Brown v. District of Columbia , 179 F. Supp. 3d 15 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
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ANTONIO BROWN, )
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Plaintiff, )
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v. ) Civil Case No. 15-0043 (RCL)
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DISTRICT OF COLUMBIA, )
)
Defendant. )
)
______________________________________ )
MEMORANDUM OPINION
Plaintiff Antonio Brown files this action under the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. §§ 1400 et. seq, claiming that he was denied a free appropriate public
education (“FAPE”), as the statute requires. In bringing this lawsuit, plaintiff also seeks to reverse
the decision of an impartial hearing officer, who ruled against the plaintiff at the administrative
level. Plaintiff now brings the following claims, all of which the hearing officer denied, alleging
that he was denied a FAPE because: (i) District of Columbia Public Schools (“DCPS”) failed to
create an appropriate Individualized Education Plan (“IEP”) for him at two IEP meetings held in
the summer of 2014; (ii) DCPS failed to discuss and determine his physical placement during the
IEP meetings; (iii) DCPS neglected to consider new data regarding plaintiff’s special education
needs following a violent shooting; (iv) DCPS placed plaintiff in Anacostia Senior High School
(“Anacostia HS”), which plaintiff claims was incapable of providing him a FAPE; (v) DCPS failed
to issue a prior written notice regarding his placement in Anacostia HS; and (vi) DCPS
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inappropriately changed plaintiff’s placement from a full-time special education school to a less
restrictive environment. Compl. ¶ 52.
Plaintiff now seeks a declaratory judgment stating that DCPS denied him a FAPE and
requests that the Court order DCPS to issue a written notice for plaintiff to attend New Beginnings
Vocational School (“New Beginnings”). Id. at 35–36. Additionally, plaintiff requests that DCPS
be ordered to fund tuition and transportation to attend New Beginnings retroactive to January 6,
2014, convene an IEP meeting to incorporate new data, and if additional information is needed,
administer medical and psychological evaluations to determine the full extent of plaintiff’s special
education needs. Id. at 36.
Recently before the Court were plaintiff’s [10] motion for summary judgment, defendant’s
[14] cross-motion for summary judgement, and plaintiff’s [19] objection to the Magistrate Judge’s
report and recommendation [18]. As stated in an Order [21] dated March 31, 2016, in consideration
of the parties’ filings, the applicable law, and the record herein, the Court finds that the plaintiff
has been denied a FAPE and will therefore grant his motion for summary judgment and deny
defendant’s cross-motion for summary judgment.
In reaching this result, the Court finds that the defects in plaintiff’s IEP—specifically the
District’s failure to describe the plaintiff’s least restrictive environment—deprived plaintiff of a
FAPE. Moreover, the Court finds that the District’s failure to convene a meeting or incorporate
the effects of plaintiff’s recent shooting-related injuries represents a second, independent instance
in which plaintiff was denied a FAPE. To remedy these violations, the Court finds it is appropriate
to order DCPS to assign plaintiff to New Beginnings, to fund his tuition and transportation to
attend New Beginnings retroactively effective January 6, 2014, to require the District to convene
a new IEP meeting, and if needed, administer necessary evaluations to determine the extent and
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nature of plaintiff’s disabilities. In granting this relief, the Court has rendered plaintiff’s four
remaining claims moot.
I. BACKGROUND
The background of this case is provided in detail in the Report and Recommendation. See
Report and Recommendation 2–4, ECF No. 18. To summarize, on December 2, 2013, a hearing
officer found that DCPS denied plaintiff—who was nineteen years old at the time—a FAPE by
failing to timely identify, locate, and evaluate him for special education services. Id. at 2. The
hearing officer then ordered DCPS to fund tuition, fees, and transportation for the plaintiff to attend
New Beginnings until a multidisciplinary team (“MDT”) met to determine his eligibility.
After the hearing officer determined that DCPS denied plaintiff a FAPE, DCPS personnel
met twice in the summer of 2014 to determine how best to deal with plaintiff’s case. Report &
Recommendation 2, ECF No. 18. First, on June 26, 2014, his MDT met and “determined that
Plaintiff was eligible for special education and related services under the disability classification
of Specific Learning Disability.” Id. Next, on July 29, 2014, plaintiff’s IEP team met and
developed his IEP for the 2014-2015 school year. Id. On the page of plaintiff’s IEP entitled “Least
Restrictive Environment” (“LRE”), the IEP team simply listed the number of hours of specialized
instruction and behavioral support services plaintiff would receive and noted that plaintiff required
“intense remediation in all areas.” Id.; see also Administrative Record 83, ECF No. 9-3 (showing
the page of plaintiff’s IEP entitled “Least Restrictive Environment”). Indeed, the team did not
indicate or describe plaintiff’s LRE or the type of placement he needed along the continuum of
alternative placements. Report & Recommendation 2 (noting that the LRE page of the IEP
contained no explanation for why “services cannot be provided in the general education setting”);
see also id. at 11 (stating that the hearing officer expressly noted the IEP failed to discuss plaintiff’s
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LRE and to undertake consideration of alternative placements). With this information missing,
plaintiff’s IEP was then finalized on August 26, 2014. Id. at 2.
