denial of a FAPE. See Lesesne, 447 F.3d at
834 (collecting cases). Instead, where the complaint centers on a deprivation of the parental
right to participate, plaintiffs must show that the procedural violations “significantly
impeded” that right in order to show a FAPE denial. 20 U.S.C. § 1415(f)(3)(E)(Gi).
Plaintiffs cite numerous incidents that allegedly rise to this level. See Pls.” Mem. at 4-26.
I address these in turn.

1. July 16, 2013 Meeting

Plaintiffs first argue that when DCPS moved forward with the July 16 meeting in

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the Davises’ absence, it violated their procedural rights to participate, resulting in the denial
of a FAPE. I agree. In order to ensure meaningful participation, LEAs “must take steps to
ensure that one or both of the parents of a child with a disability are present at each IEP
Team meeting.” 34 C.F.R. § 300.322(a). This includes “[s]cheduling the meeting at a
mutually agreed on time and place.” /d. § 300.322(a)(2). When parents cannot attend in
person, they “may agree to use alternative means of meeting participation, such as video
conferences and conference calls.” Jd. § 300.328. But DCPS may only hold a meeting
without a parent if it is “unable to convince the parents that they should attend.” Jd.
§ 300.322(d).

Here the record bears out that DCPS failed to comply with these requirements. In
the days before the meeting, the Davises’ apparent decision to unilaterally place B.D. at
Rogers Memorial and DCPS’s response undoubtedly created confusion regarding whether
the July 16 meeting was moving forward. This came to a head on the day before the
meeting when DCPS circulated a dial-in number and the Davises realized that DCPS still
intended to hold the meeting. Immediately upon realizing the parties were not on the same
page, however, Ms. Davis reached out to the hearing officer stating that she “would very
much like to attend” and attempted to reschedule the meeting at a mutually convenient
time. AR 399-400. Under the circumstances, nothing more was required because, at that
point, it was clear that the meeting was no longer “at a mutually agreed on time and place”
and DCPS had not been “unable to convince the parents that they should attend.” 34 C.F.R.
§ 300.322(a)(2), (d).

The hearing officer’s conclusion to the contrary finds no basis in the facts or law.

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See AR 16 (finding that DCPS “methodically complied with its statutory obligations”).
First, the hearing officer’s conclusion rests on the flawed assumption that once a meeting
is scheduled “at a mutually agreed on time and place,” 34 C.F.R. § 300.322(a)(2), the
District is free to ignore conflicts that may arise. The plain meaning of the regulatory
language, however, requires more from school boards, including responding to
commonplace requests to reschedule. See Doug C. v. Hawaii Dep’t of Educ., 720 F.3d
1038, 1044 (9th Cir. 2013); ZN. v. District of Columbia, 677 F. Supp. 2d 314, 321-22
(D.D.C. 2010). Where, as here, a conflict arises prior to the meeting, it is timely
communicated to the other side, and an offer is made to reschedule, the previously
scheduled meeting is no longer in conformity with the regulation because it is no longer
“at a mutually agreed on time and place.” 34 C.F.R. § 300.322(a)(2); J.N., 677 F. Supp.
2d at 321-22 (holding DCPS violated parental right to participate where it held an IEP
meeting without student’s parents despite requests in the three days immediately prior to
the meeting to reschedule).

Second, the hearing officer’s conclusion ignores the regulatory prohibition on
holding a hearing unless DCPS is unable to convince parents “that they should attend.” 34
C.F.R. § 300.322(d) (emphasis added). When Ms. Davis reached out on the day before the
meeting saying she would “very much like to attend,” she had plainly communicated to
DCPS that she believed she should attend the meeting. See Doug C., 720 F.3d at 1044
(school board denied FAPE to student by holding IEP meeting without parent despite
parent’s “vigorous object[ion]” and offer to reschedule); J.N., 677 F. Supp. 2d at 321-22.

