United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2005 Decided October 25, 2005
No. 04-7084
IRENE BRANHAM, AS NEXT FRIEND OF THE MINOR CHILD
TERRANCE BRANHAM,
APPELLEE
v.
THE GOVERNMENT OF THE DISTRICT OF COLUMBIA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00986)
Mary T. Connelly, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellant. With her on the briefs were Robert J. Spagnoletti,
Attorney General, and Edward E. Schwab, Deputy Attorney
General.
Paul S. Dalton argued the cause and filed the brief for
appellee.
Before: EDWARDS, TATEL, and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
TATEL, Circuit Judge: Unable to convince a hearing officer
that his public school placement was inappropriate under the
Individuals with Disabilities Education Act, thirteen-year-old
Terrance Branham and his mother took their case to United
States District Court. Siding with the Branhams, the district
court reversed the hearing officer and ordered the District of
Columbia (1) to provide Terrance with four years of remedial
tutoring and (2) to pay for his attendance at a private school. On
appeal, the District, conceding that it denied Terrance the free
and appropriate public education to which federal law entitles
him, argues that nothing in the record supports the tutoring and
private placement awards. We agree. Both the Supreme Court
and this circuit have held that district courts may order school
districts to implement educational programs for handicapped
students only after finding, based on record evidence, that the
programs are tailored to meet the students’ specific educational
needs. Because the district court here made no such findings
with respect to either the tutoring or the private placement—
indeed, the record is so barren of evidence that making such
findings would have been impossible—we reverse and remand
for the court to develop an evidentiary record and fashion an
educational program designed to meet Terrance’s needs.
I.
Earlier this year in Reid v. District of Columbia, 401 F.3d
516 (D.C. Cir. 2005), we described the Individuals with
Disabilities Education Act (known as “IDEA”) this way:
Under [IDEA], states and territories, including the District
of Columbia, that receive federal educational assistance
must establish “policies and procedures to ensure,” among
other things, that “free appropriate public education,” or
“FAPE,” is available to disabled children. See 20 U.S.C.
§ 1412(a)(1)(A). . . . School districts may not ignore
disabled students’ needs, nor may they await parental
3
demands before providing special instruction. Instead,
school systems must ensure that “[a]ll children with
disabilities residing in the State . . . regardless of the
severity of their disabilities, and who are in need of special
education and related services, are identified, located, and
evaluated.” Id. § 1412(a)(3)(A). Once such children are
identified, a “team” including the child’s parents and select
teachers, as well as a representative of the local educational
agency with knowledge about the school’s resources and
curriculum, develops an “individualized education
program,” or “IEP,” for the child. See id. §§ 1412(a)(4),
1414(d). Pursuant to the Supreme Court’s decision in
Board of Education of the Hendrick Hudson Central School
District, Westchester County v. Rowley, 458 U.S. 176, 102
S. Ct. 3034, 73 L. Ed. 2d 690 (1982), the IEP must, at a
minimum, “provid[e] personalized instruction with
sufficient support services to permit the child to benefit
educationally from that instruction.” See id. at 203, 102 S.
Ct. 3034. . . . “If no suitable public school is available, the
[school system] must pay the costs of sending the child to
an appropriate private school.” Jenkins v. Squillacote, 935
F.2d 303, 305 (D.C. Cir. 1991).
Reid, 401 F.3d at 518-19 (second omission in original).
At issue in Reid was whether the district court had abused
its discretion in ordering, without explanation, tutoring in the
amount of one hour for each day that a learning-disabled
sixteen-year-old boy went without a FAPE. Although we
confirmed that compensatory education awards are available for
IDEA violations, id. at 522-23, we rejected the district court’s
“mechanical” calculation of that award, id. at 524. Reasoning
that a “cookie-cutter” approach, id. at 523, cannot be squared
with IDEA’s conferral of equitable authority to “grant such
relief as the district court determines is appropriate,” 20 U.S.C.
4
§ 1415(i)(2)(C)(iii), we held that “the ultimate [compensatory]
award must be reasonably calculated to provide the educational
benefits that likely would have accrued from special education
services the school district should have supplied in the first
place,” Reid, 401 F.3d at 524. Unlike “ordinary IEPs [that] need
only provide ‘some benefit,’ compensatory awards must do
more—they must compensate.” Id. at 525 (emphasis in
original). We emphasized repeatedly that this inquiry must be
qualitative, fact-intensive, and above all tailored to the unique
needs of the disabled student. Id. at 524.