Roughly two months after the IEP was complete, DCPS sent a letter to Plaintiff stating that
he was to be relocated from New Beginnings and that his “‘new location of special education
services for the 2014-2015 school year is Anacostia HS.’” Id. at 3 (quoting Letter from DCPS,
Administrative Record 121, ECF No. 9-3). DCPS had found, essentially, that “Anacostia HS is the
DCPS school that has the programming to meet Plaintiff’s IEP needs.” Id. Believing both that the
District violated his procedural rights afforded under the IDEA and that New Beginnings was the
only school that could appropriately serve his needs, plaintiff filed an administrative complaint on
October 23, 2014, alleging that the DCPS denied him a FAPE. Id.On November 3, 2014, DCPS filed a response denying plaintiff’s allegations, which
presented the following issues to be determined by a hearing officer at a December 2014 due
process hearing:
a. Whether DCPS denied plaintiff a FAPE by failing to create an appropriate IEP for plaintiff
at the IEP meetings held on June 25, 2014 and July 29, 2014 and through the present time:
1. whether DCPS failed to discuss, determine, and indicate on the IEP what the
appropriate LRE was for plaintiff and the type of placement plaintiff needed along the
continuum of alternative placements;
2. whether DCPS denied plaintiff a FAPE by failing to discuss and determine plaintiff’s
placement at the IEP meetings held on June 25, 2014 and July 29, 2014, and instead
delegating the placement decision to a team that did not include the plaintiff or
individuals knowledgeable about plaintiff;
3. whether DCPS denied plaintiff a FAPE by failing to attend to new data presented to
the Agency following the meetings on June 25, 2014 and July 29, 2014 regarding
plaintiff’s needs following a severe injury from a shooting, and by failing to hold a
meeting to discuss these new needs and update his present levels of performance,
despite requests from plaintiff’s representatives;
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b. Whether DCPS denied plaintiff a FAPE when it placed plaintiff at Anacostia HS on
October 22, 2014:
1. whether DCPS denied plaintiff a FAPE by failing to offer plaintiff a
placement/program/school capable of providing him a FAPE, given his needs at the
current time;
2. whether DCPS failed to issue a prior written notice, or otherwise place plaintiff in a
particular educational program/placement within District High School, depriving the
plaintiff of the ability to make meaningful educational decisions for himself;
3. whether DCPS inappropriately changed plaintiff’s educational placement from a full-
time special education day school to a less restrictive environment.
See Report & Recommendation 3–4 (citing Hearing Officer Determination 2–3, Administrative
Record 585–86, ECF No. 9-9 at 26–27; Compl. ¶ 52).
In an administrative decision dated January 6, 2015, the hearing officer denied relief as to
each issue presented. See Hearing Officer Determination 11–20, Administrative Record 594–603,
ECF No. 9-9 at 35–44. Following this ruling and having exhausted his administrative remedies,
plaintiff filed the complaint in the present lawsuit, alleging the same six counts against DCPS.
Plaintiff now asks the court to reverse the decision of the hearing officer and order that DCPS
designate New Beginnings as plaintiff’s educational location, fund tuition and transportation for
plaintiff to attend New Beginnings retroactive to January 6, 2014, update the IEP, and if needed,
administer necessary evaluations to determine the extent and nature of plaintiff’s disabilities.
In May of 2015, plaintiff and defendant filed a motion and cross-motion for summary
judgment, respectively. In his motion, plaintiff asserts that he has demonstrated by a
preponderance of the evidence that DCPS denied him a FAPE as it relates to each claim presented.
Report & Recommendation 4 (citing Mem. of Points [and] Authority in Supp. of Pl.’s Mot. for
Summ. J. 16–45, ECF No. 10-1). With respect to plaintiff’s first claim, he argues “that in order for
an IEP to be appropriate, an appropriately constituted IEP team must first have a discussion about
the student’s LRE where the student belongs on the continuum of alternative placements and then
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determine, in the student’s IEP, what the LRE and placement will be for such student.” Pl.’s Mot.
for Summ. J. 18. Because the district failed to meet these obligations, the argument goes, the
District denied plaintiff a FAPE. In response, the defendant claims that because the IDEA does not
require the District to identify a particular school in a student’s IEP, the plaintiff’s IEP was legally
sufficient. Def.’s Opp’n to Pl.’s Mot. for Summ. J. and Def.’s Cross-Mot. for Summ. J. 10, ECF
No. 13. In reply, plaintiff states that DCPS’s failure to identify a particular building in his IEP “is
not at all the premise of Plaintiff’s argument.” Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. for Summ.
J. 9, ECF No. 15. Instead, plaintiff states that his claim rests on the IEP team’s failure to “discuss
and determine the student’s educational placement” at the summer 2014 meeting, including the
placement along the continuum of alternative placements and the level of restrictiveness needed.
Id. In sum, plaintiff alleges “an inadequacy with the IEP itself” constitutes a denial of a FAPE. Id.
at 13. In addition to claim 1, the parties also fully briefed claims 2 through 6. The Court then
referred these motions to a Magistrate Judge for report and recommendation.
a. Report and Recommendation
Although the parties fully briefed all six of plaintiff’s claims, the Magistrate Judge’s report
and recommendation zeroes in on the first—i.e., that plaintiff was denied a FAPE because his IEP
was defective. In assessing this claim, both the Magistrate Judge and the hearing officer before her
expressly highlighted “at least two deficiencies in the IEP: (1) the failure of DCPS to discuss,
determine, and indicate on the IEP Plaintiff’s least restrictive environment, and (2) the failure of
DCPS to undertake consideration of the appropriate placement along the continuum of
placements.” Report & Recommendation 11 (quotations omitted). In considering these
deficiencies, however, the hearing officer ruled that “Petitioner did not meet the burden of proving
that DCPS denied Student a FAPE.” Id. at 12 (quoting Hearing Officer Determination 12,
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Administrative Record 595, ECF 9-9 at 36). In reviewing this portion of the hearing officer’s
decision, however, the Magistrate Judge disagreed. Looking to the IEP’s deficiencies, the
Magistrate Judge determined that the hearing officer’s conclusion that the IEP’s deficineies did
not deny plaintiff as FAPE “lack[ed] reasoned and specific findings,” and recommended that it be
set aside. Id. In coming to this conclusion, the Magistrate Judge expressly found that the IDEA
requires an IEP to include a discussion of a student’s LRE and appropriate placement along the
continuum of placement, see Report & Recommendation 11–12; see also supra at 15, a
requirement which defendant failed to meet.