Ignoring the plain meaning of the regulatory language, the hearing officer engaged

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in an analysis of whether plaintiffs’ confusion regarding the meeting was reasonable. AR
16. Neither the IDEA nor its implementing regulations, however, base the District’s
obligations on the reasonableness of a parent’s scheduling error. Doug C., 720 F.3d at
1044-45. To the contrary, the regulatory scheme puts a clear thumb on the scales—
parental participation is required up until the point the local educational agency can no
longer convince the parents they “should” attend an IEP meeting.» See 34 C.F.R.
§ 300.322(d). Accordingly, the District may be required to accommodate parents even
where they are difficult, contentious, or comparatively more at fault in a scheduling mix-
up.° Doug C., 720 F.3d at 1044-45. Because Ms. Davis plainly came within the reach of
§ 300.322(d), the hearing officer erred in finding that no violation occurred by holding the
July 13 meeting in her absence. Due to the primary importance of parental participation,
the complete exclusion of the Davises from the IEP meeting rises to the level of a
substantive FAPE denial because it “significantly impeded” their ability to participate in
B.D.’s educational planning. 20 U.S.C. § 1415(f(3)(E)Gi)(ID; Doug C., 720 F.3d at 1044—
45; Hill v. District of Columbia, Case No. 14-cv-1893, 2016 WL 4506972, at *8, 25

(D.D.C. Aug. 26, 2016); Eley, 2012 WL 3656471, at *9.

> Defendant, relying on A.L. v. Jackson County School Board, argues it should be excused from excluding
plaintiffs from the IEP meeting because plaintiffs failed to explain why they could not participate by phone.
Def.’s Mot. at 26 (citing Case No: 5:13-cv-85-RS-GRJ, 2014 WL 5500631, at *7 (N.D. Fla. Oct. 30, 2014)).
This argument, however, is doubly flawed. First, under 34 C.F.R. § 300.328, parents “may agree to use
alternative means of meeting participation.” The regulation does not empower the District to require
parents to participate by phone when they cannot attend in person. Second, Jackson is entirely distinct.
There, the district court lamented how the parent had not provided any explanation for her “repeated and
unreasonable history of failure to attend the IEP meeting[,] ... constant requests for rescheduling ..., or her
failure to participate by phone.” 2014 WL 5500631, at *7. Here, no such history of recalcitrance exists.

6 There will, of course, be cases where parental conduct is so egregious that the District’s obligations will
be satisfied without an explicit statement from the parents that they refuse to attend. See A.L. v. Jackson
Cnty. Sch. Bd., 635 F. App’x 774, 779-81 (11th Cir. 2015).

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2. October 1, 2013 Meeting

Plaintiffs next argue the October 1 meeting failed to cure this FAPE denial because
it was insufficient in scope to replace the July 13 annual review and because DCPS
“predetermined” Eagleton as the appropriate placement for B.D. prior to the meeting. Pls.’
Mem. at 15-20. I agree with plaintiffs on the former point, but disagree on the latter.

Where an LEA has caused a FAPE denial due to improperly excluding parents, it
bears a heavy burden in remediating this procedural violation. See Doug C., 720 F.3d at
1047; Gaston v. District of Columbia, Case No. 18-cv-1703, 2019 WL 3557246, at *7
(D.D.C. Aug. 5, 2019). In a single paragraph, the hearing officer concluded that because
plaintiffs were able to participate and because “the relevant portions” of the IEP were
reviewed during the October 1 meeting, there had been no denial of a FAPE as a result of
this meeting. AR 16-17. But this determination was premised on the hearing officer’s
prior erroneous conclusion that no violation occurred with respect to the July 16 meeting.
AR 16. What it fails to incorporate is that the Davises were entitled to participate in the
full creation of B.D.’s IEP for the 2013-14 school year. See Doug C., 720 F.3d at 1047.
This requires more than some after-the-fact participation, which is all DCPS offered here
through the October 1 meeting. See id. (holding “after-the-fact parental involvement” is
insufficient to cure a FAPE denial caused by excluding a parent from an IEP meeting
because “the IDEA contemplates parental involvement in the creation process” (cleaned
up)); Gaston, 2019 WL 3557246, at *7 (“[A] subsequent adequate course of action cannot
sanitize a prior inadequate decision.”).

