BROWN v. DISTRICT OF COLUMBIA
Filing
31
MEMORANDUM OPINION granting 18 Defendant's Motion for Summary Judgment and denying 20 Plaintiff's Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 09/04/2015. (lcrc2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
K.B., a minor, by his parent and next friend,
SYLVIA BROWN,
Plaintiffs,
v.
DISTRICT OF COLUMBIA,
Defendant.
:
:
:
:
:
:
:
:
:
:
Civil Action No.:
13-0649 (RC)
Re Document Nos.:
18, 20
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT & DENYING PLAINTIFF’S
CROSS-MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff K.B. is a young man with a learning disability who received special education
and related services pursuant the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400
et seq. (“IDEA”). K.B. began attending the Monroe School in the District of Columbia as a
ninth grade student in November 2010. In May 2012, the District of Columbia Public Schools
(“the District” or “DCPS”) determined that K.B. should transfer to High Road Academy for the
2012-2013 school year so that he could receive appropriate instruction from dually certified
teachers. K.B.’s mother, Ms. Sylvia Brown, filed a due process complaint alleging that the
District violated the IDEA and denied K.B. a free and appropriate public education (“FAPE”) by
unilaterally changing his placement to High Road, a school that she believed would be unable to
implement K.B.’s individualized educational program (“IEP”). After a due process hearing, the
hearing officer determined: (1) that the move from Monroe to High Road did not constitute a
change in educational placement, and (2) that High Road could appropriately implement K.B.’s
IEP, so DCPS did not deny K.B. a FAPE. K.B., through his mother, argues that the hearing
officer erred by ignoring controlling law and relevant facts and that DCPS should be ordered to
pay K.B.’s outstanding tuition at Monroe. Now before the Court are the parties’ cross-motions
for summary judgment. As explained below, because Ms. Brown failed to show that the hearing
officer erred, the Court will grant the District’s motion for summary judgment and will deny
Plaintiff’s cross-motion for summary judgment.
II. BACKGROUND
A. Statutory Framework
Congress enacted the IDEA “to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further education, employment, and
independent living.” Henry v. District of Columbia, 750 F. Supp. 2d 94, 96 (D.D.C. 2010)
(quoting 20 U.S.C. § 1400(d)(1)(A)). “A free appropriate public education entitles ‘each child
with a disability’ to an ‘individualized education program’ that is tailored to meet his or her
unique needs.” Id. (quoting 20 U.S.C. §§ 1414(d)(1)(A)-(2)(A)).
The individualized education program (“IEP”) is the “primary vehicle” for implementing
the IDEA. Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 830 (D.C. Cir. 2006)
(citation omitted). The IEP is “[p]repared at meetings between a representative of the local
school district, the child’s teacher, the parents or guardians, and, whenever appropriate, the
disabled child.” Id. (citation omitted). It “sets out the child’s present educational performance,
establishes annual and short-term objectives for improvements in that performance, and
describes the specially designed instruction and services that will enable the child to meet those
objectives.” Id. (citations omitted).
2
When the parents of a student with a disability are dissatisfied with a school district or
agency’s “identification, evaluation, or educational placement of the child, or the provision of a
free appropriate public education to such child,” 20 U.S.C. § 1415(b)(6), the IDEA entitles them
to present their arguments at an “impartial due process hearing.” See id. § 1415(f). During the
pendency of such proceedings “unless the State or local educational agency and the parents
otherwise agree, the child shall remain in the then-current educational placement of the child.”
Id. § 1415(j). This so-called stay-put provision of the IDEA was intended to prevent school
officials from excluding disabled children from regular public schools over parental objection
during the course of review proceedings. See Honig v. Doe, 484 U.S. 305, 327 (1988).
B. K.B.’s Education
K.B. is a student with a disability classification of Specific Learning Disability. Pl.’s
Statement of Material Facts (‘‘Pl.’s SOF’’) ¶ 5, ECF No. 19-3. He also struggles with anxiety.
Id. ¶ 7; A.R. 314–17, ECF No. 6–8. According to Ms. Brown, K.B. has changed schools on a
number of occasions since beginning his education, and his anxiety went largely unaddressed by
schools that did not have the time to talk to him about his concerns. A.R. 285, 341.
In November 2010, K.B. began attending ninth grade at the Monroe School, a nonpublic
day school for students with learning disabilities. Pl.’s SOF ¶ 12. K.B. initially had some
difficulties with the transition, which his mother attributes to the fact that K.B. had just
transferred from an “overbearing” school environment. A.R. 309. When he arrived at Monroe,
K.B. had a “limited tolerance for frustration and a less than average ability to persevere in the
face of obstacles,” and he was “at risk for recurrent episodes of overt anxiety, tension,
nervousness, and irritability.” Pl.’s SOF ¶ 10 (quoting A.R. 6). As K.B.’s anxiety rose, he
would begin to sweat, which in turn further increased his anxiety as he worried about the odor.
3
A.R. 389–90. He required almost daily counseling in response to critical incidents and
emotional trauma, and he had problems concentrating on assignments at school. A.R. 388–89.
On several occasions, K.B. shut down, putting his head on his desk in class and saying he could
not do the work. A.R. 403. In addition, he did not interact with the other students or participate
in school activities when he first arrived at Monroe. A.R. 413.
With time and counseling, however, K.B.’s behavior stabilized and his emotional issues
decreased. A.R. 388–89. He learned to manage his glandular condition and developed increased
self-esteem. A.R. 390. His academic performance improved to the extent that K.B. began to
approach or even exceed grade equivalency in some subjects, and he no longer required daily
counseling. A.R. 390, 399. In the view of Dr. Carolyn Gravely-Moss, Monroe’s counseling
psychologist, K.B. made significant progress at Monroe and has learned to be his own selfadvocate. A.R. 405.
In January 2012, when K.B. was in the tenth grade, DCPS notified K.B. that they
intended to transfer him from Monroe to a computer-based program located within Spingarn, a
general education high school. Pl.’s SOF ¶ 15. K.B.’s mother filed a due process complaint to
challenge the transfer, and she ultimately prevailed. Id. ¶¶ 16–17. On April 16, 2012, the
hearing officer found that K.B.’s IEP called for direct instruction throughout the day, and that
because he would lose that direct instruction if transferred from Monroe to what was primarily a
computer-based program, the “decision to change the Student’s location of services was actually
a change in placement.” A.R. 73–74. The hearing officer also found that the computer-based
program was designed for students with emotional disturbances, which K.B.—who had been
bullied in the past and was socially vulnerable—did not have. A.R. 74. The hearing officer
concluded that the change in placement constituted a denial of a FAPE, and he ordered DCPS to
4
fund K.B.’s attendance at Monroe for the remainder of the 2011-2012 school year and to
convene an IEP meeting within 20 school days from the issuance of the decision. A.R. 74–75.
K.B.’s IEP meeting was subsequently held on May 21, 2012, for the purpose of reviewing his
IEP and discussing the school that K.B. would attend for the 2012-2013 school year. A.R. 101–
02.
At the May 21 hearing, the IEP team—including Ms. Brown—reviewed K.B.’s progress
on his IEP goals, his social and emotional functioning, and his strengths and weaknesses. Id.
Dr. Gavely-Moss, explained that K.B.’s weaknesses included emotional instability, a lack of
trust, anxiety, and anxiety-related perspiration problems. A.R. 105–06. She further explained
that despite some initial regression in response to instability in his living situation, K.B. was
getting to the point where he should be in terms of his social and emotional development. A.R.