After concluding the hearing officer wrongly decided plaintiff’s first claim and that the
defendant failed to satisfy the IDEA’s obligation to discuss plaintiff’s LRE and appropriate
placement along the continuum in his IEP, the Magistrate Judge remanded the claim to the hearing
officer to make further factual findings. Indeed, the Magistrate Judge stated that “judicial review
of whether or not a student was denied a FAPE cannot be meaningfully accomplished in the
absence of a determination by DCPS regarding the student’s least restrictive environment and
appropriate placement.” Id. As such, the report recommended that the action “be remanded [to the
hearing officer] for further proceedings, including a determination of Plaintiff’s least restrictive
environment, and an appropriate placement ‘along the continuum of placements.’” Id. at 13. Put
differently, in the report’s view, the Court will only be able to determine whether or not the plaintiff
was denied a FAPE once it determines the student’s LRE and an appropriate placement along the
continuum of placements. Because the hearing officer—not the Court—is in the best position to
make those determinations, the Magistrate Judge found that remand is appropriate.
In addition to recommending that the action be remanded to the hearing officer to
determine the LRE and discuss alternative placements, the Report also found that plaintiff’s other
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five claims were depended upon the resolution of the first claim and therefore could not be ruled
on until the first claim was resolved. Essentially, all six claims assert that plaintiff was denied a
FAPE. And as stated, the report found that in order to determine whether or not plaintiff was denied
a FAPE, a court must measure the student’s actual placement against his LRE and consider
alternative placements along the continuum of placements. Following this logic, the Magistrate
Judge determined, the remaining six issues all “necessarily involve[] a determination of the first”
issue. Id. at 13 n.2. In other words, the Magistrate Judge found that because determining a student’s
LRE and possible alternative placements is critical in evaluating whether or not he was denied a
FAPE, plaintiff’s remaining claims—all of which allege he was denied a FAPE—could not be
evaluated until the hearing officer makes these baseline determinations embedded in claim 1 (i.e.,
his LRE and appropriate placement along the continuum).
Responding to this report, the plaintiff objected both to the Magistrate Judge’s
recommendation to remand plaintiff’s first claim to the heading officer and to the Magistrate
Judge’s determination that plaintiff’s remaining claims all depend on the resolution of his first
claim. First, plaintiff claims that remand is inappropriate in this case because the issue “could have
and should have been decided on the record, without the need for any additional fact-finding
through a remand.” Pl.’s Mot. to Reject the Report and Recommendation 3, ECF No. 19. Indeed,
with respect to the first claim, plaintiff argues “DCPS denied him a FAPE by failing to create
appropriate IEPs for him during two meetings held in late-June 2014, specifically, by failing to
discuss, determine, and indicate on the IEP, not only what the appropriate LRE was for him, but
the type of placement along the continuum of alternative placements.” Id. at 6. In other words, the
first claim asserts that plaintiff was denied a FAPE because the IEP was inadequate, not because
his Anacostia HS was incapable of serving his needs (plaintiff makes variations of that argument
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in claims four through six). Therefore, in plaintiff’s view, the Court need not consider plaintiff’s
LRE to rule on this claim. Second, plaintiff argues that although “all of the claims litigated in the
underlying administrative case . . . came from the same nucleus of facts, they implicated a number
of different statutory and legal requirements that are not all reliant upon the team’s determination
of the student’s appropriate LRE and placement.” Id. at 5–6. Accordingly, the Court is presently
able to determine all six of plaintiff’s claim and need not wait until the hearing officer makes
additional factual determinations.
Lastly, it is important to note that neither plaintiff nor defendant object to the report and
recommendation’s findings that the IDEA and its regulations require that a student’s IEP include
a discussion of his LRE and an appropriate placement along the continuum of placements. See id.
at 2–3.
II. LEGAL STANDARDS
a. Summary Judgment Under Federal Rule of Civil Procedure 56
As stated, the parties have filed cross motions for summary judgment pursuant to Federal
Rule of Civil Procedure 56 (“FRCP 56”). Under FRCP 56, summary judgment must be granted
when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party
who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on
a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving
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party’s favor. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than
“the mere existence of a scintilla of evidence” in support of its position. Id. at 252.
b. Review of Administrative Decision Under the IDEA
In the present action, plaintiff seeks to overturn the decision of an administrative hearing
officer. The IDEA permits “any party aggrieved by the findings and decision” rendered during
administrative proceedings to “bring a civil action” in state or federal court without regard to the
amount in controversy. 20 U.S.C. § 1415(i)(2). The reviewing court “shall receive the records of
the administrative proceedings, shall hear additional evidence at the request of a party, and, basing
its decision on the preponderance of the evidence, shall grant such relief as the court determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(C). In a review of a hearing officer’s decision, the burden of
proof is always on the party challenging the administrative determination. Reid ex rel. Reid v.
District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d
884, 887 (D.C. Cir. 1989)); N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 66
(D.D.C. 2010) (citing this standard).