As the record shows, critical components of an IEP team’s annual review were

20
omitted or overlooked during the October 1 meeting. IEP teams are required to, among
other things, assess the student’s progress toward his annual goals, review the child’s
anticipated needs, and receive information from the student’s parents. 20 U.S.C.
§ 1414(d)(4)(A)(ii).. The limited focus of the October 1 meeting failed to do so. Despite
not being able to update Braeden’s goals in numerous categories at the July 16 meeting due
to lack of relevant data, see AR 395-96, the October 1 meeting did not review or update
Braeden’s IEP in many of these areas. AR 806-44. Nor did it seek information from the
Davises on his progress in these areas. AR 806-44. Instead, the October meeting focused
almost exclusively on the District’s preferred placement at Eagleton, a recent incident that
had occurred with a home instructor, and updating Braeden’s goals in the social-emotional
category. AR 806-44. This limited review was insufficient to cure the prior deficiencies,
resulting in a continued FAPE denial through the next time the IEP team convened in July
29, 2014. See Doug C., 720 F.3d at 1047; Gaston, 2019 WL 3557246, at *7.

Plaintiffs’ argument that DCPS predetermined Eagleton as B.D.’s location,
however, does not fare as well. While parents’ participation is crucial in the determination
of an appropriate educational placement for a student, the IDEA does not “explicitly
require parental participation in site selection.” James v. District of Columbia, 949 F. Supp.
2d 134, 138 (D.D.C. 2013); Z.B. v. District of Columbia, 382 F. Supp. 3d 32, 47 (D.D.C.
2019). So long as the location of services is based on and capable of implementing the
student’s IEP, local educational agencies generally have discretion in selecting the
appropriate site. See 34 C.F.R. § 300.116(b)(2); O.O. v. District of Columbia, 573 F. Supp.

2d 41, 55 (D.D.C. 2008).

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Plaintiffs here cite a litany of concerns that they have regarding the adequacy of the
Eagleton placement, see Pls.’ Mem. at 16—20, but they do not present any evidence that the
hearing officer erred in finding that Braeden’s IEP team carefully considered Braeden’s
needs and plaintiffs’ concerns. AR 17. Nor could they, as the record fully supports the
hearing officer’s conclusion on this issue. AR 806-44. Ultimately, plaintiffs express a
disagreement with the IEP team’s conclusion that Eagleton was an appropriate placement,
see Pls.’ Mem. at 16-20, but this is insufficient to show a denial of a FAPE on this issue.’
Hawkins v. District of Columbia, 692 F. Supp. 2d 81, 84 (D.D.C. 2010) (“[T]he right
conferred by the IDEA on parents to participate in the formulation of their child’s IEP does
not constitute a veto power over the JEP team’s decisions.” (quoting A.W. v. Fairfax Cnty.
Sch, Bd., 372 F.3d 674, 683 n.10 (4th Cir. 2004))).

3. July 29, 2014 Meeting

Unlike the 2013-14 school year, the record adequately supports the hearing officer’s
conclusion that the District did not significantly impede the Davises’ right to participate in
planning B.D.’s education for the 2014—15 school year. AR 18-19. The Davises focus on
two alleged deficiencies. First, they argue DCPS violated plaintiffs’ right to meaningfully
participate by failing to send the draft IEP to the Davises in advance of the July 29 meeting
and unduly limiting the discussion in the meeting to certain topics. Pls.” Mem. at 20-22.

Second, they assert DCPS violated their right to participate by refusing to reconvene or

7 Yt also cannot be said that the deficiencies in the July 16 meeting somehow led to DCPS predetermining
Eagleton was an appropriate placement based on a deficient IEP. See Pls.” Mem. at 16. DCPS’s
consideration of Eagleton dates back to October 2012, at which time the IEP team concluded B.D. should
be placed in a residential facility. That IEP was independently challenged by plaintiffs, but both a separate
independent hearing officer and this Court found it complied with the IDEA.