106. After some discussion, the IEP team agreed upon the quantity and nature of K.B.’s
instruction and support services; he was to receive 25.5 hours of specialized instruction, 60
minutes of speech-language pathology services, and 60 minutes of behavioral support services
each week. 1 A.R. at 103, 106, 301, 451–52. The IEP team also agreed that all of K.B.’s
specialized instruction and support services were to be delivered outside of the general education
setting. A.R. at 90.
The IEP team then considered the school that K.B. would attend for the upcoming school
year. The DCPS compliance case manager stated that DCPS planned to change the location of
K.B.’s services to High Road. A.R. 103. She explained that DCPS had determined that Monroe
1
Although both parties agreed at the May 21, 2012, IEP meeting that K.B.’s behavioral
support services should be increased from 30 to 60 minutes each week, and that his specialized
instruction time should be increased from 25 to 25.5 hours weekly, those changes are not
reflected in the May 21, 2012, IEP. Cf. A.R. 90 with A.R. 103, 301, 451–52.
5
could not implement K.B.’s IEP because it lacked teachers that were dually certified in special
education and a content area. A.R. 103, 107. High Road, in contrast, had dually certified
teachers and could implement K.B.’s IEP. A.R. 107. K.B.’s mother disagreed with the proposed
transfer, saying that K.B. had already changed schools too many times in the past and that
change made K.B. anxious. A.R. 103, 107.
At the conclusion of the meeting, the DCPS progress monitor issued a prior written
notice indicating the proposed change in location of services from Monroe to High Road for the
2012-2013 school year. A.R. 80. The notice explained that Monroe could not implement K.B.’s
IEP and provide the necessary specialized instruction as the school lacked certified special
education teachers. A.R. 80.
C. The 2013 Due Process Hearing
K.G.’s mother initiated the present action when she filed a due process complaint on
December 3, 2012,2 seeking to prevent the transfer of K.B. to High Road. A.R. 130–47. As is
relevant here, K.B.’s mother alleged that on May 21, 2012, DCPS denied K.B. a FAPE by
changing his 2012-2013 placement from Monroe to High Road, which could not meet K.B.’s
needs. 3 A.R. 137–41.
2
Ms. Brown first filed a due process complaint on an unspecified date “over the summer
in 2012,” but because she could not take off work to attend a due process hearing at the time, she
asked that the complaint be dismissed without prejudice and re-filed in December 2012.
Statement of Blaeuer at ¶¶ 3–5, Pl.’s Ex. A, ECF No. 20-4.
3
The due process complaint included a number of other allegations that were withdrawn
at the beginning of the due process hearing on January 15, 2013. See A.R. 4, 5 n.5.
Additionally, the complaint alleged that DCPS denied K.B.’s mother her right to participate in
the decisionmaking process by unilaterally predetermining K.B.’s 2012-2013 placement. A.R. 5.
The hearing officer found that DCPS had satisfied the IDEA’s requirements for parental input in
the May 21, 2012 meeting and that K.B.’s mother failed to prove that she had been denied an
opportunity to participate. A.R. 21. Ms. Brown has not appealed this finding.
6
The ensuing due process hearing occurred on January 15 and January 28, 2013. A.R. 4.
The hearing officer heard testimony from five witnesses and admitted into evidence a total of
twenty-two exhibits. A.R. 4 n.3–4. First, Ms. Brown testified that she liked how K.B. was
treated at Monroe, that she did not want him moved to High Road, and that she was not
concerned about the lack of dually-certified teachers at Monroe. See A.R. at 285–315. K.B. then
explained that he had made progress at Monroe, that he wanted to go away to college to study
animation, media, moviemaking, and drawing, and that while he knew that transferring was
going to help him implement his IEP and achieve his goals, he did not want to change schools.
A.R. at 368–71.
Dr. Gravely-Moss testified at length about K.B.’s social-emotional progress at Monroe,
saying that although K.B. initially “was suffering from a lot of emotional trauma from the school
where he was” before Monroe, he had “pretty much stabilized . . . until we started having these
multitudes of hearings over and over again” about the school K.B. would attend. A.R. 388–90.
She stated that transferring K.B. was inappropriate because he would “have to reorganize and
reorientate [sic] himself to another area,” which she believed would be emotionally harmful.
A.R. 393–94. She explained that she did not think that K.B. could get the access to the “kind of
intense counseling” from properly trained counselors that he would need “at a regular school,”
and that his self-esteem would decrease at another school if the children teased him about his
glandular issues. A.R. 401–02. Dr. Gravely-Moss also noted that it had taken her six months or
so to establish a therapeutic relationship with K.B., and that she believed it would take some time
for him to build that relationship with someone else. A.R. 408–10. Although Dr. Gravely-Moss
initially concluded that K.B. would “suffer” if removed from Monroe and all the services he
received there, she subsequently admitted that she did not know precisely how K.B. would adjust
7
to a new school, explaining that she “can’t speak for what would happen at another school . . .
because [she doesn’t] know where he’s going.” A.R. 418–19.
The hearing officer also heard testimony from the directors of Monroe and High Road,
who provided detailed information about their respective schools. The director and CEO of
Monroe, Ruth Logan-Staton, explained that Monroe is a full-time placement providing academic
and related services on campus, serving “students predominately with specific learning
disabilities.” A.R. 324. She testified that the student-teacher ratio was 5:1 or 6:1, and that
Monroe provided SAT support, college tours, and community service opportunities for its
students. A.R. 325–26. She also explained that as of the IEP meeting in May 2012, none of
K.B.’s teachers were dually certified in D.C., but K.B.’s history teacher had a special education
certificate from the District. A.R. 328–30, 337–58. By the time of the due process hearing, that
history teacher and K.B.’s English teacher were both dually certified by the District in special
education and a content area, but his business management, geometry, and science teachers were
still working towards obtaining their D.C. certificates. 4 Id.
Finally, High Road director Tina Stith-Twine provided the hearing officer with
information about High Road, explaining that the school serves students with learning
disabilities, that it has a student-teacher ratio of 2:1 to 4:1, that it partners with a communityservice organization to help students earn their service hours, and that it is a full-time
“therapeutic day school” providing speech and behavioral support services on site. A.R. 444–
4
K.B.’s business management teacher was taking classes to be certified in health and
physical education, and was teaching with a transitional certificate. A.R. 350–52. K.B.’s
geometry teacher was certified to teach special education in Maryland through grade eight, and
was seeking reciprocity to teach special education in D.C. through grade twelve and seeking to
obtain a certificate to teach math. A.R. 353–54, 362. K.B.’s science teacher was certified in D.C.
as a substitute teacher, and was seeking to obtain a reciprocity certificate in special education.
A.R. 355.
8
45, 452–55. For those students interested in attending college, High Road offers the ability to
earn a high school diploma, a career assessment with a transition coordinator, a class introducing
students to college life and the skills needed to succeed there, an annual college fair on campus,
college tours, a three-day event where students stay with and shadow a college student at Trinity
University, SAT fee waivers, and assistance with completing federal financial aid forms and
applying for scholarships. A.R. 460–63. Ms. Smith-Twine also explained that classes at High
Road are taught by a teaching assistant and two teachers, including one content-certified and one
special-education certified teacher. A.R. 453–54. As for services to facilitate K.B.’s transition
to High Road, Ms. Smith-Twine explained that K.B. would be assigned to a licensed social
worker and would work with the school’s transition coordinator, that the school would conduct a
30-day review with all concerned parties to ensure that K.B.’s program is working well for him,
that K.B. would receive individual counseling and could attend an all-male group session, and
that he would always have the ability to speak with someone during the school day if issues
arose, even if it was not during his pre-designated counseling time. A.R. 447–57, 65-67.