Although administrative decisions are reviewed based on the preponderance of the
evidence, this standard does not authorize unfettered de novo review. See Bd. of Educ. of Hedrick
Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 206 (1982) (“Thus the
provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no
means an invitation to the courts to substitute their own notions of sound educational policy for
those of the school authorities which they review.”). Indeed, when considering an appeal of a
hearing officer’s ruling, courts must give the administrative proceedings “due weight,” id., and
“[f]actual findings from the administrative proceedings are to be considered prima facie
correct.” Roark ex rel. Roark v. District of Columbia, 460 F. Supp. 2d 32, 38 (D.D.C. 2006)
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(quoting S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003)). However,
the IDEA also suggests “less deference than is conventional in administrative proceedings,” Reid,
401 F.3d at 521, since the district court is allowed to hear additional evidence at the request of the
party. See 20 U.S.C. § 1415(i)(2)(C)(ii). Lastly, when no additional evidence is introduced, a
motion for summary judgment operates as a motion for judgment based on the evidence
constituting the administrative record. 20 U.S.C. § 1415(i)(2)(B); District of Columbia v.
Ramirez, 377 F. Supp. 2d 63, 67 (D.D.C. 2005) (citing this standard).
c. Reviewing a Magistrate Judge’s Report and Recommendation
As discussed, plaintiff has objected to two specific portions of the magistrate judge’s report
and recommendation. This Court “considers de novo those portions of [a magistrate judge’s report
and] recommendation to which objections have been made, and ‘may accept, reject, or modify the
recommended decision[.]’” Rooths v. District of Columbia, 802 F. Supp. 2d 56, 59–60 (D.D.C.
2011) (emphasis in original) (quoting Fed. R. Civ. P. 72(b)). In other words, the Court’s analysis
with respect to such issues is “equivalent to a decision in the first instance on the merits” of
plaintiff’s summary judgment motion. Id. at 60. In contrast, 28 U.S.C. § 636, which confers power
and jurisdiction to magistrate judges, does not “require any review at all, by either the district court
or the court of appeals, of any issue that is not the subject of an objection.” Thomas v. Arn, 474
U.S. 140, 149 (1985).
III. ANALYSIS
With respect to the plaintiff’s first claim, the Court finds that plaintiff was denied a FAPE
and will grant his motion for summary judgment. In coming to this conclusion, the Court will first
adopt the Magistrate Judge’s uncontested legal conclusion that the IDEA requires an IEP to discuss
a student’s LRE and possible alternative placements. Second, the Court finds that the District’s
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violation of this requirement was more than a mere technical violation and effectively deprived
plaintiff of a FAPE. Third, looking to plaintiff’s third claim, the Court finds that the District’s
failure to convene an IEP meeting to discuss the disability-related effects of a recent shooting also
represented the deprivation of a FAPE. Lastly, to remedy these violations, the Court finds it is
appropriate to require DCPS (i) to issue a Prior Written Notice for plaintiff to attend New
Beginnings, (ii) to fund tuition and transportation for plaintiff to attend New Beginnings
Vocational School retroactive to January 6, 2014; (iii) to convene an IEP meeting to discuss and
respond to plaintiff’s recently developed disability needs; and (iv) if needed, to administer
necessary evaluations to determine the extent and nature of plaintiff’s disabilities.
After ordering these remedies, the plaintiff’s four remaining claims are moot because the
Court is not in a position to award any additional effective relief. Lemon v. Geren, 514 F.3d 1312,
1315 (D.C. Cir. 2008) (stating that a claim becomes moot if it is “impossible to grant the prevailing
party effective relief”).
a. The Inadequacy of the June 2014 IEP
The Court finds that plaintiff was denied a FAPE because his June 2014 IEP lacked any
discussion of his least restrictive environment and the type of placement he needed along the
continuum of alternative placements. The core of the IDEA is “the cooperative process that it
establishes between parents and schools.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53
(2005). And importantly, the “central vehicle for this collaboration is the IEP process.” Id.; see
also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 260 (Souter, J., dissenting) (“[T]aking part in
the collaborative process of developing an IEP [] is the ‘modus operandi’ of the IDEA.” (emphasis
in original) (quoting Sch. Comm. of the Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471
U.S. 359, 368 (1985))). As another Judge on this Court noted, “the IDEA requires that a school
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district do more than simply provide services adequate to meet the needs of disabled students; it
requires school districts to involve parents in the creation of individualized education programs
tailored to address the specific needs of each disabled student.” N.S. ex rel. Stein v. District of
Columbia, 709 F. Supp. 2d 57, 70 (D.D.C. 2010) (citing A.I. ex rel. Iapalucci v. District of
Columbia, 402 F. Supp. 2d 152, 163–64 (D.D.C. 2005); see also Town of Burlington, Mass., 471
U.S. at 368 (“In several places, the Act emphasizes the participation of the parents in developing
the child’s educational program and assessing its effectiveness.” (citing 20 U.S.C. §§ 1400(c),
1401(19), 1412(7), 1415 (b)(1)(A), (C), (D), (E), and 1415(b)(2); 34 CFR § 300.345 (1984))).
In conducting this collaborate process, school districts must tailor and develop an IEP to
meet the specific special-education needs of each student with a disability. See 20 U.S.C. §
1414(d)(2)(A). The plan is developed by the student’s IEP Team, a multidisciplinary team
consisting of the student’s parents and teachers, as well as educational specialists, that meets and
confers in a collaborative process to determine the best way to accommodate the needs of the
student and provide a FAPE. 20 U.S.C. § 1414(d)(1)(B); see also K.S. v. District of Columbia, 962
F. Supp. 2d 216, 220 (D.D.C. 2013) (explaining the role of the IEP team). Moreover, the IEP must
be “specific enough to allow parents to understand what services will be provided and make a
determination about whether the proposed placement is adequate.” Stein, 709 F. Supp. 2d at 70. In
sum, the IEP meeting and the IEP process more broadly are designed to be transparent, accessible,
and interactive. When the process works as intended, parents and other stakeholders are, at a
minimum, able to provide meaningful input to shape a student’s education.
