JALLOH et al v. DISTRICT OF COLUMBIA

Filing 20

ORDER adopting 19 Report and Recommendation of Magistrate Judge Alan Kay, DENYING 11 Plaintiffs' Motion for Summary Judgment, and GRANTING 12 Defendant's Motion for Summary Judgment. See attached order for details. Signed by Judge Ketanji Brown Jackson on 09/17/2013. (lckbj2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
DISTRICT OF COLUMBIA,
)
Defendant.
)
)
_________________________________ )
ETTA JALLOH, et al.,

Civil Action No. 12-CV-0694 (KBJ)

OPINION AND ORDER ADOPTING MAGISTRATE’S REPORT &
RECOMMENDATION AND GRANTING SUMMARY JUDGMENT
IN FAVOR OF DEFENDANT
Plaintiff Jalloh brought this action on behalf of her minor grandson, D.B.,
appealing a Hearing Officer’s dismissal of her administrative claim under the
Individuals with Disabilities Education Act (“IDEA”). Plaintiffs allege that D.B. was
denied a free and appropriate public education in the District of Columbia Public
Schools (“DCPS”), and seek reimbursement for tuition expenses incurred when D.B.
was removed from DCPS and placed in a private school. Plaintiff Jalloh first brought
an administrative complaint on November 17, 2011. The Hearing Officer held an
administrative hearing on January 25, 2011, and issued a decision denying Plaintiffs’
request on February 2, 2012. On April 30, 2012, Plaintiffs filed a complaint in this
Court (ECF No. 1). On January 10, 2013, Plaintiffs filed a motion for summary
judgment (ECF No. 11), and Defendant filed a cross-motion for summary judgment on
February 14, 2013 (ECF No. 12). The Court referred the motions to a Magistrate Judge
on May 14, 2013.
1

On August 14, 2013, Magistrate Judge Alan Kay issued a Report and
Recommendation (ECF No. 19, attached hereto as Appendix A) with respect to the
parties’ cross motions for summary judgment. The Report and Recommendation
reflected Magistrate Judge Kay’s opinion that Plaintiffs’ motion for summary judgment
should be denied, and that Defendant’s Motion for summary judgment should be
granted. Report and Recommendation at 2.
The Report and Recommendation also advised the parties that under the
provisions of Local Rule 72.3(b) of the United States District Court for the District of
Columbia, any party who objects to the Report and Recommendation must file a written
objection with the Clerk of the Court within 14 days of the party’s receipt of the Report
and Recommendation. As of this date—over a month after the Report and
Recommendation was issued—no objections have been filed. The Court has reviewed
Magistrate Judge Kay's report and hereby adopts the Report and Recommendation in its
entirety.
Accordingly, it is hereby
ORDERED that the Report and Recommendation (ECF No. 19) is ADOPTED; it is
FURTHER ORDERED that in accordance with the Report and Recommendation,
Plaintiffs’ motion for summary judgment is DENIED; and Defendant’s motion for
summary judgment is GRANTED; and it is
FURTHER ORDERED that the case is DISMISSED in its entirety.

Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
DATE: September 17, 2013
2

APPENDIX A

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 1 of 14

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ETTA JALLOH, et al.,
Plaintiffs,
v.

Civil Action No. 12-CV-694 (KBJ-AK)

DISTRICT OF COLUMBIA,
Defendant.

REPORT AND RECOMMENDATION
Minor student D.B. and his grandmother, Etta Jalloh, (“Grandmother”) 1 (collectively,
“Plaintiffs”), appealed the Hearing Officer’s dismissal of the Plaintiffs’ due process complaint
brought under the Individuals with Disabilities Education Act (IDEA). D.B. and his
Grandmother alleged that the District of Columbia Public Schools (“DCPS”) denied D.B. a free
and appropriate public education (“FAPE”) and sought reimbursement for D.B.’s private school
tuition. After a due process hearing in January 2012, Hearing Officer Peter Vaden found that
DCPS did not deny D.B. a FAPE and D.B. and his Grandmother were not entitled to tuition
reimbursement. Hearing Officer Determination (“HOD”) [9-1] at AR 23. Accordingly, Hearing
Officer Vaden dismissed the Plaintiffs’ claims and denied the requested relief of private school
funding. Id. The Plaintiffs filed a Complaint [1] in this Court appealing the Hearing Officer’s
Determination. U.S. District Court Judge Ketanji Brown Jackson referred this case to the
undersigned for full case management on May 14, 2013. Referral to Magistrate Judge [18]. The
Plaintiffs filed a Motion for Summary Judgment (“Pls.’ Mot.”) [11] and the District of Columbia
(“Defendant”) filed a Cross Motion for Summary Judgment (“Def.’s Cross-Mot.”) [12]. Also
pending before the undersigned is the Defendant’s Memorandum in Opposition to the Plaintiffs’
Motion for Summary Judgment [13], the Plaintiffs’ Memorandum in Opposition to the
1