On February 5, 2013, the hearing officer issued a written determination explaining his
finding that K.B.’s mother had failed to prove that DCPS denied K.B. a FAPE or that it had
changed his educational placement for the 2012-2013 school year. A.R. 15. As an initial matter,
the hearing officer determined that no change in educational placement had occurred because the
transfer from Monroe to High Road affected only the location of K.B.’s educational services and
not the nature or quantity of services that K.B. would receive. A.R. 17. The hearing officer
considered the qualities of both schools before concluding that they were “substantially
identical,” possessing “small classes, low student-teacher ratios, therapeutic supports, and a
focus on preparing students for post-secondary education.” A.R. 17.
9
Additionally, the hearing officer determined that High Road would be able to implement
K.B.’s IEP “as well, or more effectively,” than Monroe, so the change in location of services did
not constitute a denial of a FAPE. A.R. 17. While acknowledging as legitimate the concern that
K.B. may have difficulty adjusting to a new school environment and that he may experience
anxiety as a result of the change, the hearing officer ultimately determined that K.B.’s anxiety
and difficulty in transitioning to new environments actually pointed in favor of the transfer
because the benefits of higher quality instruction combined with the benefits of High Road’s
college preparation program would likely be critical to K.B.’s success in pursuing his goal of
obtaining a post-secondary education. See A.R. 17–21.
D. Ms. Brown’s Appeal
Ms. Brown appealed the Hearing Officer Determination (“HOD”) by filing a complaint
in this Court on May 6, 2013, asserting that the hearing officer erred and that DCPS did deny
K.B. a FAPE by unilaterally changing his placement from Monroe to High Road. See generally
Compl., ECF No. 1. Specifically, she contends that the hearing officer erred by: (1) finding that
there was no change in K.B.’s educational placement, and (2) ignoring the harmful effects of
transferring on K.B. Id. at ¶¶ 25–38. Ms. Brown’s complaint requested a declaration that K.B.
was denied a FAPE and an injunction ordering DCPS to fund K.B.’s placement at Monroe for
the remainder of the 2012-2013 school year and for the 2013-2014 school year. Id. at 6.
By the time that Ms. Brown filed her motion for summary judgment in October 2013,
however, the 2012-2013 school year had already ended, and she sought only declaratory relief
and “an injunction ordering DCPS to fund K.B.’s placement at The Monroe School for the
remainder of the 2013-2014 school year.” Pl.’s Mot. Summ J. at 1, ECF No. 7. More time
passed as the parties completed briefing on their respective motions for summary judgment, and
10
while the matter was under advisement, K.B. graduated from Monroe with a high school
diploma. See Notice in Resp. to Ct.’s Minute Order at 1, ECF No. 15; Pl.’s Notice to the Ct. at 1,
ECF No. 16. K.B. went on to take classes at a community college in Maryland, and has been
accepted by a four-year college in Delaware that he plans to attend. Pl.’s Notice at 1.
Additionally, while this matter was pending, the Monroe School “filed an administrative
complaint in the D.C. Office of Administrative Hearings regarding the District’s non-payment of
tuition for K.B., and several other students.” Pl.’s Notice at 2. Monroe reached an agreement
with the District for K.B.’s tuition for the 2012-2013 school year, but “[n]o agreement has been
reached for K.B.’s tuition at Monroe for the 2013-2014 school year, and K.B.’s tuition remains
outstanding.” Pl.’s Notice at 2.
E. Supplemental Briefing
On September 25, 2014, this Court denied without prejudice both parties’ motions for
summary judgment and ordered additional briefing on the potential impact of intervening events
on the Court’s subject-matter jurisdiction. Mem. & Order at 2–4, Sept. 25, 2014, ECF No. 17.
The Court also ordered supplemental briefing on the issue of standing. Order, May 22, 2015,
ECF No. 25. Now before the Court are DCPS’s motion for summary judgment or, in the
alternative, for judgment on the pleadings, Def.’s Mot. Summ. J., ECF No. 18, and Ms. Brown’s
cross-motion for summary judgment seeking declaratory relief and an order requiring DCPS to
pay for K.B.’s senior year at Monroe, Pl.’s Cross-Mot. Summ. J., ECF No. 20.
III. STANDARD OF REVIEW
Following an administrative proceeding under the IDEA, any party that is “aggrieved by
the findings and decision” of the hearing officer may bring a civil action in federal court. 20
U.S.C. § 1415(i)(2). The reviewing court “(i) shall receive the records of the administrative
11
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.” Id. § 1415(i)(2)(C); see also 34 C.F.R. § 300.516(c).
In a civil action challenging a hearing officer determination under the IDEA, “[a] motion
for summary judgment operates as a motion for judgment based on the evidence comprising the
record and any additional evidence the Court may receive.” D.R. ex rel. Robinson v. District of
Columbia, 637 F. Supp. 2d 11, 16 (D.D.C. 2009). Where neither party submits additional
evidence for the court’s review, “the motion for summary judgment is simply the procedural
vehicle for asking the judge to decide the case on the basis of the administrative record.”
Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997) (internal quotation marks omitted);
accord Savoy v. District of Columbia, 844 F. Supp. 2d 23, 30 (D.D.C. 2012).
When evaluating a hearing officer's decision under the IDEA, the court reviews the
administrative record and bases its decision on the preponderance of the evidence. 20 U.S.C. §
1415(i)(2)(C)(iii). The hearing officer's decision is afforded “less deference than is conventional
in administrative proceedings.” Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005)
(internal quotation marks omitted). “Yet while a court must engage in a more rigorous review of
the decision below than is typical in administrative cases, it should nevertheless accord the
hearing officer's decision due weight, and should not substitute its own view of sound
educational policy for that of the hearing officer.” G.G. ex rel. Gersten v. District of Columbia,
924 F. Supp. 2d 273, 278 (D.D.C. 2013) (internal quotation marks omitted). The burden of proof
is with the party challenging the administrative determination, who must “at least take on the
burden of persuading the [C]ourt that the hearing officer was wrong.” Reid, 401 F.3d at 521
(internal quotation marks omitted).
12
IV. ANALYSIS
A. Jurisdiction
Article III of the Constitution limits the power of federal courts to actual “Cases” and
“Controversies.” U.S. CONST. art. III, § 2. From this requirement courts have derived several
doctrines—including standing and mootness—to ensure that courts do not stray beyond the
limits of their constitutionally allotted authority. Warth v. Seldin, 422 U.S. 490, 498 (1975)
(noting that the several doctrines that elaborate upon Article III's case and controversy
requirement are “founded in concern about the proper—and properly limited—role of the courts
in a democratic society.”).
To meet the constitutional requirement of standing, a plaintiff must show that: (1) she has
suffered an injury which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) there is a causal connection between the alleged injury and
conduct that is fairly traceable to the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). Courts assess standing by measuring the facts as they
existed at the time the suit commenced. Del Monte Fresh Produce Co. v. United States, 570
F.3d 316, 324 (D.C. Cir. 2009).
But even if standing once existed, courts must take additional pains to ensure that
jurisdiction continues to exist throughout all stages of the litigation. Davis v. FEC, 554 U.S. 724,
732–33 (2008) (“To qualify as a case fit for federal-court adjudication, an actual controversy
must be extant at all stages of review, not merely at the time the complaint is filed.” (internal
quotation marks omitted)). Thus, later events may render a once-viable claim moot. Becker v.
FEC, 230 F.3d 381, 387 n. 3 (1st Cir. 2000) (“[W]hile it is true that a plaintiff must have a
13
personal interest at stake throughout the litigation of a case, such interest is to be assessed under
the rubric of standing at the commencement of the case, and under the rubric of mootness
thereafter.”); see Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633, 636 (D.C. Cir. 2000) (noting
that “[s]tanding is assessed at the time the action commences,” whereas mootness concerns
whether “a justiciable controversy existed but no longer remains”).