Like the student in Reid, Terrance Branham is a teenager
whom the District of Columbia Public Schools (or “DCPS”)
classified as learning disabled. In October 1999, DCPS placed
Terrance at the Prospect Learning Center, a full-time special
education facility. Terrance’s first IEP was prepared the
following June.
Two and a half years later, Terrance’s test scores indicated
he had made only “very limited” progress while at Prospect.
Appellant’s App. 66 (testimony before hearing officer). His
performance remained “significantly below grade level.” Id. at
95 (Terrance’s IEP). School officials and Terrance’s mother,
appellee Irene Branham, met in January 2003 to develop a new
IEP that might better serve Terrance’s needs. Although
Terrance’s mother signed the IEP, she indicated her
disagreement with its contents in the space above her signature.
Later that month, the Branhams petitioned for an impartial
due process hearing, see 20 U.S.C. § 1415(f)(1)(A) (providing
right to due process hearing), alleging that DCPS had denied
Terrance a FAPE and seeking a private-school placement and
compensatory tutoring. The hearing officer found that DCPS
was providing Terrance with a FAPE and dismissed the
5
complaint. When Terrance later “aged out” of Prospect, he
enrolled at Cardozo High School, a general education school.
In the meantime, the Branhams brought suit in the United
States District Court for the District of Columbia, see 20 U.S.C.
§ 1415(i)(2)(A) (providing right to bring civil action), and filed
a motion for summary judgment. When DCPS missed the
deadline for responding, the district court entered a default
judgment in the Branhams’ favor. Branham v. District of
Columbia, No. 03-986 (D.D.C. Nov. 4, 2003). One week later,
DCPS moved to vacate the judgment, claiming it had
misunderstood the briefing schedule. In opposition, the
Branhams argued that Terrance had already “secured an
appropriate placement at the High Road’s Upper School of
Washington, D.C.” and that vacating the judgment would harm
Terrance’s education. Mem. in Opp’n to Def.’s Mot. to Alter or
and or [sic] in the Alternative to Vacate Order of Nov. 4, 2003,
at 2. The following day, DCPS filed its motion opposing the
grant of summary judgment, but said nothing about the proposed
placement at High Road. In their reply to DCPS’s opposition
brief, the Branhams asked the court to order DCPS “to place and
fund Terrance with transportation at High Road Upper School
of Washington D.C.,” Pl.’s Reply Mem. to Def.’s Opp. to
Summ. J. 6, but provided no information about the school. The
district court eventually vacated the default judgment and
considered the summary judgment motion on the merits.
Branham v. District of Columbia, No. 03-986 (D.D.C. Dec. 9,
2003).
In order to get a handle on the deficiencies in the record, the
district court held a status conference on April 15, 2004. The
court began the conference by observing that the “paucity” of
evidence introduced at the hearing regarding Terrance’s
disability, and in particular the lack of academic evaluations
detailing what support Terrance needed, would pose “a serious
6
practical problem”: “[W]e don’t have any of that information on
the record now in terms of ordering the relief that [Terrance is]
requesting.” Tr. of 4/15/04 Status Conf. 4. The judge told the
parties she was considering remanding the case so that a hearing
officer could get “further evidence on [Terrance’s] academic
progress or particularly the lack of it, and the reasons for it,
whether any evaluations were conducted.” Id.
Vehemently objecting to a remand, the Branhams argued
that the deficiencies in the record resulted from DCPS’s failure
for more than four years to evaluate Terrance. The Branhams’
lawyer again reported that Terrance had been “accepted at High
Roads,” which he described as “a full-time [special education]
program . . . that accepts and has a contract with the District of
Columbia public schools,” id. at 3, and emphasized that High
Road would be “a lateral move” for Terrance, id. at 6.
After questioning the Branhams’ counsel (though not about
High Road), the district court asked DCPS’s attorney whether he
had anything “to add or to say.” Id. at 10. “I don’t have much
to add,” he responded, “except that this is an appeal from a
hearing officer’s decision based upon the record.” Id. When the
judge pointed out that “the record says nothing,” counsel
repeated his belief “that the [hearing officer’s] opinion is
supported by the record.” Id. Pressed about DCPS’s failure to
monitor and evaluate Terrance, counsel said he “wasn’t prepared
to address those issues,” but reiterated that “[i]f it’s not in the
record, or if it is in the record, the Court has to give due
deference to the hearing officer’s opinion.” Id. at 11. Despite
having known for a year and a half about Terrance’s request for
private placement, and for at least four months about his
acceptance by High Road, DCPS mentioned neither High Road
nor any other private placement.