The Grandmother is a Plaintiff in this case. For the purposes of the due process request, Hearing Officer Vaden
deemed the Grandmother “to be a ‘Parent’ in her capacity as an individual acting in the place of a biological parent
with whom the child lives.” HOD [9-1] at AR 3 n. 2 (referencing C.F.R. § 300.30(a)(4)). The undersigned likewise
acknowledges the Grandmother as the “Parent” of D.B. See 20 U.S.C. 1401(23)(C) (listing one definition of the
term “parent” for the purposes of the IDEA as “an individual acting in the place of a natural or adoptive parent
(including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally
responsible for the child’s welfare”).

-1-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 2 of 14

Defendant’s Cross Motion for Summary Judgment [14], the Plaintiffs’ Reply to the Opposition
to the Motion for Summary Judgment [15], and the Defendant’s Reply to the Opposition to the
Cross Motion for Summary Judgment [17]. The undersigned recommends denying the
Plaintiffs’ Motion for Summary Judgment and granting the Defendant’s Motion for Summary
Judgment.

BACKGROUND
D.B. is a fifteen-year-old 2 student who is eligible for special education and related
services “under the classification of a student with multiple disabilities, including specific
learning disability.” Pls.’ Mot [11] at 4. D.B. has diagnoses of Attention Deficit Hyperactivity
Disorder, Combined Type, Emotional Disturbance, and Disruptive Behavior Disorder Not
Otherwise Specified. Cognitive Evaluation [9-1] at AR 28, 32; Clinical Psychological Exam [91] at AR 47-48. Evaluators recommended that he be placed in an individualized program with a
high teacher-to-student ratio in a special school with access to the latest technology available,
including computerized specialized remedial software and word processing equipment.
Cognitive Evaluation [9-1] at AR 34-35; Education Evaluation Report [9-2] at AR 65. D.B.
resides in the District of Columbia and his grandmother, Etta Jalloh, brought this suit on his
behalf and in her own right. Compl. [1] at ¶¶ 3-4.
From 2005 to August 2011, D.B. attended Rock Creek Academy (“RCA”). HOD [9]1] at
AR 6. On July 7, 2011, Ms. Nicole Garcia, in her role as a DCPS Progress Monitor, sent the
Grandmother a Letter of Invitation (“LOI”) by regular mail and certified mail informing her of
an IEP Team meeting scheduled for July 28, 2011. Records of Communications in EasyIEP
Program (“EasyIEP”) [9-2] at AR 133; Testimony of Nicole Garcia [10-1] at AR 659. The LOI
sent on July 7, 2011, noted that a representative from the Spectrum program at Coolidge High
School (“Spectrum”) was expected to attend the IEP meeting on July 28, 2011. LOI [9-2] at AR
97. Ms. Garcia also attempted to reach the Grandmother by phone to inform her of the date and
time of the IEP meeting but was unable to reach her or leave her a message. EasyIEP [9-3] at
AR 132. On July 27, 2011, a DCPS representative went to Plaintiffs’ home and left a copy of the
LOI at Plaintiffs’ door after finding that Plaintiffs were not at home. Id. at AR 134. On July 28,
2011, Ms. Garcia called the Grandmother to see if she was able to attend the meeting scheduled
2

D.B. was age fifteen as of 1/10/13 when Plaintiffs’ Motion for Summary Judgment was filed.