Given that the IEP is critical to the design and functioning of the FAPE, see, e.g., Town of
Burlington, Mass., 471 U.S. at 368 (“The Modus Operandi of the Act is the already mentioned
‘individualized educational program.’”); Leggett v. District of Columbia, 793 F.3d 59, 67 (D.C.
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Cir. 2015) (“[T]he IEP is the vehicle through which school districts typically fulfill their statutory
obligation to provide a free appropriate public education . . . .”), it logically follows that a school
district’s failure to adhere to requirements and procedures of the IEP may result in a deprivation
of a FAPE and a violation of the IDEA. See Bd. of Educ. of Hedrick Hudson Cent. Sch. Dist.,
Westchester Cnty. v. Rowley, 458 U.S. 176, 205–06 (1982) (“It seems to us no exaggeration to say
that Congress placed every bit as much emphasis upon compliance with procedures giving parents
and guardians a large measure of participation at every stage of the administrative process, as it
did upon the measurement of the resulting IEP against a substantive standard.” (citation omitted));
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (citing this language in Rowley); see
also Iapalucci, 402 F. Supp. 2d at 163–64 (“[W]hen a school district or other state agency violates
‘the procedural requirements of the Act by failing to develop an IEP in the manner specified, the
purposes of the Act are not served, and the district may have failed to provide a FAPE.’” (quoting
W.G. v. Bd. of Trs. of Target Range Sch. Dist., 960 F.2d 1479, 1485 (9th Cir. 1992))).
Of course, “procedural flaws do not automatically render an IEP legally defective;” see
N.S. ex rel. Stein v. District of Columbia, 701 F. Supp. 2d 57, 67 (D.D.C. 2010) (quotation omitted),
however, procedural violations often affect a student’s substantive rights, and in such cases, these
procedural violations may constitute the denial of a FAPE. See Leggett v. District of Columbia,
793 F.3d 59, 67 (D.C. Cir. 2015) (“[A] school district’s failure to comply with the procedural
requirements of IDEA will be ‘actionable’ only ‘if those procedural violations affected the
student’s substantive rights.’” (quoting Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828,
832, 834 (D.C. Cir. 2006)); see also Jalloh v. District of Columbia, 968 F. Supp. 2d 203, 211
(D.D.C. 2013) (citing this standard); N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57,
67 (D.D.C. 2010) (same). More specifically, a procedural defect in an IEP results in a denial of a
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FAPE if it “(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.” 20 U.S.C. § 1415(f)(3)(E)(ii). In other words, to set aside an IEP, “there
must be some rational basis to believe that procedural inadequacies compromised the pupil’s right
to an appropriate education, seriously hampered the parents’ opportunity to participate in the
formulation process, or caused a deprivation of education benefits.” Stein, 709 F. Supp. 2d at 67(quoting Roland M. v. Concord Sch. Comm., 901 F.2d 983, 994 (1st Cir. 1990)).
Consistent with the requirement that an IEP meeting provide parents with a meaningful
opportunity to participate in the process, this Court will adopt the portion of the Magistrate Judge’s
report which states that an IEP is inadequate if it does not include a description of the student’s
least restrictive environment and discussion of his appropriate placement along the continuum.
Otherwise, a student and his parents would be in a weak position to inform or perhaps challenge
the IEP team’s determinations, something the IDEA clearly prioritizes. See infra at 10.
Specifically, the report and recommendation made the following legal determination, which
neither the plaintiff nor defendant objected to:
[I]t appears that no provision of the statute or regulations, by express terms, requires
that an IEP include a determination of a student’s least restrictive environment and
appropriate placement [along the continuum of placements]. However, the
undersigned finds that the statute and regulations, read in context, in fact impose
such requirement. 20 U.S.C. § 1414(d)(1)(A)(i)(V) (providing that an IEP must
include “an explanation of the extent, if any, to which the child will not participate
with nondisabled children in the regular class and in activities described in
subclause (IV)(cc)[.]”); see also A.I. ex rel. Iapalucci, 402 F. Supp. 2d at 159(holding that an IEP must include, among other things, a statement regarding “the
child’s ability to interact with non-disabled children”).
Report & Recommendation 12.
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Moreover, with respect to the LRE specifically, other Judges on this Court have noted an
IEP is appropriate when it “‘enable[s] the child to achieve passing marks and advance from grade
to grade’ in the ‘least restrictive environment’ possible.” Dixon v. District of Columbia, 83 F. Supp.
3d 223, 232 (D.D.C. 2015) (quoting K.S. v. District of Columbia, 962 F. Supp. 2d 216, 220 (D.D.C.
2013)); see also Cooper v. District of Columbia, 77 F. Supp. 3d 32, 38 (D.D.C. 2014) (quoting the
same language); Capital City Pub. Charter Sch. v. Gambale, 27 F. Supp. 3d 121, 124 (D.D.C.
2014) (“[A]n IEP must ensure, ‘[t]o the maximum extent appropriate,’ that the disabled students
is placed in the least restrictive environment.” (quoting 20 U.S.C. § 1412(a)(5)(A))); A.M. v.