Before considering the merits of Ms. Brown’s claims, this Court must first address the
threshold question of whether it has jurisdiction to hear them. DCPS argues that this matter is
moot in light of K.B.’s graduation from Monroe with a high school diploma in 2014 without
paying tuition. Def.’s Mot. Summ. J. at 10, ECF No. 18. Ms. Brown argues that because she
explicitly requested that DCPS fund K.B.’s placement at Monroe, and because DCPS still has
not paid for the 2013-2014 school year, effectual relief remains available and the case is not
moot. Pl.’s Cross-Mot. Summ. J. at 11–17. DCPS, however, believes that because Ms. Brown
has not shown that she is subject to an enforceable contractual obligation to pay tuition for the
2013-2014 school year, she lacks an injury-in-fact that would be redressable by an order of this
Court awarding tuition reimbursement. See generally Def.’s Suppl. Opp’n, ECF No. 27. The
Court considers each argument in turn, beginning with the question of mootness.
A case is moot if “events have so transpired that the decision will neither presently affect
the parties’ rights nor have a more-than-speculative chance of affecting them in the future.”
District of Columbia v. Doe, 611 F.3d 888, 894 (D.C. Cir. 2010) (internal quotation marks
omitted)). During the course of this litigation, DCPS funded K.B.’s 2012-2013 school year, K.B.
attended Monroe for his junior and senior years, and he graduated with a high school diploma in
2014. Accordingly, Ms. Brown has abandoned her now-moot requests for funding for K.B.’s
14
junior year as well as her request for a court-ordered placement at Monroe. 5 See Pl.’s CrossMot. Summ. J. at 1 (limiting request for injunctive relief to an order requiring payment of K.B.’s
unpaid 2013-2014 tuition). She maintains that this matter is not moot, however, because this
Court can still order effectual relief by requiring DCPS to pay the still-outstanding tuition for
K.B.’s senior year at Monroe.
A number of courts have found that a student’s high school graduation—or a similar
intervening event rendering the student ineligible for IDEA benefits—can moot a claim for
declaratory and injunctive relief under the IDEA if the plaintiff has not requested relief in the
form of tuition reimbursement or compensatory education. 6 Compensatory education consists of
“education services designed to make up for past deficiencies in a child’s program.” Boose v.
District of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015). Tuition reimbursement, on the
other hand, requires DCPS “to belatedly pay expenses that it should have paid all along.” Sch.
Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 370-71 (1985).
5
An exception to the mootness doctrine exists where “(1) the challenged action is in its
duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will be subject to the same action again.”
Doe, 611 F.3d at 894. Under District of Columbia law, DCPS is not obligated “to provide FAPE
to children with disabilities who have graduated from high school with a regular high school
diploma.” D.C. Mun. Regs. Subt. 5–E, § 3002.2(c). Thus, because K.B. is no longer eligible for
IDEA benefits from DCPS, this matter does not fall under the “capable of repetition, yet evading
review” exception to the mootness doctrine.
6
See, e.g., Moseley v. Bd. of Educ. of Albuquerque Pub. Schs., 483 F.3d 689, 692–94
(10th Cir. 2007) (dismissing as moot plaintiff’s requests for declaration of an IDEA violation,
prospective injunctive relief, attorney’s fees and costs and any other appropriate relief where
student had graduated and never requested compensatory damages); Brown v. Bartholomew
Consol. Sch. Corp., 442 F.3d 588, 596–600 (7th Cir. 2006) (finding that appellant’s claim for
declaratory and prospective injunctive relief under the IDEA, unaccompanied by a request for
damages, became moot when student moved to a different school district); Thomas R.W. v. Mass.
Dep't of Educ., 130 F.3d 477, 479–81 (1st Cir. 1997) (finding that appellant’s claim for
declaratory and injunctive relief under the IDEA, unaccompanied by a request for damages,
became moot when appellant graduated).
15
Here, as DCPS correctly points out, the phrases “tuition reimbursement” and
“compensatory education” appear nowhere in the complaint. Ms. Brown does not dispute the
appropriateness of K.B.’s IEP or the education and related services he actually received at
Monroe, and no request for compensatory education can be inferred from her complaint. The
complaint does request, however, that DCPS be ordered to fund K.B.’s education at Monroe.
Compl. at 1. And while DCPS initially asserted that “[t]he Monroe School is involved in
separate administrative proceedings against Defendant . . . seeking payment of tuition for K.B.,”
Def.’s Mot. Summ. J. at 10–11, a verified statement from Ms. Logan-Staton states that
“[p]ayment of K.B.’s tuition for the 2013-2014 school year remains outstanding, and no
administrative litigation for such payment has been or will be brought,” Statement of LoganStaton at ¶¶ 6–7, ECF No. 19-6. DCPS now concedes that no such administrative litigation
pertaining to K.B.’s tuition for the 2013-2014 school year occurred. Def.’s Suppl. Mem. at 4,
ECF No. 27.
DCPS admits that it has not funded or agreed to fund K.B.’s final year of tuition at
Monroe, and that no other administrative litigation is pending to pursue such funding. Ms.
Brown’s complaint does clearly request that the Court order DCPS “to fund K.B. at . . . Monroe .
. . for the 2013/14 school year.” Compl. at 1. It thus appears that while the requests for
declaratory relief, a placement at Monroe, and funding for the 2012-2013 school year have
become moot in light of intervening events, effectual relief remains available in the form of an
order requiring DCPS to fund K.B.’s final year of tuition at Monroe. See Lesesne, 447 F.3d at
832–33 (holding that where DCPS had provided plaintiff with some relief but her request for
compensatory education remained unaddressed, the matter was not moot); see also 20 U.S.C. §
1415(i)(2)(C) (providing courts with discretion to “grant such relief as the court determines is
16
appropriate”). The case is therefore not moot. See Chafin v. Chafin, 133 S. Ct. 1017, 1023
(2013) (“[A] case becomes moot only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party.” (internal quotation marks omitted)); Knox v. Serv.
Employees Int'l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012) (“As long as the parties have a
concrete interest, however small, in the outcome of the litigation, the case is not moot.” (internal
quotation marks omitted)).
This brings the Court to DCPS’s second jurisdictional argument: that Ms. Brown lacks
standing to pursue reimbursement for K.B.’s unpaid tuition because “Ms. Brown is under no
obligation to pay Monroe any tuition monies for the relevant school year.” 7 Def.’s Suppl. Mem.
at 5. DCPS contends that the oral agreement between Ms. Logan-Staton and Ms. Brown
regarding K.B.’s unpaid tuition for 2013-2014 “amounts to nothing more than an unenforceable,
illusory promise,” premised on the understanding that Ms. Brown could not pay the tuition in
question. Id. at 5–6. By way of support, DCPS cites Davis v. Joseph J. Magnolia, Inc., which
explains that “a contract lacks consideration when one party's promise is illusory, and a promise
is illusory when performance of that promise is optional.” 640 F. Supp. 2d 38, 45–46 (D.D.C.
2009) (holding that where arbitration agreement included language saying that one party had sole
discretion to “periodically change” the terms of that agreement, that language made the party’s
performance optional and rendered the agreement unenforceable).
7
DCPS also argues that Ms. Brown lacks standing because she has failed to establish that
DCPS was obligated to pay K.B.’s tuition or that a change in educational placement occurred.
Def.’s Suppl. Mem. at 4–5. But such arguments conflate considerations of standing with the
merits of Ms. Brown’s claims and thus have no place in this Court’s standing analysis. See Muir
v. Navy Fed. Credit Union, 529 F.3d 1100, 1105 (D.C. Cir. 2008) (“In reviewing the standing
question, the court must be careful not to decide the questions on the merits for or against the
plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their
claims.” (internal quotation marks omitted)).