-2-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 3 of 14

for that day but the Grandmother did not answer. Id. at AR 135. Later that day, DCPS held the
IEP Team meeting without the Grandmother present. IEP [9-3] at AR 104. RCA representatives
refused to participate in the July 28, 2011, IEP meeting. Testimony of Nicole Garcia [10-1] at
AR 662. RCA had objected to DCPS holding LRE meetings at the DCPS central office
numerous times, because it was too far away for RCA staff members to attend and that telephone
participation had proven ineffective. E-mail from Teri Talpsep [9-2] at AR 92; E-mail from
Giselle Cohen [9-2] at AR 93. Furthermore, RCA declined to attend the IEP meeting because
the Grandmother was absent. Testimony of Nicole Garcia [10-1] at AR 706.
The IEP developed at the meeting established D.B.’s placement in a full-time special
education setting with 25.5 hours per week of specialized instruction, 1 hour per week of
behavioral support services, and 1 hour per week of speech and language services. IEP [9-3] at
AR 110. This IEP was the same as D.B.’s previous IEP in the amount and type of services.
Testimony of Nicole Garcia [10-1] at AR 684. Ms. Garcia, DCPS representative Jade Bryant,
and a Spectrum representative attended the IEP meeting in person while D.B.’s special education
teacher, a DCPS case manager, a DCPS psychologist, and a speech language pathologist
participated by phone. IEP [9-3] at AR 104. At the IEP Team meeting, the Team decided that
D.B. should attend the Spectrum program for the 2011-2012 school year. Meeting Notes [9-3] at
AR 114. RCA closed permanently on August 8, 2011. HOD [9-1] at AR 17.
Spectrum contracted with DCPS to provide special education services for students who
have or are at risk for Emotional Disturbance and who receive special education services.
Spectrum Co-Location Classrooms Brochure [9-7] at AR 317. Spectrum classes included direct
instruction from teachers as well as instruction through a computer program, referred to as the
“A+ Program.” Testimony of Nicole Garcia [10-1] at AR 735. Each student had a personal
workstation with a computer and other learning materials and used technology to follow a
personal academic path and remain motivated. Spectrum Co-Location Classrooms Brochure [97] at AR 317. The A+ Program allowed students to earn Carnegie credits required for
graduation. Testimony of Nicole Garcia [10-1] at AR 665.
When D.B. attended Spectrum, he was one of six students in his classroom with four
teachers and a behavior specialist. Id. at AR 488-89. At Spectrum, students remained in the
same classroom for the full school day with teacher rotating for different subjects. Id. at AR 497.
Spectrum gave students in special education the option to participate in extra-curricular activities
-3-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 4 of 14

with general education students from Coolidge High School. Testimony of Nicole Garcia [10-1]
at AR 684. Although the students in special education did not have lunch with the students in
general education, all students entered the school through the same entrance with metal
detectors. Testimony of Nicole Garcia [10-1] at AR 683; Testimony of Cordester Brown [10-1]
at AR 441-442. Spectrum also utilized a leveled behavior system, through which special
education students who exhibit good classroom behavior graduate from one level to the next and
are eventually transitioned into the general education high school after surpassing level five.
Testimony of Chithalina Khanchalern [10-1] at AR 529. A student who reaches level five may
be retained in full-time special education classes if the IEP team decides that the student is not
yet ready to transition into a general education setting. Testimony of Nicole Garcia [10-1] at AR
at 729.
The Grandmother received a Prior Written Notice (“PWN”) stating that Spectrum could
implement D.B.’s IEP and provide him with a FAPE. PWN [9-3] at AR 102. A DCPS
representative called the Grandmother and left a voicemail message on August 15, 2011,
notifying her of an open house being held at Spectrum. IEP [9-3] at AR 136. D.B’s mother,
Cordester Brown (“Mother”), called DCPS two days later, stating that she would attend the open
house on behalf of Plaintiffs. EasyIEP [9-3] at AR 137. On August 18, 2011, Ms. Garcia spoke
with the Grandmother and the Mother about their concerns with D.B.’s placement at Spectrum,
including metro bus access and the school schedule. EasyIEP [9-3] at AR 138. The Mother also
expressed concern about the location of the classrooms and D.B.’s interaction with general
education students. Testimony of Cordester Brown [10-1] at AR 439-40. The Mother
accompanied D.B. to Spectrum on the first day of school. Id. at AR 441-442. The Grandmother
and the Mother unilaterally removed D.B. from Spectrum after the first day of school and the
Mother enrolled him at a private school, New Beginning’s Vocational Program (“New
Beginnings”). Id. at 453; Testimony of Ella Jollah [10-1] at AR 401. The Grandmother did not
inform DCPS of the Mother’s unilateral placement of D.B. until October 11, 2012. 3 Fax [9-3]
AR 148-152 [9-3].
The Grandmother filed an administrative due process complaint on November 17, 2011,
alleging that DCPS denied D.B. a FAPE by: (1) failing to hold a LRE meeting at a mutually
3

The date of the letter is August 22, 2011, see AR 150, but both parties agree that it was not transmitted to DCPS
until October 11, 2011. See date of Fax [9-3] at AR 149; DCPS Letter [9-3] at AR 148; Pls.’ Mot. [11] at 5; Def.’s
Opp. [12] at 7.