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otherwise consider information the Davises provided after the meeting, principally a letter
from B.D.’s psychologist, Dr. Laura Robb. Jd. at 22-25.

With respect to the first charge against DCPS, I agree with the hearing officer’s
conclusion that “[t]he evidence does not support a finding that [the Davises were] not able
to participate in the July 29” meeting or that the discussion was unduly limited. AR 19.
The record reveals that the IEP team reviewed each area of concern for B.D. and revised
several of his goals. AR at 918-60. As the hearing officer found, plaintiffs “gave feedback
throughout.” AR 19; see also AR 918-60. Indeed, the IEP made several adjustments
specifically in response to plaintiffs’ requests, including adding assistive technology to
assist B.D. and agreeing to conduct comprehensive evaluations and assessments. AR at
993-95.

Plaintiffs focus on DCPS’s failure to provide a draft IEP in advance of the meeting.
Pls.” Mem. at 22. But, as plaintiffs concede, at the time of the meeting, DCPS was not
under any specific statutory or regulatory obligation to do so. Jd. At 21-22. In other
contexts, the IDEA identifies with specificity what information must be provided to parents.
See, e.g., 34 C.F.R. § 300.322(b) (identifying what must be included in a notice to parents).
Accordingly, where, as here, no statutory or regulatory requirement obligated DCPS to
provide an advance copy of the draft IEP, I find the failure to do so does not constitute a
procedural violation, must less one that significantly impeded the plaintiffs’ ability to

participate.’ Accordingly, the District is entitled to summary judgment on this issue.

8 The cases plaintiffs cite in support of their position on this point are unhelpful. In each, the court
considered the school board’s failure to comply with an explicit procedural requirement. MM v. Lafayette
Sch, Dist., 767 F.3d 842 (9th Cir. 2014); Amanda J. v. Clark Cnty Sch. Dist., 267 F.3d 877 (9th Cir. 2001).

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With respect to the failure to consider Dr. Robb’s letter, I cannot consider this
argument because plaintiffs have failed to exhaust their administrative remedies on this
issue. It is well established that “an allegation not presented to the independent hearing
officer at a due process hearing may not be raised for the first time in this Court.”
Holdzclaw v. District of Columbia, 524 F. Supp. 2d 43, 47 (D.D.C. 2007); see also Cox v.
Jenkins, 787 F.2d 414, 419-20 (D.C. Cir. 1989). The administrative complaint in this case
was well drafted with the assistance of counsel. AR 1050-57. In it, plaintiffs raise
numerous issues in detail, including seven separately identified deficiencies with the
District’s provision of educational services. AR 1050-57. Despite this detail, however,
and the form’s admonishment that “[a]ny issue not identified in this complaint cannot be
raised at the due process hearing,” plaintiffs failed to include the failure-to-consider
argument they now seek to advance. AR 1053. Accordingly, this Court lacks jurisdiction
on this issue and must grant summary judgment to the District.

4. Disclosing Confidential Records

Finally, plaintiffs argue that DCPS violated B.D.’s confidentiality rights under the
IDEA by sending his educational records to private schools without the Davises’ consent.
Pls.” Mem. at 25. The hearing officer concluded that this issue fell outside of her
jurisdiction in light of the fact that claims related to the privacy of a student’s records must
be brough through an alternative administrative process under the Family Educational
Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232(g). AR 19-21. To avoid the
implication of this ruling, plaintiffs frame their argument in this Court as a procedural

violation affecting parental participatory rights. Pls.” Mem. at 26. They contend that had

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the District let the Davises play a larger role in selecting which records would be sent to
prospective schools, it would have enabled plaintiffs to better participate in the process of
assessing a location’s ability to implement B.D.’s JEP, and therefore the failure to
adequately involve the parents in this process significantly impeded their ability to
participate in planning B.D.’s educational placement, resulting in a FAPE denial. Jd.