17
“Under D.C. law, as is generally true, for an enforceable contract to exist, there must be
both (1) agreement as to all material terms; and (2) intention of the parties to be bound. Absent
any contrary requirement under a statute of frauds, parties may enter into enforceable oral
contracts, as long as they agree to all material terms and intend to be bound by their oral
agreement.” Jack Baker, Inc. v. Office Space Dev. Corp., 664 A.2d 1236, 1238 (D.C. 1995)
(internal quotation marks and citations omitted). In this case, Ms. Brown has provided the
verified statement of Ms. Logan-Staton in support of her assertion that she is contractually
obligated to Monroe for K.B.’s tuition for the 2013-2014 school year. Ms. Logan-Staton recalled
that “[w]hen DCPS refused to pay K.B.’s tuition for the 2013/14 school year, in order to allow
K.B. to remain at Monroe and graduate . . . Ms. Brown and I (on behalf of the Monroe School)
agreed that Ms. Brown would be liable for K.B.’s tuition for that year . . . [and that she would]
continue to pursue this litigation to obtain funding from DCPS to K.B.” Second Statement
Logan-Staton ¶ 5, ECF No. 26-1.
DCPS highlights Ms. Logan-Staton’s subsequent statement that she and Ms. Brown “did
not formalize this agreement into a writing” and that Ms. Logan-Staton did not believe that Ms.
Brown had or “would have the capacity to pay K.B.’s tuition.” 2d Statement Logan-Staton at ¶
6. But as Ms. Brown points out, DCPS cites nothing to suggest that a party who contracts to
assume a debt without possessing the ability to repay it is not still contractually obligated to pay
that debt. Cf. E.M. v. N.Y.C. Dept. of Educ., 758 F.3d 442, 457–63 (2d Cir. 2014) (holding that
IDEA plaintiff established standing to pursue unpaid tuition where she showed that she was
contractually obligated to pay school tuition, or was at least was subject to the risk of “potential
civil liability should she fail to pay” it). Unlike Davis, the alleged agreement between Ms.
Brown and Monroe does not appear to include any language rendering Ms. Brown’s performance
18
optional. Moreover, in exchange for K.B.’s ability to attend Monroe, Ms. Brown claims to have
offered two forms of consideration: the assumption of liability for the tuition and the promise to
pursue this litigation to obtain funding from DCPS. Second Statement Logan-Staton ¶ 5. DCPS
does not appear to dispute that the promise to pursue funding via litigation is valid consideration.
See Eastbanc, Inc. v. Georgetown Park Associates II, L.P., 940 A.2d 996, 1003 (D.C. 2008)
(“For a contract to be enforceable, each party must undertake to do something [the] party
otherwise is under no legal obligation to do . . . .” (internal quotation marks omitted)).
In the absence of any other challenges to the enforceability of the oral agreement, the
Court finds that Ms. Brown has established injury-in-fact in the form of her contractual
obligations to Monroe, that such injury is traceable to DCPS’s failure to fund K.B.’s placement
at Monroe, and that is redressable by a court order requiring DCPS to pay the outstanding tuition,
thereby relieving Ms. Brown of her contractual obligations. 8 With standing thus established, the
Court turns now to the merits of Ms. Brown’s claims.
B. The Transfer to High Road Did Not Constitute a Change in “Educational Placement”
Ms. Brown first argues that the hearing officer erred by determining that the transfer to
High Road did not constitute a change in K.B.’s educational placement and was instead a change
in location of services. Pl.’s Cross-Mot. Summ. J. at 17. She contends that at no point does the
IDEA define “educational placement” as merely a student’s IEP, and she points out that some
portions of the IDEA and its implementing regulations use the word “placement”
8
Because the Court finds that Ms. Brown has established injury-in-fact on the basis of
her contractual obligation to Monroe for K.B.’s tuition, it need not address her alternative basis
for standing premised on the denial of a statutory right to a FAPE. See Pl.’s Suppl. Br. at 5, ECF
No. 26.
19
interchangeably with the word “setting.” 9 Id. at 17–18. Because the stay-put provision of the
IDEA required DCPS to maintain K.B.’s educational placement during the course of these
proceedings, and because DCPS violated that provision by changing K.B.’s educational
placement to High Road, Ms. Brown contends that the Court should award her tuition
reimbursement for K.B.’s senior year at Monroe. Pl.’s Reply at 5, ECF No. 24.
DCPS disputes Ms. Brown’s assertion that “placement means placement,” arguing that
“educational placement” is a term of art that this Circuit has defined to mean “at a minimum, a
fundamental change in, or elimination of a basic element of the education program.” Lunceford
v. D.C. Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984) (holding that change in location of
residential services and in quality of feeding program “can be a problem, and the subject of a
complaint . . . [b]ut it is not alone sufficient to constitute a change in educational placement” that
would trigger the stay-put provision). In this case, DCPS argues that the hearing officer
correctly determined that the transfer to High Road did not constitute a change in educational
placement because K.B. was to receive the same services in the same type of educational setting
at a virtually identical school. Def.’s Opp’n at 8–10, ECF No. 22.
Although the IDEA does not define the term “educational placement,” and Ms. Brown’s
statutory interpretation argument has some appeal, this Court is not writing on a blank slate. In
Lunceford, the D.C. Circuit Court expressly considered the question of “what constitutes a
child’s ‘educational placement,” and, following the lead of the Second Circuit in Concerned
9
See 34 C.F.R. § 300.530(b)(1) (“School personnel . . . may remove a child . . . from his
or her current placement to an appropriate interim alternative educational setting, another setting,
or suspension”); 34 C.F.R. § 300.533 (“Placement during appeals: When an appeal under §
300.532 has been made by either the parent or the LEA, the child must remain in the interim
alternative educational setting pending the decision of the hearing officer.”); 34 C.F.R. § 300.646
(requires data collection regarding “placement in particular educational settings”); 34 C.F.R. §
300.116(b) (requiring that a “child's placement . . . [i]s as close as possible to the child's home”).
20
Parents v. New York City Board of Education, 629 F.2d 751 (2d Cir. 1980), 10 it held that not all
changes in location or quality of services qualify as a change in educational placement that
triggers the stay-put provision. 745 F.2d at 1582 (rejecting “an interpretation of change in
‘educational placement’ that would include all changes” in location of services, because such an
interpretation “would certainly discourage the District from temporarily changing a child's
[residential placement] to improve his education”). 11 In that case, a student who had been
admitted to one residential placement was to be moved to another residential placement. Id. at
1579, 1582. The child’s surrogate-parent protested the change, arguing that although the child
would still receive one-on-one feeding from a nutritionist-developed program at the new
location, the program would not be administered as well because the staff at the new location
were overworked. Id. at 1587. Though sympathetic to the parent’s concerns, the Lunceford
court was clear in finding that the change in location of residential services and differences in
administration of the feeding program were “not alone sufficient to constitute a change in
educational placement.” Id. at 1581–83.
10
Concerned Parents held that although a contested transfer between schools was
“poorly planned,” and “the move was disconcerting to many of the handicapped children . . . the
transfer of handicapped children in special classes at one school to substantially similar classes at
other schools within the same school district [does not] constitute[] a change in ‘placement’
sufficient to trigger the Act's prior notice and hearing requirements.” Id. at 753–55 (explaining
that a decision “to transfer the special education classes at one regular school to other regular
schools in the same district” did not constitute a change in educational placement, while “a
decision to transfer a handicapped child from a special class in a regular school to a special
school would involve the sort of fundamental alteration in the child’s education requiring prior
parental notification”).
11
As to the relationship between residential and educational services for disabled
children, the Lunceford court explained that free residential care could be required as part of a
free education, and that “the educational needs of a severely handicapped child . . . are closely
intertwined with the need for other residential services.” Id. at 1581–83.