-4-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 5 of 14

agreeable time and location, (2) failing to involve the Grandmother in the placement decision
and holding an IEP meeting with an inadequate team, (3) failing to issue an adequate PWN, and
(4) failing to provide D.B. with an appropriate placement. Pet’rs’ First Am. Due Process Compl.
[9-4] at AR 170-77; 180. The Grandmother requested placement and funding for D.B. at New
Beginnings from October 11, 2011, through the end of the 2011-2012 school year. Id. at 179.
Hearing Officer Vaden held an administrative hearing on January 25, 2012. HOD [9-1] at AR 3.
He issued his decision on February 2, 2012, finding that DCPS failed to comply with the IDEA’s
procedural requirements without substantively denying D.B. a FAPE, that the PWN issued by
DCPS was adequate and did not violate Plaintiffs’ IDEA rights, and that Spectrum was able to
implement D.B.’s IEP and was therefore an appropriate placement for D.B. HOD [9-1] at AR
14-22. Hearing Officer Vaden denied the Grandmother tuition reimbursement because D.B.
received a FAPE and because Spectrum was an appropriate placement for D.B. Id. at AR 22-23.
On April 30, 2012, Plaintiffs filed a Complaint [1] in this Court seeking a reversal of the
HOD. Plaintiffs filed a Motion for Summary Judgment [11] on January 10, 2013, arguing that
Hearing Officer Vaden improperly ruled that DCPS did not substantively deny D.B. a FAPE
with the IEP meeting, that DCPS had provided the Grandmother with a legally sufficient PWN,
and that DCPS had provided D.B. with an appropriate placement at Spectrum. Pls.’ Mot [11] at
7-15. Furthermore, Plaintiffs stated that Hearing Officer Vaden incorrectly denied tuition
reimbursement. Id at 15-16. DCPS filed a Cross Motion for Summary Judgment [12] on
February 14, 2013, arguing that Hearing Officer Vaden correctly denied tuition reimbursement
because DCPS’s procedural violation of IDEA did not substantively prevent DCPS from
providing D.B. with a FAPE. Def.’s Cross-Mot. [12] at 14-16. Additionally, D.B.’s Mother had
acted unreasonably when she unilaterally placed D.B. at New Beginnings, that Spectrum was an
appropriate placement for D.B., and that the PWN to the Grandmother was both unnecessary and
sufficient under the IDEA. Def.’s Cross-Mot. [12] at 16-24.

LEGAL STANDARD
I.

Individuals with Disabilities Education Act: Requirements and Review
Congress passed the Individuals with Disabilities Education Act and the Individuals with

Disabilities Education Improvement Act to “ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes special education and
-5-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 6 of 14

related services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). To ensure
that students with disabilities received a FAPE, each student receives an annual IEP tailored to
their personal skills and needs that outlines the appropriate educational services they will receive.
20 U.S.C. § 1414(d)(1)(A); Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359,
368 (1985). Relevant individuals collaborate as a team to design the IEP, including the child’s
parents, at least one regular education teacher, at least one special education teacher, a
representative of the local education agency, the child, if appropriate, and any other individuals
with special knowledge or expertise. 20 U.S.C. § 1414(d)(1)(B). Under the IDEA, the school
district must annually review and revise the student’s IEP to ensure that the student is
progressing. 20 U.S.C. § 1414(d)(4)(A).
If the parents disagree with their child’s educational evaluation or placement, they may
request an impartial administrative due process hearing before an impartial Hearing Officer. 20
U.S.C. § 1415(f)(1)(a). If the parents remain dissatisfied with the outcome of the administrative
hearing, they may appeal to the local education agency. 20 U.S.C. § 1415(g). If still dissatisfied,
they may challenge the HOD through a civil action in state or federal district court. 20 U.S.C. §
1415(i)(2). While challenging the HOD, parents may unilaterally decide to send their child to a
private school without the consent of local school officials, but they “do so at their own financial
risk.” Burlington, 471 U.S. at 374; see also Florence Cnty. Sch. Dist. Four v. Carter By &
Through Carter, 510 U.S. 7, 15 (1993). The reviewing court may grant tuition reimbursement if:
“(1) the public placement violated the IDEA and (2) the private school placement was proper
under the Act.” Schoenbach v. D.C., 309 F. Supp. 2d 71, 77 (D.D.C. 2004) (internal quotation
marks omitted); see also Burlington, 471 U.S. at 369-70.
II.