Plaintiffs offer no precedential support for this theory, and I find it is unsupported
by the record here. Although plaintiffs repeatedly expressed discontent with the District’s
decisions regarding disclosure of B.D.’s records, they concede that they initially consented
to this disclosure when the search for a residential facility began in 2012. See Pls.” SMF
§ 22 (“In 2012, Ms. Davis gave DCPS consent to send B.D.’s records to OSSE in order for
the process of making referrals to private schools[.]”). By September 13, 2013, plaintiffs
may have withdrawn consent, at least with respect to some of B.D.’s records. See AR 703—
45 (informing DCPS that certain medical records were being provided subject to a
requirement not to disclose them to non-IEP team members). But even if that is the case,
plaintiffs have failed to adequately connect the alleged disclosure of confidential records
after the point at which consent was withdrawn to the Davises’ ability to meaningfully
participate in B.D.’s educational placement. See Pls.” Mem. at 25-26. Accordingly, they
have failed to carry their burden in showing a FAPE denial occurred on this issue.

C. Hearing Officer Independence (Count 4)

In Count 4, plaintiffs challenge the District’s administrative due process system,

contending that hearing officers, including the hearing officer in this case, lack the

independence required by statute. Am. Compl. {] 74-78. Under the IDEA, a hearing

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officer must, at a minimum, not be “(I) an employee of the State educational agency or the
local educational agency involved in the education or care of the child; or (II) a person
having a personal or professional interest that conflicts with the person’s objectivity in the
hearing.” 20 U.S.C. § 1415((3)(A)@). Relying on general principles of agency law,
plaintiffs assert that the hearing officers’ contractual relationship with OSSE renders them
employees in violation of the statute. Pls.’ Mem. at 26-31. Defendant counters first that
plaintiffs are barred from bringing this claim due to a failure to exhaust administrative
remedies, and, in the alternative, that hearing officers’ contractual relationship with the
OSSE makes them independent contractors, not employees. Def.’s Mot. at 20-22.
Unfortunately for plaintiffs, I agree with defendant on the first point, and decline to address
the second.

As already discussed, “an allegation not presented to the independent hearing officer
at a due process hearing may not be raised for the first time in this Court.” Holdzclaw, 524
F. Supp. 2d at 47. In related litigation involving the same parties, I have already found
with respect to this precise argument that the Court lacks jurisdiction to hear lack-of-
hearing-officer-independence claims where plaintiffs fail to exhaust their administrative
remedies. See B.D., 2020 WL 5763630, at *9 (concluding challenges to hearing officer
independence could have been brought before a hearing officer in the first instance and
therefore failed to qualify for any exception to the exhaustion requirement). Not
surprisingly, I reach the same result again here.

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART plaintiffs’ Motion for

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Summary Judgment [Dkt. #44] on Count 1 on the basis that B.D. was denied a FAPE during
the 2013-2014 school year. The Court REMANDS the case to a hearing officer to
determine the appropriate amount of compensatory education to be awarded for this FAPE
denial, taking into account, as appropriate, the hearing officer’s May 11, 2021 decision on
remand in related case B.D. v. District of Columbia, 13-cv-1223 (OSSE Case No. 2013-
0211). The Court DENIES plaintiffs’ Motion for Summary Judgment on the remainder of

Count 1 and Count 4.

The Court DENIES IN PART defendant’s Cross-Motion for Summary Judgment
[Dkt. #46] on Count 1 to the extent it seeks judgment in its favor on the issue of whether
B.D. was denied a FAPE during the 2013-2014 school year. The Court GRANTS |
defendant’s Cross-Motion for Summary Judgment on the remainder of Count 1 and Count

4, An Order consistent with this decision accompanies this Memorandum Opinion.

:
RICHARD J. wh f

United States District Judge

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