21
Undaunted, Ms. Brown posits first that Lunceford is no longer good law, and second, that
even if it controls, she has met her burden of establishing a “fundamental change” in K.B.’s
educational program. Pl.’s Cross-Mot. Summ. J. at 19–25. As to Lunceford, Ms. Brown
contends that the decision was abrogated in 1985 by the Supreme Court’s decision in Burlington
School Comm. v. Mass. Dept. of Edu., 471 U.S. 359 (1985). Burlington, she argues, and a
number of subsequently decided D.C. Circuit opinions, all use the term “placement” when
referring to a specific school, thereby implicitly overturning Lunceford’s “fundamental change”
test. Pl.’s Cross-Mot. Summ. J. at 19–22.
Setting aside the fact that Ms. Brown explicitly invoked the Lunceford test in her
administrative due process complaint with no suggestion of abrogation, 12 there are two problems
with Ms. Brown’s argument. First, the Burlington decision can hardly be viewed as abrogating
Lunceford because the Supreme Court in Burlington had no occasion to analyze the meaning of
“educational placement” or what constitutes a change therein. In fact, Burlington expressly
declined to decide the child’s “then current educational placement,” deeming the question
“academic” in that case and assuming without deciding that the parent had changed his child’s
educational placement when he rejected the proposed IEP, which “called for placing [the child]
in a highly structured class of six children with special academic and social needs, located at
another Town public school,” and instead enrolled the child at a private school with “a highly
specialized setting for children with learning handicaps.” 471 U.S. at 363, 371.
12
Indeed, Ms. Brown quoted Lunceford for the proposition that “[i]n order to qualify as a
change in educational placement, a fundamental change in, or elimination of a basic element of
the educational program must be identified.” A.R. 141 (citing 745 F.2d 1577). She also argued
explicitly that “[e]ducational placement under IDEA [is] not simply the physical location of the
student, but rather is the provision of special education and related services rather than a specific
place.” A.R. 138. DCPS has not raised these potential inconsistencies, however, and the Court
thus does not address them further.
22
Second, Ms. Brown’s assertion that this Circuit abandoned the Lunceford definition of
“educational placement” post-Burlington is incorrect. Ms. Brown would have the Court infer
that this Circuit has rejected Lunceford and adopted a “plain-language understanding of
placement” in the wake of Burlington, pointing to opinions that use the words “place” or
“placement” when discussing a child’s assignment to a particular school. 13 Pl.’s Cross-Mot.
Summ. J. at 19–21. However, Ms. Brown’s position is flatly contradicted by this Circuit’s
express application of Lunceford’s “educational placement” test well after Burlington was
decided. 14 In Abney by Kantor v. District of Columbia, 849 F.2d 1491 (D.C. Cir. 1988), decided
13
In one such case, McKenzie v. Smith, the Circuit Court cited Burlington and Lunceford
without any suggestion of abrogation, and held that where a parent protested a change in
placement from a private special education school to a large public high school where, contrary
to the student’s IEP, he would receive at least a quarter of his instruction in a regular education
setting, DCPS violated the Act’s stay put requirement by failing to maintain the student in the
same or a similar program during the course of review proceedings. 771 F.2d 1527 (D.C. Cir.
1985). The decision was thus entirely consistent with Lunceford’s holding that a fundamental
change in a student’s educational program—like the change from private special education
program to a public regular education program in contravention of the student’s IEP—will
constitute a change in educational placement and trigger the IDEA’s stay put provision.
14
A number of other circuits have also continued to distinguish between changes in a
student’s educational placement and mere changes in the location in which a student receives
educational services. See, e.g., T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 171
(2d Cir. 2014) (“[T]he term ‘educational placement’ refers only to the general type of
educational program in which the child is placed. That is, the pendency provision does not
guarantee a disabled child the right to remain in the exact same school with the exact same
service providers while his administrative and judicial proceedings are pending. Instead, it
guarantees only the same general level and type of services that the disabled child was
receiving.” (internal quotation marks and citations omitted)); AW ex rel. Wilson v. Fairfax Cnty.
Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004) (“[T]he touchstone of the term ‘educational
placement’ is not the location to which the student is assigned but rather the environment in
which educational services are provided. To the extent that a new setting replicates the
educational program contemplated by the student's original assignment and is consistent with the
principles of ‘mainstreaming’ and affording access to a FAPE, the goal of protecting the
student's ‘educational placement’ served by the ‘stay-put’ provision appears to be met.”); White
ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003) (“‘Educational
placement,’ as used in the IDEA, means educational program—not the particular institution
where that program is implemented.” (internal quotation marks omitted)).
23
three years after Burlington, the Circuit Court cited the Lunceford rule and found that a plaintiff
had failed to show an unlawful change in educational placement because “[a]lthough the
instruction he received at Forest Haven was not precisely identical to that which he had been
given at HSC, [the plaintiff] made no showing that it differed fundamentally.” Id. at 1498 n.6.
In the following year, the Circuit Court again quoted Lunceford, noting that although DCPS had
“inexplicably” failed to argue the point, it appeared that a transfer between schools that were
dissimilar only in that one was public and one was private would not constitute a change in
educational placement or trigger the stay-put provision. See Knight by Knight v. District of
Columbia, 877 F.2d 1025, 1028–29 (D.C. Cir. 1989). Judges in this district have thus continued
to apply Lunceford when analyzing purported changes in educational placements through the
present day. 15
Having disposed of Ms. Brown’s argument that Lunceford’s educational placement
definition was abrogated by Burlington, the Court now turns to the question of whether Ms.
Brown has established error in the hearing officer’s finding that the move from Monroe to High
Road constituted only a change in location of services and not a “fundamental change” in K.B.’s
educational program. The hearing officer found, and Ms. Brown does not dispute, that the move
15
See, e.g., G.B. v. District of Columbia, 78 F. Supp. 3d 109, 116 (D.D.C. Jan. 14, 2015)
(applying Lunceford and finding change in educational placement where DCPS proposed
reducing hours of instruction and related services, moving child from fully separate setting to
one exposing her to non-disabled students, and segregating her from her peers during lunch);
D.K. ex rel. Klein v. District of Columbia, 962 F. Supp. 2d 227, 233 (D.D.C. 2013) (applying
Lunceford and finding no change in educational placement despite transfer to a new school
because both schools could implement student’s IEP and both “offer small classes outside the
general setting with individual instruction, strategies for dealing with noise, access to special
services, and programs for advanced instruction”); Aikens v. District of Columbia, 950 F. Supp.
2d 186, 192 (D.D.C. 2013) (same); Spilsbury v. District of Columbia, 307 F. Supp. 2d 22, 27
(D.D.C. 2004) (applying Lunceford and holding that elimination of academic tutoring and mental
health services constituted a fundamental change in basic elements of the student’s educational
program, thereby triggering the stay-put provision).
24
from Monroe to High Road would not affect the quantity or type of education and related
services that K.B. received. A.R. 17. Likewise, she does not take issue with the findings that at
High Road, K.B. “would continue to spend his entire day outside the general education setting in
a nonpublic, special education day school,” that students in both schools “have similar disability
classifications,” and that “[t]he two schools are substantially identical, with small classes, low
student-teacher ratios, therapeutic supports, and a focus on preparing students for post-secondary
education.” A.R. 17.