Review of Hearing Officer Determination
The IDEA provides a statutory right to a civil action in state or federal court for “any

party aggrieved by the findings and decisions” of an administrative hearing. 20 U.S.C. §
1415(i)(2)(A). 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 the court determines is
appropriate.” 20 U.S.C. §1415(i)(2)(C). The challenging party bears the burden of persuasion
and must demonstrate by a preponderance of the evidence that the Hearing Officer erred. Reid
ex rel Reid v. D.C., 401 F.3d 516, 521 (D.C. Cir. 2005). While the court must independently
-6-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 7 of 14

review the evidence presented, “it must also give ‘due weight’ to the administrative proceedings
and afford some deference to the expertise of the hearing officer and school officials responsible
for the child’s education.” Lyons v. Smith, 829 F. Supp. 414, 418 (D.D.C. 1993). However, if a
Hearing Officer’s decision is “without reasoned and specific findings,” it deserves little
deference. Reid, 401 F.3d at 521. A court may not upset a hearing officer’s determination
without explaining its basis for doing so. Hawkins ex rel D.C. v. D.C., 539 F. Supp. 2d 108, 112
(D.D.C. 2008).
III.

Motion for Summary Judgment Standard
Under Federal Rules of Civil Procedure 56, a grant of summary judgment is appropriate

when the record shows no genuine issue of material fact and the moving party deserves judgment
as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The moving party must inform the
court of the foundation for its motion and identify segments of the record demonstrating an
absence of genuine dispute of material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When ruling on a motion for summary judgment, the court must draw all inferences in a light
most favorable to the non-moving party. McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir.
2006).

DISCUSSION
I.

The Hearing Officer correctly concluded that DCPS provided D.B. with a FAPE
The undersigned recommends upholding Hearing Officer Vaden’s determination. He

correctly concluded that any procedural violations that may have occurred did not affect D.B.’s
substantive rights, the PWN was proper, and D.B.’s placement at Spectrum could adequately
implement his IEP.
a. IEP Meeting Participation
Hearing Officer Vaden correctly ruled that DCPS’ failure to ensure the Grandmother’s
participation in the July 28, 2011, IEP meeting was not a substantive violation amounting to a
denial of FAPE. Local educational agencies “must take all steps to ensure that one or both of the
parents of a child with a disability are present at each IEP team meeting or are afforded the
opportunity to participate.” 34 C.F.R. § 300.322(a). Agencies must notify parents of the
impending meeting with sufficient time for the parents to make necessary arrangements to attend
-7-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 8 of 14

the meeting and they must schedule the meeting at a mutually convenient time and place. Id. An
IEP Team meeting may only be held without parents present if the public agency is unable to
convince the parents to attend and if the agency kept a record of its attempts to arrange and agree
on a mutually convenient time and place. 34 C.F.R. § 300.322(d). Acceptable records to
document communication attempts include: “(1) Detailed records of telephone calls made or
attempted and the results of those calls; (2) Copies of correspondence sent to the parents and any
responses received; and (3) Detailed records of visits made to the parent’s home or place of
employment and the results of those visits.” Id. Even if the school district procedurally violates
the IDEA, this only results in a denial of FAPE if the procedural inadequacies in question “(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). A student is denied a FAPE if procedural
violations affect his or her substantive rights as well. See Roland M. v. Concord Sch. Comm.,
910 F.2d 983, 994 (1st Cir. 1990) (en banc)) (“[P]rocedural flaws do not automatically render an
IEP legally defective. Before an IEP is set aside, 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.”) (internal citations omitted).
Although DCPS mailed the Grandmother a LOI through regular and certified mail, called
her during two separate weeks, and visited her home in person, Hearing Officer Vaden found
that DCPS committed procedural violations because DCPS “was not diligent in ensuring [the
Grandmother] would attend” the IEP meeting and did not attempt to schedule the meeting at a
mutually agreeable time and place. 4 HOD [9-1] at AR 15. Despite this procedural violation,
Hearing Officer Vaden correctly concluded that DCPS did not substantively deny D.B. a FAPE.
Hearing Officer Vaden considered the fact that the IEP Team chose to maintain the same level of
services, which had proven successful in the past, highlighted the Grandmother’s failure to claim
that she would have advocated for different or additional services, and pointed out that the
4