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One week later, the district court entered judgment for the
Branhams. Overruling the hearing officer, the court found that
DCPS had failed to show that Terrance’s IEP and his placement
at Prospect were adequate to meet his individual needs, that the
hearing officer’s conclusion to the contrary had no support in the
record, that Terrance’s placement at Prospect was inappropriate,
and that the District had denied him a FAPE. Branham v.
District of Columbia, No. 03-986, slip op. at 9-12 (D.D.C. Apr.
22, 2004). The district court gave Terrance two forms of relief.
First, it awarded “a lump sum grant of compensatory education
in the form of individual tutoring for denial of a FAPE for the
[four] years Terrance spent at Prospect.” Id. at 13. Although
the court offered no further explanation of the compensatory
award, both parties now agree that “the lump sum grant”
amounted to four years of tutoring as compensation for the four
years that DCPS denied Terrance a FAPE. Second, given
DCPS’s longstanding failure to meet its IDEA obligations, the
court concluded that a private placement would be most
appropriate. Because DCPS “ha[s] not provided any evidence
in the due process hearing or in [its] Opposition brief,
suggesting that the High Road School of the District of
Columbia is in any way inappropriate or that Terrance would not
benefit from that placement,” the court ordered DCPS to “enroll
Terrance in the High Road School of the District of Columbia
beginning in the 2004-2005 school year at no cost to [the
Branhams].” Id.
On appeal, the District does not challenge the district
court’s conclusion that DCPS denied Terrance a FAPE. It
appeals only the tutoring and private placement remedies,
arguing that the district court failed to make findings of fact
relating to their appropriateness, and in any event had
insufficient evidence to make any such findings.
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II.
We begin with the tutoring remedy. In its opinion, which
of course predated Reid, the district court neither assessed “what
services [Terrance] needs to elevate him to the position he
would have occupied absent the school district’s failures,” nor
offered any hint that the remedy was carefully tailored to
provide those services. See Reid, 401 F.3d at 527. The court’s
unexamined “lump sum grant of compensatory education . . . for
the years Terrance spent at Prospect” represents just the kind of
“cookie-cutter” approach to compensatory remedies that Reid
has now explicitly disavowed. Id. at 522-25.
Asked at oral argument to explain how the award of four
years of tutoring for four years without a FAPE was tailored to
Terrance’s needs, the Branhams’ counsel insisted that “[i]t just
happens to be that those numbers are equal and therefore you
can reasonably make [the] assumption” that the district court
tailored the award. Oral Arg. at 15:11. We may assume no such
thing. The district court never engaged in the qualitative, fact-
intensive analysis that Reid now requires, and in any event the
“paucity” (the district court’s own word) of record evidence
about Terrance’s disability would have precluded it from doing
so. Because the court’s compensatory tutoring award thus fails
to meet Reid’s demanding standard of “an informed and
reasonable exercise of discretion,” Reid, 401 F.3d at 527, we
will reverse and remand for reconsideration in light of Reid.
III.
Turning next to the question of Terrance’s placement, we
begin by observing that an award of private-school placement is
not, like the tutoring award, retrospective relief designed to
compensate for yesterday’s IDEA violations, but rather
prospective relief aimed at ensuring that the child receives
tomorrow the education required by IDEA. Although the two
9
forms of relief have different purposes, placement awards, like
compensatory awards, see Reid, 401 F.3d at 523-25, must be
tailored to meet the child’s specific needs. IDEA itself so
requires: It guarantees disabled students “special education and
related services designed to meet their unique needs.” 20 U.S.C.
§ 1400(d)(1)(A) (emphasis added). In Rowley, the Supreme
Court emphasized that “the benefits obtainable by children at
one end of the [disability] spectrum will differ dramatically from
those obtainable by children at the other end, with infinite
variations in between.” 458 U.S. at 202. As such, determining
what constitutes a FAPE will always require a fact-intensive and
child-specific inquiry.