District of Columbia, 933 F. Supp. 2d 193, 206 (D.D.C. 2013) (“[The] IEP was also appropriate
because it allowed [plaintiff] to be educated in the least restrictive environment.”). Indeed, a
survey of recent IDEA cases suggests that it is standard to include a description of a student’s LRE
in his IEP, lending further support to the Magistrate Judge’s finding. See, e.g., Moradnejad v.
District of Columbia, No. 14-1159, 2016 WL 1275577 (D.D.C. Mar. 31, 2016) (alleging that the
“least restrictive environment” contained in plaintiff’s IEP was “inappropriately changed”); Ward
v. District of Columbia, No. 13-cv-0098, 2013 WL 6869663 (D.D.C. Dec. 23, 2013) (“With respect
to the least restrictive environment (‘LRE’) provision, Plaintiff’s IEP prescribes . . . .”); M.O. v.
District of Columbia, 20 F. Supp. 3d 31, 36 (D.D.C. 2013) (The IEP “appears to reflect reasonable
judgments [by the student’s IEP team] as to how to serve [plaintiff’s] unique educational needs in
the least restrictive environment . . . .”); Savoy v. District of Columbia, 844 F. Supp. 2d 23, 27
(D.D.C. 2012) (quoting the IEP’s full and detailed description of the plaintiff’s least restrictive
environment).
Looking beyond recent case law, this conclusion is sensible given the importance the IDEA
places on determining a student’s LRE. 20 U.S.C. § 1412(a)(5)(A) (“[T]o the maximum extent
16
appropriate, children with disabilities . . . are educated with children who are not disabled.”);
Leggett, 793 F.3d at 74 (The IDEA “requires that a child be educated in the least restrictive
environment possible.”). Not only that, but the IEP form itself includes an entire page entitled
“Least Restrictive Environment (LRE),” see Administrative Record 83, ECF No. 9-3, further
supporting that an IEP is deficient if a school district does not “discuss, determine, and indicate on
the IEP” a student’s least restrictive environment. Report & Recommendation 11 (citing Hearing
Officer Determination 12, Administrative Record 595, ECF 9-9 at 36).
In sum, given the emphasis the IDEA places on the concept of an LRE and the central role
the IEP plays in the broader statutory framework, it only makes sense that—as the Magistrate
Judge concluded—an IEP team is required to discuss a student’s specific LRE and the IEP is
required to include at least a brief description of it.1 If that were not the case, it would be very
difficult to ensure that the IEP “‘enable[s] the child to achieve passing marks and advance from
grade to grade’ in the ‘least restrictive environment’ possible.” Dixon, 83 F. Supp. 3d at 232
(quoting K.S., 962 F. Supp. 2d at 220). Perhaps more importantly, it would undermine a student
and parent’s right to engage in the collaborative process engineered to create an IEP “tailored to
address the specific needs of each disabled student.” Stein, 709 F. Supp. 2d at 70 (citing Iapalucci,
1
In addition to a general description LRE, plaintiff makes a strong argument that the District is also required
to include some sort of description of the “continuum of alternative placements.” See Pl.’s Mot. for Summ.
J. 17, ECF No. 10-1. Indeed, the Department of Education’s implementing regulations specifically lists the
types of placements included in this continuum, see 34 C.F.R. § 300.115, and identifies a discussion of the
alternative placements as an “LRE requirement[].” See 34 C.F.R. § 300.115 (citing 34 C.F.R. § 300.115 as
one of the LRE requirements). And indeed, the Magistrate Judge’s report and recommendation came to the
uncontested conclusion that such a discussion is required in a student’s IEP. See Report & Recommendation
11–12.
17
402 F. Supp. 2d at 163–64). Therefore, because the plaintiff’s IEP fails to discuss his LRE,2 as
well as appropriate alternative placements, the Court finds that his IEP is legally deficient.
Although the Court will adopt the Magistrate Judge’s finding that an IEP is inadequate if
it lacks both a description of the LRE and alternative placements, it will respectfully reject the
recommendation to remand the case to the hearing officer for further factual determinations. As
stated, a procedural defect3 relating to an IEP deprives a student of a FAPE if it “significantly
impeded the parents’ opportunity to participate in the decisionmaking process regarding the
provision of a free appropriate public education to the parents’ child.” 20 U.S.C. §
1415(f)(3)(E)(ii). Looking to this standard, the Court finds that the school district’s failure to fully
discuss the LRE at the IEP meeting or describe it on the IEP itself effectively deprived plaintiff of
the opportunity “to understand what services will be provided and make a determination about
whether the proposed placement is adequate.” Stein, 709 F. Supp. 2d at 70. In sum, this omission
impeded plaintiff’s opportunity to participate in the decisionmaking process, and therefore
effectively deprived plaintiff of a FAPE, allowing him to prevail on the merits of his first claim.
See Stein, 709 F. Supp. 57, 70 (stating that “failures to include required information in an IEP
about the services to be provided [to] a disabled student” are far more significant than procedural
errors relating to failures to meet statutory deadlines); see also Leggett v. District of Columbia,
793 F.3d 59, 67–68 (D.C. Cir. 2015) (finding that even the school district’s failure to meet one of
2
Defendant does not dispute that plaintiff’s LRE page of his IEP includes hours per week of specialized
instruction and behavioral support but omits a full description of plaintiff’s LRE. See Def.’s Opp’n to Pl.’s
Mot. for Summ. J. and Def.’s Cross-Mot. for Summ. J. 4, ECF No. 13 (“There is no dispute that the IEP
DCPS developed was Plaintiff’s initial IEP. The IEP calls for 26 hours per week of specialized instruction
outside of the general education setting and 120 minutes per moth of behavioral support outside of the
general education setting.”); see also id. at 10 (arguing that the IEP was sufficient because it included “[t]he
required components of the IEP [] identified in detail in 20 U.S.C. § 1414(d)”).