The undersigned disagrees with Hearing Officer Vaden and finds that communication via regular and certified
mail, telephone, and in-person visit demonstrate a sufficient effort by DCPS to seek the Grandmother’s attendance.
However, the undersigned recommends affirming Hearing Officer Vaden ultimate conclusion that the Defendant’s
procedural violations did not amount to a denial of FAPE because he correctly concluded that D.B. did not
experience a substantive IDEA violation.

-8-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 9 of 14

Grandmother’s presence could not have affected D.B.’s continued enrollment at D.B.’s former
school because D.B.’s former school was set to close permanently. Id. at AR 16-17.
Given that the amount and quality of special education services did not change and the
Grandmother and Mother failed to raise any substantive concerns about the IEP, the undersigned
recommends affirming Hearing Officer Vaden’s conclusion that DCPS offered D.B. a FAPE and
did not substantively violate the IDEA. D.B.’s IEP was not changed at the July 28, 2011, IEP
meeting in terms of the amount and type of services. Testimony of Nicole Garcia [10-1] at AR
684. The IEP team decided to maintain the level of services based on D.B.’s previous IEP, his
educational progress according to RCA, classroom observation notes, attendance sheets, and
prior multi-disciplinary team input. PWN [9-3] at AR 102. The only change made on July 28,
2011, was the school that would be providing the services because RCA was permanently
closing. HOD [9-1] at AR 17. On August 18, 2011, the Grandmother and the Mother discussed
their concerns about Spectrum with Ms. Garcia, specifically metro bus access and the school
schedule. EasyIEP [9-3] at AR at 138. The Mother testified that she also expressed concern
about the location of the classrooms and D.B.’s interaction with general education students.
Testimony of Cordester Brown [10-1] at AR 439-40. Given that D.B.’s IEP did not change and
the Grandmother and Mother did not raise concerns about the substance of the IEP itself, the
undersigned recommends affirming the Hearing Officer’s conclusion that DCPS offered D.B. a
FAPE.
b. Proper Prior Written Notice
DCPS issued proper PWN after the July 28, 2011, IEP Team meeting. The IDEA
statutorily requires PWN as a procedural safeguards for parents “whenever the local educational
agency…proposes to initiate or change; or…refuses to initiate or change, the identification,
evaluation, or educational placement of the child, or the provision of a free appropriate public
education to the child.” 20 U.S.C. § 1415(b)(3). PWN must include:
(A) a description of the action proposed or refused by the agency;
(B) an explanation of why the agency proposes or refuses to take the action and a
description of each evaluation procedure, assessment, record, or report the agency
used as a basis for the proposed or refused action;
(C) a statement that the parents of a child with a disability have protection under
the procedural safeguards of this subchapter and, if this notice is not an initial
referral for evaluation, the means by which a copy of a description of the
procedural safeguards can be obtained;

-9-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 10 of 14

(D) sources for parents to contact to obtain assistance in understanding the
provisions of this subchapter;
(E) a description of other options considered by the IEP Team and the reason why
those options were rejected; and
(F) a description of the factors that are relevant to the agency’s proposal or
refusal.
20 U.S.C. § 1415(c)(1). The intent of PWN is to “provide sufficient information to protect the
parents’ rights under the Act. It should enable the parents to make an informed decision whether
to challenge DCPS's determination and to prepare for meaningful participation in a due process
hearing on their challenge.” Kroot v. D.C., 800 F. Supp. 976, 982 (D.D.C. 1992). The PWN is a
general notification, giving parents basic information about DCPS’ decision and the means of
requesting more information and challenging the decision at a due process hearing. Id. This can
be contrasted with the due process hearing at which DCPS must go into much greater detail and
provide a comprehensive explanation of how it reached each of its conclusions. Id. When a
PWN is required, it legally only needs to contain a general statement of the decisions made, the
information relied upon during the decision making process, and the avenues available to the
parents to request more information about or challenge the decision. Id.
Hearing Officer Vaden correctly found that the PWN in this case was proper. A PWN
was required because DCPS transferred D.B. from his original school, RCA, to Spectrum.
Especially considering her absence at the July 28, 2011, IEP Team meeting, the Grandmother
needed prior notice of this change prior to the beginning of the school year on August 22, 2011.
The July 28, 2011, PWN informed the Grandmother of the school change, adding that Spectrum
would be able to implement D.B.’s IEP and provide him with a FAPE. PWN [9-3] at AR 102.
The PWN explained that the placement decision was made based on D.B.’s prior IEP,
evaluations, classroom observations, progress reports, and D.B’s attendance. Id. Additionally,
the PWN listed other options for placements for D.B. that were considered and rejected,
including a general education setting and a combination general/special education setting. Id. at
103. The PWN also informed the Grandmother of her procedural rights under the IDEA and
provided contact information for Nicole Garcia, directing her to contact Ms. Garcia with any
questions about the PWN. Id. Accordingly, the PWN met the requirements established by 20
U.S.C. § 1415(c)(1) and the undersigned recommends upholding Hearing Officer Vaden’s
conclusion that the PWN was proper.