To inform this individualized assessment, “[c]ourts
fashioning discretionary equitable relief under IDEA must
consider all relevant factors.” Florence County Sch. Dist. Four
v. Carter, 510 U.S. 7, 16 (1993); see also Reid, 401 F.3d at 523-
24. Specifically, courts have identified a set of considerations
“relevant” to determining whether a particular placement is
appropriate for a particular student, including the nature and
severity of the student’s disability, the student’s specialized
educational needs, the link between those needs and the services
offered by the private school, the placement’s cost, and the
extent to which the placement represents the least restrictive
educational environment. See Rowley, 458 U.S. at 202 (noting
that “sufficient educational benefit” will vary from child to
child); McKenzie v. Smith, 771 F.2d 1527, 1531 (D.C. Cir. 1985)
(affirming district court’s placement decision that took into
consideration the student’s “individual needs”); id. at 1534-35
(affirming private placement based on match between a
student’s needs and the services offered at a particular school);
Carter, 510 U.S. at 16 (holding that tuition reimbursement may
be reduced if the cost of the private education is
“unreasonable”); Holland v. District of Columbia, 71 F.3d 417,
425 (D.C. Cir. 1995) (remanding for consideration, among other
10
things, whether the costs of a private placement were
reasonable); Walczak v. Fla. Union Free School Dist., 142 F.3d
119, 132 (2d Cir. 1998) (discussing IDEA’s preference for less
restrictive environments). Because placement decisions
implicate equitable considerations, moreover, courts may also
consider the parties’ conduct. Reid, 401 F.3d at 524.
The record in this case contains none of the required
information. DCPS’s repeated failure to evaluate Terrance led
to a “paucity” of record evidence about Terrance’s disability.
The record provides no insight about the precise types of
educational services Terrance needs to progress. Still less does
the record reveal what services High Road would provide, the
cost of those services, whether those services would meet
Terrance’s needs, or whether the school would provide the least
restrictive appropriate educational environment. To be sure, at
the April 15 status conference the Branhams’ lawyer told the
district court that High Road provided full-time special
education services and had a contract with DCPS. But even
assuming for the sake of argument that these unsupported
assertions could be considered evidence, they tell us next to
nothing about High Road’s program or how it might serve
Terrance’s specific educational needs. In short, the district court
knew so little about Terrance’s needs and High Road’s services
that its placement order could not have amounted to “an
informed and reasonable exercise of discretion.” Id. at 527.
IV.
We close by addressing what we learned at oral argument
about Terrance’s plight. Asked whether setting aside the
remedial order might disrupt Terrance’s education, the District’s
counsel assured us that DCPS would continue supporting
Terrance at High Road until the district court approved a new
IEP. But the Branhams’ counsel then informed us that Terrance
had never actually attended High Road because, given the
11
District’s decision to appeal to this Court, the school thought it
too risky to accept Terrance. According to counsel, Terrance
instead continued attending Cardozo High School until “he got
into trouble” and was sent to the Oak Hill Youth Center, Oral
Arg. at 17:00, “a juvenile detention facility with a history of
problems so serious that even the District has called it a
‘troubled program,’” District of Columbia v. Jerry M., 738 A.2d
1206, 1212 (D.C. 1999). Terrance has been moved yet again,
this time to a “secured group home in Baltimore.” Oral Arg. at
21:43.
We describe Terrance’s “education” to emphasize the
consequences of DCPS’s utter failure to fulfill its IDEA
obligations. It is because DCPS shirked its duty to evaluate and
monitor Terrance that the record says so little about his
academic needs. DCPS provoked the default judgment that
prompted Mrs. Branham to seek an alternative placement for her
son in the first place. And DCPS has offered no explanation for
its total failure from November 2003 to April 2004 to make any
effort, whether in supplemental motions or at the April 15 status
conference, to inform the district court that it objected to the
High Road placement—a particularly serious failure given its
claim here that the district court was out of line in ordering the
placement.
At the time the district court issued its decision, Terrance
had spent four years without a FAPE, and his mother had spent
fifteen months contesting his placement. Terrance is now fifteen
years old, but there is still time to help him.
V.
We reverse the judgment of the district court and remand
for further proceedings consistent with this opinion. Although
Reid permits the district court either to take supplemental
evidence or to return the case to the hearing officer, see Reid,
12
401 F.3d at 526, in light of the educational harms Terrance has
already suffered, we encourage the district court to undertake the
evidentiary hearing itself in order to minimize the potential for
further delay. On remand, both parties may submit evidence as
to the appropriateness of their preferred plan for Terrance, and
of course IDEA continues to obligate DCPS to come forward
with a plan that meets Terrance’s needs. See 20 U.S.C.
§ 1412(a)(1)(A). In the end, it is the district court’s
responsibility to ensure it has a record sufficiently developed to
fulfill its obligation under IDEA, namely, to weigh “all relevant
factors,” Carter, 510 U.S. at 16, and “grant such relief as [it]
determines is appropriate,” § 1415(i)(2)(C)(iii).
So ordered.