3
The parties dispute whether the IDEA violations at issue are procedural or substantive in nature. For the
purposes of this Opinion, the Court will assume that the District’s failure to include a description of an LEA
and appropriate placement along a continuum in plaintiff’s IEP is a procedural violation.
18
the IEP’s statutory deadlines impacted plaintiff’s substantive rights and resulted in the denial of a
FAPE).
b. Remedies
After finding that the school district denied plaintiff a FAPE as to the first claim, the Court
will grant plaintiff his requested relief and issue an Order requiring DCPS (i) to issue a Prior
Written Notice for plaintiff to attend New Beginnings, and (ii) and to fund tuition and
transportation for plaintiff to attend New Beginnings Vocational School retroactive to January 6,
2014. In remedying a violation of the IDEA, a court may “grant such relief as [it] determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). Under this provision, “‘equitable considerations are
relevant in fashioning relief,’ and the Court enjoys ‘broad discretion’ in so doing.” Florence Cnty.
Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7, 16 (1993) (quoting Sch. Comm. of the
Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 374 (1985)). Further, “federal
courts have interpreted ‘appropriate relief’ to include compensatory education as an equitable
remedy to be granted upon finding that a child has been denied FAPE under the Act.” Fullmore v.
District of Columbia, 40 F. Supp. 3d 174, 179 (D.D.C. 2014) (citing Diatta v. District of Columbia,
319 F. Supp. 2d 57, 64 (D.D.C. 2004)). In awarding a compensatory education, courts must
conduct a “fact-specific inquiry . . . 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 ex rel. Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir.
2005).
In conducting this fact-specific assessment, the Court finds that the stated relief
appropriately provides plaintiff with a compensatory education. The Court’s remedy is sensible
given the relative success that plaintiff has achieved at New Beginnings and his stated preference
19
to continue to attend the vocational school. First, after a history of persistent truancy, Plaintiff has
developed a record of relative engagement while enrolled in New Beginning’s vocational
programs. See, e.g., Administrative Record, Ex. 1 at 300–01, Test. of Chithalina Khanchalern,
ECF No. 9-1, Dec. 5, 2014 (describing plaintiff as “motivated” and “encouraged [] to be in
attendance” while enrolled at New Beginnings). This history of relative success, along with the
fact that New Beginnings staff expressed its view that plaintiff should remain at New Beginnings,
see Administrative Record at 292–93, Ex. 4 at 140–141, ECF No. 9-4 (“It is our recommendation
due to student’s social and emotional needs . . . that [plaintiff] remain at new Beginnings
Vocational Program and all necessary accommodations including transportation and resources is
made available . . . .”), support a finding that the New Beginnings, and not Anacostia HS, was and
remains suited to meet plaintiff’s disability needs.
Next, plaintiff has stated a strong preference to stay in New Beginnings, which not in any
way dispositive, see Bd. of Educ. of Hedrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley,
458 U.S. 176, 215 (1982) (stating that the IDEA provides disabled students no more than a “basic
floor of opportunity”); T.T. v. District of Columbia, Civil No. 06-0208, 2007 WL 2111032 (D.D.C.
July 23, 2007) (“[E]ven though the student’s parent preferred a private-school placement, the
designated public-school placement was appropriate because DCPS had a general familiarity with
its programs and DCPS personnel had special education expertise requiring deference.”), is
something that schools are required to consider. See Sch. Comm. of the Town of Burlington, Mass.
v. Dep’t of Educ. of Mass., 471 U.S. 359, 368 (1985) (“In several places, the [IDEA] emphasizes
the participation of the parents in developing the child’s educational program and assessing its
effectiveness.”). Indeed, as the IDEA envisions a collaborative process, see supra page 12–13, it
is only logical the student’s previously-stated preferences play some role in determining the
20
specifics of a compensatory education. Lastly, in the Court’s view, the District’s infraction—
failing to conduct an analysis or make any mention of a student’s LRE—was relatively serious.
Therefore, the violation calls for a more robust remedy in order to place the plaintiff in a similar
position he would have been in had the violation not occurred in the first place.
c. Remaining Claims
In addition to failing to appropriately create an IEP, the District also failed to convene a
meeting or incorporate the effects of plaintiff’s recent shooting-related injuries when implementing
his IEP, representing a second instance where plaintiff was denied a FAPE. The IDEA’s
implementing regulations require that an IEP team “revise an IEP, as appropriate, to address
[among other things] the child’s anticipated needs.” 34 C.F.R. § 300.324. After plaintiff’s IEP was
drafted but before he was assigned to Anacostia HS, plaintiff was shot eight times, sustaining
serious physical and emotional injuries. See Mem. of Points [And] Authorities in Supp. of Pl.’s
Mot. for Summ. J. 23, ECF No. 10-1 (stating that DCPS issued its location of services letter to
plaintiff one day after he returned to New Beginnings following a violent shooting). The defendant
claims that after plaintiff suffered gunshot wounds, the school district was not required to “alter
[plaintiff’s] IEP services as needed, because the student has never attended [Anacostia HS] to
accept the services on his IEP.” Def’s. Opp’n to Pl.’s Mot. for Summ. J. and Def.’s Cross-Mot. for
Summ. J. 14. This argument, however, is unpersuasive. The defendant cannot relieve itself from
an independent obligation to convene an IEP meeting by arguing that plaintiff’s lack of attendance
at Anacostia HS denied the district “any opportunity . . . to assess whether and to what extent his
injuries would require changes to his IEP.” Id. at 15. His attendance at school, or lack thereof, has
no bearing on whether or not his anticipated needs had been affected by his shooting-related
injuries. Moreover, defendant’s argument runs counter to the “stay put” protections plaintiff
21
received that allow him remain at New Beginnings until this litigation is completed. See
Administrative Record 194, Order on Petitioner’s Motion Regarding “Stay-Put,” ECF No. 9-4 at
41 (“DCPS is ORDERED to fund Student’s current educational placement at New Beginnings
during the pendency of the administrative and any judicial proceeding regarding the underlying
due process complaint.”); id. (“DCPS is ORDERED to provide transportation for Student to travel
to and from New Beginnings each school day during the pendency of the administrative and any
judicial proceeding regarding the underlying due process complaint.”).