-10-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 11 of 14

c. DCPS provided D.B. with an appropriate placement
Hearing Officer Vaden correctly ruled that Spectrum was an appropriate placement for
D.B. The Plaintiffs argued that D.B.’s transfer from RCA to Spectrum was inappropriate for
D.B.’s unique needs, emphasizing that Spectrum provided more interaction with non-disabled
peers than appropriate for D.B., offered a leveled behavioral policy that aimed to ultimately
incorporate special education students into a general education setting, placed students in a single
classroom all day each day of the school year, and overemphasized computer-based learning.
Pls.’ Mot. [11] at 12. Under the IDEA, DCPS is obligated to devise IEPs for each child with
disabilities, “mapping out specific educational goals and requirements in light of the child’s
disabilities and matching the child with a school capable of fulfilling those needs.” See Jenkins
v. Squillacote, 935 F.2d 303, 304-305 (D.C. Cir. 1991). The appropriateness of the location of
services depends upon “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
school, the placement’s cost, and the extent to which the placement represents the least
restrictive environment.” See N.G. v. D.C., 556 F. Supp. 2d 11, 37 (D.D.C. 2008) (citing
Branham v. D.C., 427 F.3d 7, 12 (D.C. Cir. 2005)). Hearing Officer Vaden correctly ruled that,
according to these guidelines, Spectrum was an appropriate school to implement D.B.’s
placement.
Hearing Officer Vaden was correct in concluding that Spectrum was able to implement
D.B.’s IEP. D.B.’s July 28, 2011, IEP required D.B. to be in a full-time special education
placement outside of general education. IEP [9-3] at AR 109. The IEP was to provide 25.5
hours per week of specialized instruction, 1 hour per week of behavioral support services, and 1
hour per week of speech and language services, with all services to be provided outside the
general education setting. Id. at AR 110. The IEP included goals in mathematics, reading,
written expression, speech and language, and emotional, social and behavioral development. Id.
at AR 106-108. The IEP also included transportation services for D.B. Id. at AR 111. D.B.
testified that he shared a classroom at Spectrum with five other students and four teachers.
Testimony of D.B [10-1] at AR 488-89. Chithalina Khanchalern, D.B.’s Educational Advocate,
also testified that D.B.’s class at Spectrum consisted of four teachers, including one who was
certified in special education and one who was a behavioral specialist. Testimony of Chithalina
Khanchalern [10-1] at AR 524-25. According to Ms. Garcia, in her new role as DCPS’ Co-11-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 12 of 14

Location Classroom Coordinator, D.B.’s classroom at Spectrum included a certified teacher, an
instructional aide and a behavioral staff member. Testimony of Nicole Garcia [10-1] at AR 679.
Ms. Garcia added that a social worker was available at Spectrum, that D.B. could receive his
speech and language services at Spectrum, and that D.B. would have received direct instruction
from a teacher in addition to participating in a computer-based learning program. Id. at 681,
664-65. Ms. Garcia delivered uncontested testimony that Spectrum was fully able to implement
D.B.’s IEP. Def.’s Cross-Mot. [12] at 22. Lastly, while the Plaintiffs also expressed concern
about Spectrum’s use of computers as educational tools, several evaluators recommended that
D.B. use computers in his education. See Clinical Psychological Exam [9-1] at AR 48 (D.B.
should use “a variety of computer and video games” in order to “improve attention and
concentration”); Education Evaluation Report [9-2] at AR 65 (D.B.’s “ability in the basic skills
will likely improve best with the introduction of and training with computerized specialized
remedial software and word-processing equipment.”) Based on this evidence, Hearing Officer
Vaden correctly determined that Spectrum was able to implement D.B.’s IEP.
II.