Although the schools and services provided are effectively identical, Ms. Brown insists
that the transfer from Monroe to High Road constitutes a fundamental change to a basic element
of K.B.’s educational program because K.B.’s anxiety would have prevented him from accessing
his education at a new school. Pl.’s Reply at 8–9. She emphasizes that the hearing officer found
credible Dr. Gravely-Moss’s testimony “about how [K.B.’s] anxiety about starting over at a new
school would prevent him from accessing the curriculum,” A.R. 14, and she argues that such a
finding is irreconcilable with the hearing officer’s conclusion that the transfer was not a change
in educational placement. A careful review of both Dr. Gravely-Moss’s testimony and the full
HOD, however, reveals that the hearing officer’s conclusion is sound.
Dr. Gravely-Moss did initially testify that she believed that changing schools would be
emotionally harmful for K.B. and that it would impact his ability to access his education, A.R.
394, but she subsequently explained that she was concerned that “at a regular school,” K.B.
would not have access to the kind of intensive counseling that he would need if children started
bullying or teasing him, A.R. 401–02, because “the average school does not have . . . these
capabilities,” A.R. 410. She also stated that while she believed that being removed from the
services provided at Monroe would harm K.B., she could not speak to how long K.B. might need
25
to adjust to another school without knowing the school in question, A.R. 418–19, and she
suggested that K.B. might feel comfortable at a new school if it had people appropriately trained
and qualified to deal with K.B.’s behavior that were willing to counsel him as provided in his
IEP and on a crisis basis, A.R. 425–27. It thus appears from Dr. Gravely-Moss’s full testimony
that the nature and quality of counseling services provided at a new school would affect the
duration and severity of any anxiety-related difficulties that K.B. might have.
The hearing officer’s decision makes clear that she took these facts into account. See
A.R. 16 (explaining that in determining whether a change in educational placement occurred, the
hearing officer performed a “fact specific” inquiry into whether the proposed change would
materially alter K.B.’s educational program or “affect in some significant way the child’s
learning experience”). The hearing officer credited Dr. Gravely-Moss’s testimony and
recognized that K.B. would “initially have difficulty transitioning,” but she also found that K.B.
had learned strategies at Monroe “to help smooth his transition,” that he would receive similar
therapeutic support at High Road, and that “social workers will be available to assist [K.B.]
whenever he experiences anxiety or difficulty coping in his new environment.” A.R. 18. Far
from ignoring the fact that K.B.’s anxiety could impact his access to his education at a new
school, the hearing officer carefully considered the issue and determined that in light of the
behavioral and therapeutic services offered, High Road could adequately address any anxiety
that K.B. experienced. Accordingly, the hearing officer found that High Road could implement
K.B.’s IEP “as well, or more effectively,” than Monroe, given the legitimate concerns about the
quality of instruction K.B. received at Monroe. 16 A.R. 17–18. The hearing officer therefore
16
As to the quality of instruction at Monroe, the hearing officer found—and the record
shows—that none of K.B.’s five teachers were dually certified in D.C. in special education and a
content area as of the May 2012 IEP meeting, and that only two of the five were dually certified
26
concluded that the move to High Road to ensure that K.B was taught by appropriately certified
teachers was not the type of fundamental change in an educational program that qualified as a
change in educational placement. A.R. 17.
Affording due weight to the hearing officer’s judgment, the Court can discern no error in
her conclusion that no fundamental change in K.B.’s educational program—and thus no change
in K.B.’s educational placement—occurred.17 See District of Columbia v. Doe, 611 F.3d 888,
897 (D.C. Cir. 2010) (citing Dale M. ex rel. Alice M. v. Bd. of Educ., 237 F.3d 813, 815 (7th Cir.
2001), for the proposition that if a “district court relies solely on administrative record, [the]
IDEA hearing officer's decision warrants due deference”). High Road and Monroe were
virtually identical private schools that offered K.B. the same educational and related services in
the same type of educational setting. High Road also offered K.B. instruction from appropriately
certified teachers, and like Monroe, it made counselors available at all times to ease any anxiety
K.B. would have felt at the transition. As the hearing officer reasonably concluded, this type of
transfer constitutes only a change in location of services. Thus, the Court finds that because Ms.
Brown has not shown that the hearing officer erred in concluding that no change in educational
as of the due process hearing. A.R. 10–11. The hearing officer was particularly concerned that
K.B. was being taught science by an individual who “qualified only as a substitute teacher.”
A.R. 18 n.150.
17
Cf. Gore v. District of Columbia, 67 F. Supp. 3d 147, 153 (D.D.C. 2014) (finding that
transfer from Monroe to High Road constituted a change in location of services and not a change
in educational placement); Ward v. District of Columbia, No. 13-CV-0098, 2014 WL 272413, at
*6-7 (D.D.C. Jan. 24, 2014) (finding no error in determination that change in schools was only
change in location of services where new school provided same educational setting, could
implement student’s IEP, and could provide additional services if needed); James v. District of
Columbia, 949 F. Supp. 2d 134, 138 (D.D.C. 2013) (holding that hearing officer correctly found
educational settings at two schools to be “substantially and materially similar,” as both provided
“full-time out of general education program,” were equipped to address the child’s needs, and
offered all IEP-required services, such that the transfer was not a change in educational
placement).
27
placement occurred, she has not shown an entitlement to tuition reimbursement premised on
DCPS’s violation of the stay-put provision of the IDEA. See Lunceford, 745 F.2d at 1582–23
(holding that where child would receive the same services at a different location, concern about
inferior administration of those services at the new location was not enough “to constitute a
change in educational placement” that would trigger the stay-put requirement).
C. High Road was an Appropriate Location of Services for K.B.
Ms. Brown’s final argument is that the hearing officer erred in finding that the transfer to
High Road did not result in the denial of a FAPE because she ignored facts and law showing that
High Road was an inappropriate school for K.B. Pl.’s Cross-Mot. Summ. J. at 22–25. Ms.
Brown reiterates that K.B.’s anxiety made it inappropriate to move him from Monroe, and she
adds that it was particularly inappropriate to move him “so close to his graduation.” Id. at 22–
23. Ms. Brown further argues that the hearing officer erred by ignoring Holmes v. District of
Columbia, 680 F. Supp. 40 (D.D.C. 1998), which held that it was inappropriate to place a child at
a new school in the final semester before his graduation from high school. Id. at 24. As
explained below, the Court finds none of these arguments meritorious.
“Under the IDEA, an appropriate location of services is one which can implement a
student’s IEP and meet his specialized educational and behavioral needs.” James v. District of
Columbia, 949 F. Supp. 2d 134, 139 (D.D.C. 2013). The question of whether a given placement
is appropriate is fact-specific, and takes into consideration a number of factors like “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.”
Branham v. District of Columbia, 427 F.3d 7, 12 (D.C. Cir. 2005) (internal quotation marks
28
omitted). Although the IDEA entitles a student to an appropriate placement, it does not require
that a state provide a student with the program or location of services of his choice. See Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982) (holding that
state meets its obligations under the Act “by providing personalized instruction with sufficient
support services to permit the child to benefit educationally from that instruction”); Cooper v.
District of Columbia, No. CV 14-00102, 2014 WL 7411862, at *4-5 (D.D.C. Dec. 30, 2014)
(holding that where DCPS provided an appropriate placement, “it cannot be required to pay for
the education plaintiff would prefer”). The IDEA mandates only “a basic floor of opportunity,”
and district courts are not free to impose a potential-maximizing standard by deeming a
placement inappropriate simply because another location might be better for the child in some
way. Kerkam v. McKenzie, 862 F.2d 884, 889 (D.C. Cir. 1988) (explaining that where a student
was making progress at one school and might not make “the same gains” at a second school, the
second school was not inappropriate simply because it was inferior, so long as it provided “some
educational benefit” for the child).