In addition, being shot eight times clearly provides reasonably grounds to conclude
plaintiff’s “anticipated needs” have been altered. 34 C.F.R. § 300.324. Indeed, according to staff
at New Beginnings, due to his gun shot wounds, plaintiff required a “wheelchair and cane,” had
difficulty with “simple writing activities and retention,” required additional professional emotional
support, and suffered “flashbacks and night terrors.” Letter from New Beginnings Staff, Oct. 22,
2014, Administrative Record at 292–93, Ex. 4 at 140–141, ECF No. 9-4. The District’s refusal to
convene a new IEP meeting to consider these changes impacted his substantive right to have these
disabilities accommodated, and therefore denied him a FAPE. See Leggett v. District of Columbia,
793 F.3d 59, 67 (D.C. Cir. 2015) (articulating the standard that procedural violations result in the
denial of a FAPE only if the failure affects a student’s substantive rights).4
In determining a remedy for this violation of the IDEA, the Court finds it is appropriate to
require DCPS to convene an IEP meeting to update the student’s IEP to incorporate new data,
including (i) present levels of performance, (ii) any goals that may need to be revised based on the
4
To be clear, with respect to this specific claim, the plaintiff simply alleges that “DCPS should and could
have waited to issue any location of services letter until it was able to hold a properly-scheduled meeting .
. . regarding the student’s needs following the shooting,” Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. for
Summ. J. and Opp’n to Def.’s Cross-Mot. for Summ. J. 21, ECF No. 15. The Court agrees, and finds this
failure affected his substantive rights and therefore violated the IDEA.
22
shooting and the resulting physical and emotional harm to the student, and (iii) discussing and
determining whether the student may need any related services based on recent incidents and its
effects. As stated, Courts have “broad discretion” in fashioning remedies for IDEA violations,
Florence Cnty. Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7, 16 (1993), and are
directed 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 ex rel. Reid v. District of
Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). In considering this standard, ordering the IEP team
to convene a meeting is sensible given that this sort of collaborative dialogue sits at the core of the
IDEA. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). Indeed, this order simply forces
the district to perform a task that it was obligated to carry out before the commencement of this
lawsuit. As such, it is tailored to remedy the specific type of harm plaintiff suffered and designed
to provide him a compensatory education, that is, put him in a situation that he would have
otherwise been in had the District originally carried out its obligations.
Lastly, because the remedies that the Court has awarded plaintiff in connection with claims
1 and 3 would also effectively remedy any of potential violations alleged in plaintiff’s four other
claims, the rest of plaintiff’s claims are now moot. See Lemon v. Geren, 514 F.3d 1312, 1315 (D.C.
Cir. 2008) (stating that a claim becomes moot if it is “impossible to grant the prevailing party
effective relief”). On the basis of these two violations alone, the Court has already ruled that it is
appropriate to require DCPS (i) to issue a Prior Written Notice for plaintiff to attend New
Beginnings, (ii) to fund tuition and transportation for plaintiff to attend New Beginnings
Vocational School retroactive to January 6, 2014; (iii) to convene an IEP meeting to discuss and
respond to plaintiff’s recently developed disability; and (iv) if needed, to administer necessary
evaluations to determine the extent and nature of plaintiff’s disabilities. As such, plaintiff has
23
received all the relief that he requested and all that would be appropriate to grant in this case.
Indeed, even if the District did violate the IDEA as to all the remaining claims, the remedies the
Court has already provided would place the plaintiff in the exact same situation had the violations
not occurred in the first place. See Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 524
(D.C. Cir. 2005) (describing the standard for compensatory education). Therefore, the remainder
of the case is moot.
To conclude, the Court will adopt the portion of the Magistrate Judge’s report and
recommendation that concludes an IEP is required to discuss a student’s LRE and appropriate
placement along the continuum of placements. Second, the Court finds that the District’s failure
to meet this requirement denied the plaintiff a FAPE and is a violation of the IDEA, as the IEP’s
defect impacted the plaintiff’s substantive rights. Third, the District’s failure to convene an IEP
meeting to discuss the effects of plaintiff’s shooting-related injuries constituted a second,
independent denial of a FAPE. Fourth, to provide the plaintiff with a compensatory education, the
Court orders DCPS (i) to issue a Prior Written Notice for plaintiff to attend New Beginnings, (ii)
to fund tuition and transportation for plaintiff to attend New Beginnings Vocational School
retroactive to January 6, 2014; (iii) to convene an IEP meeting to discuss and respond to plaintiff’s
recently developed disability needs; and (iv) if additional information is needed, administer
medical and psychological evaluations to determine the full extent of plaintiff’s special education
needs. In light of the remedies for the violations described in counts 1 and 3, the Court is not in a
position to provide plaintiff with any additional effective relief. Therefore, plaintiff’s remaining
claims are moot.
24