Given that DCPS did not deny a FAPE to D.B., the Plaintiff is not entitled to
tuition reimbursement.
D.B. and his Grandmother have failed to satisfy the threshold question that DCPS denied

D.B. a FAPE, therefore the undersigned finds that they are not entitled to tuition reimbursement.
Statutorily, local education agencies are not required to fund a private school placement if the
agency “made a free appropriate public education available to the child and the parents elected to
place the child in such private school or facility.” 20 U.S.C. 1412 (a)(10)(C)(i). Under the
IDEA, “[p]arents who unilaterally decide to place their disabled child in a private school without
the consent of local authorities…do so at their own risk.” Anderson v. D.C., 606 F. Supp. 2d 86,
90 (D.D.C. 2009), citing Carter, 510 U.S. at 15 (internal quotations omitted). The Supreme
Court has found that “[i]f the courts ultimately determine that the IEP proposed by the school
officials was appropriate, the parents would be barred from obtaining reimbursement.”
Burlington, 471 U.S. at 374. While the statute provides funding for private schooling in limited
circumstances where a FAPE is denied, this is intentionally narrow because “[i]f parents could
be reimbursed for placement at a private school of their choice, they would have every incentive
to proceeding without agency approval and later seek retroactive relief.” Fagan v. D.C., 817 F.
Supp. 161, 166 (D.D.C. 1993). Even if a FAPE was denied, parents may be denied
-12-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 13 of 14

reimbursement if they fail to inform the public agency of their intent to enroll their child in a
private school at the public expense or “upon a judicial finding of unreasonableness with respect
to actions taken by the parents.” See Schoenbach, 309 F. Supp. 2d at 84-85 (citing 20 U.S.C. §
1412(a)(10)(C)(iii)(III)); 34 C.F.R. § 300.148(d). Reimbursement may be reduced or denied if,
at least ten business days prior to the removal of the child from the public school, the parents did
not give written notice to the public agency that they were rejecting the placement proposed by
the agency, including stating their concerns and their intent to enroll their child in a private
school at public expense. 34 C.F.R. § 300.148(d).
Given that DCPS provided D.B. with an adequate IEP, provided PWN, and provided him
an appropriate placement, the undersigned finds that D.B. and his Grandmother are not entitled
to tuition reimbursement. Also, as Hearing Officer Vaden correctly noted, even if DCPS had
denied D.B. a FAPE, the Plaintiff is not entitled to reimbursement because D.B.’s Mother was
unjustified in unilaterally removing her son from Spectrum and placing him in New Beginnings
and the Grandmother did not notify DCPS of his withdrawal within the required time frame.
Therefore, the undersigned recommends that Plaintiff be denied tuition reimbursement.

RECOMMENDATION
The undersigned recommends upholding the Hearing Officer’s Determination. While
DCPS may have procedurally violated the IDEA with its notice of the IEP meeting to the
Grandmother, it did not substantively violate the IDEA. Additionally, the PWN issued by DCPS
before the 2011-2012 school year began was adequate and Spectrum was an appropriate
placement for D.B. that could implement his IEP. Accordingly, the Plaintiffs are not entitled to
reimbursement. The undersigned recommends that the Plaintiffs’ Motion for Summary
Judgment be denied and DCPS’s Motion for Summary Judgment be granted.

REVIEW BY THE DISTRICT COURT
The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the
United States District Court for the District of Columbia, any party who objects to the Report
and Recommendation must file a written objection thereto with the Clerk of this Court within 14
days of the party’s receipt of this Report and Recommendation. The written objections must
specifically identify the portion of the report and/or recommendation to which objection is made,
-13-

Case 1:12-cv-00694-KBJ-AK Document 19 Filed 08/14/13 Page 14 of 14

and the basis for such objections. The parties are further advised that failure to file timely
objections to the findings and recommendations set forth in this report may waive their right of
appeal from an order of the District Court that adopts such findings and recommendation. See
Thomas v. Arn, 474 U.S. 140 (1985).

DATE: __8/14/2013______

__________/s/________________________
ALAN KAY
UNITED STATES MAGISTRATE JUDGE

-14-