In this case, the HOD shows that the hearing officer carefully considered the applicable
law and the evidence before her, and that she reasonably determined that High Road was an
appropriate placement for K.B. that could implement his IEP and confer vital educational
benefits. A.R. 17–18. First, as discussed above, the hearing officer considered K.B.’s anxiety
and the possibility that a transfer may, at least initially, result in some impairment of his access
to his education. See A.R. 17–18. In light of High Road’s provision of social workers to assist
K.B. with any anxiety during the transition, however, and upon consideration of the evidence
that K.B.’s teachers at Monroe were not properly certified, the hearing officer concluded that
“the harm [K.B.] will suffer from having to start over in a new environment will be outweighed
29
by the higher quality of instruction he is likely to receive there.” A.R. 17–18 (explaining that
High Road could implement K.B.’s IEP, and that his anxiety, difficulty with transitions, and
college goals made High Road’s higher-quality instruction and “college preparatory courses and
activities” vitally important for K.B. because they would be “critical to his success in his postsecondary education”). Ms. Brown’s assertion that the hearing officer failed to consider harm to
K.B. caused by his anxiety in new environments is thus incorrect.
Second, while Ms. Brown argues that the hearing officer erred by ignoring Holmes and
the potential harm to K.B. caused by a mid-year transfer, the hearing officer explicitly
acknowledged that “avoiding . . . mid-year transfers is a desirable goal,” and she cited Holmes
and Block v. District of Columbia, 748 F. Supp. 891 (D.D.C. 1990), for the proposition that
“while a school may be appropriate for a student if he begins the school year there, it is not
necessarily appropriate to inject the student into that school part-way through the school year.”
A.R. 18.
In Holmes, this Court explained that to transfer a student from an established school that
constituted an appropriate placement to a start-up school that could not “have come even close to
meeting the needs of the [child],” when the child had only a semester left in his high school
education, would be clearly inappropriate. 680 F. Supp. at 42. The Court went on to add that the
transfer school “would have been an inappropriate placement at all relevant times in the past,”
and that DCPS “had only themselves to blame” for the expense and the delays in the case, which
were attributable to DCPS’s failure to prepare a timely IEP for the student and other procedural
mistakes. Id. at 43–44. Similarly, in Block, the Court found that the need for a mid-year transfer
was solely attributable to DCPS’s delays, and that given “the special circumstances of [the
child’s] condition and DCPS’s failure to timely produce a complete and appropriate IEP,” the
30
hearing officer did not err in holding that a mid-year transfer to a public school was not an
appropriate placement for the child. 748 F. Supp. at 895–96, 896 n.6 (noting also that DCPS was
pursuing the transfer based on a reluctance “to spend money on placements at private schools”
and not to “fill any educational need” of the child).
In this case, however, DCPS made the decision to reassign K.B. to High Road in May
2012, “four months before the start of the 2012-2013 school year,” and more than two years
before his projected graduation date. See A.R. 19, 99. The fact that K.B. was facing a mid-year
transfer by the time the due process hearing occurred was thus a product not of DCPS’s decision
to change the location of services, but of Ms. Brown’s filing of the operative due process
complaint seven months after that decision. 18 A.R. 19; cf. Holmes, 748 F. Supp. at 42–44
(finding that DCPS was responsible for the delayed transfer); Block, 748 F. Supp. at 895–98
(same). And while Block dealt with a transfer motivated by DCPS’s desire to avoid paying for a
private placement rather than by the unique educational needs of the child, 748 F. Supp. at 895–
96, n.6, here, DCPS “was justified in changing the Student’s location of services” due to
“legitimate concerns about the quality of instruction the Student received” at Monroe, A.R. 17.
Moreover, while the Holmes court was confronted by a mid-year transfer to an
unestablished school incapable of meeting the student’s needs, 680 F. Supp. at 42, in this
instance, the hearing officer heard credible testimony that High Road was fully capable of
implementing K.B.’s IEP and providing him with all necessary services, A.R. 17–18. Ms. StithTwine testified not only that High Road could implement K.B.’s IEP, but also that it could
accommodate K.B.’s mid-year transfer, explaining that the school routinely managed the anxiety
18
Ms. Brown had filed another complaint earlier in 2012, but she asked that it be
dismissed because she could not take time off of work to attend a due process hearing.
Statement of Blaeuer at ¶¶ 3–5, Pl.’s Ex. A, ECF No. 20-4.
31
of students who transferred mid-year, and that to facilitate the move, it would match K.B.’s
current curriculum, have him meet with the school’s transition coordinator, and have him work
with a licensed social worker to help him deal with any anxiety or stress. A.R. 465–67. The
record therefore supports the hearing officer’s finding that High Road could provide educational
benefit to K.B. and implement his IEP even if he was transferred mid-year. See Ward, 2014 WL
272413, at *8 (finding that potential setback to student caused by period of adjustment to a new
school did not make transfer inappropriate where school could provide services to mitigate the
negative effects of the transfer and could implement student’s IEP); see also Paolella ex rel.
Paolella v. District of Columbia, 210 F. App'x 1, 2 (D.C. Cir. 2006) (holding that placement was
not inappropriate where student was assigned to a school that “was conducting a special
education program with trained staff in specifically allocated facilities and that the parents were
assured that their concerns—for example, about the child’s transition to the public school—could
be addressed in several ways”).
Although Ms. Brown may disagree with the hearing officer’s judgment that High Road
could effectively implement K.B.’s IEP, address his anxiety with the transfer, and provide him
with academic benefits that outweighed any harms caused by the move, she has failed to
establish that the hearing officer’s decision ignored either binding authority or evidence of harm
to K.B. 19 In the absence of such a showing, this Court has no reason to second-guess the
19
In her reply brief, Ms. Brown also argues that the hearing officer’s assumption that
K.B. would receive better instruction at High Road was erroneous because “almost all of his
teachers at Monroe were certified.” Pl.’s Reply at 6. While “it is a well-settled prudential
doctrine that courts generally will not entertain new arguments first raised in a reply brief,”
Lewis v. District of Columbia, 791 F. Supp. 2d 136, 139 n.4 (D.D.C. 2011), the argument would
fare no better if considered on the merits. The HOD clearly and accurately described the
evidence in the administrative record, which showed that at the time of the due process hearing,
only two of K.B.’s five instructors had dual certifications from D.C. in special education and a
32
judgment of the hearing officer that High Road was an appropriate placement for K.B. Cf.
Kerkam, 862 F.2d at 888–89 (holding that although expert testified that child has made progress
at current placement and would “regress, at least initially, if his placement were changed,” where
the hearing officer found that new school was nevertheless appropriate to meet child’s needs, the
district court’s unexplained decision to credit the views of those who disagreed with the hearing
officer was erroneous); see also Rowley, 458 U.S. at 206 (“[T]he 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”).
Because DCPS made available to K.B. a free appropriate education at High Road, it
“cannot be required to pay for the education plaintiff would prefer.” Cooper, 77 F. Supp. 3d at
32. Parents who choose to place their child in a private school without the agreement of the
school district “do so at their own financial risk,” and are entitled to reimbursement only if a
court concludes both that the placement approved by the school officials violates the IDEA and
that the parent’s private school placement is proper. Florence County Sch. Dist. v. Carter, 510
U.S. 7, 15 (1993). Thus, because Ms. Brown has failed to show error in the hearing officer’s
finding that DCPS provided K.B. a FAPE at High Road, she has not established entitlement to
tuition reimbursement for K.B.’s 2013-2014 school year at Monroe.
content area, one had an out-of-state license to teach special education to younger students, one
had a transitional certificate, and one was certified as a substitute teacher. A.R. 10–11.
33
V. CONCLUSION
For the foregoing reasons, the Court grants DCPS’s motion for summary judgment and
denies Ms. Brown’s cross-motion for summary judgment. An Order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: September 4, 2015
RUDOLPH CONTRERAS
United States District Judge
34
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?