Kingsmore v. District of Columbia , 466 F.3d 118 ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2006 Decided September 29, 2006
No. 05-7156
LAUREN KINGSMORE, PARENT AND NEXT FRIEND OF HANNAH
LUTZ, A MINOR,
APPELLEE
v.
DISTRICT OF COLUMBIA,
A MUNICIPAL CORPORATION AND
PAUL VANCE, OFFICIAL AS SUPERINTENDENT,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01130)
Before: RANDOLPH and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
JUDGMENT
This cause was considered on the record from the United
States District Court for the District of Columbia, and was
briefed and argued by counsel. It is
ORDERED AND ADJUDGED that the judgment of the District
Court be vacated and the case remanded.
2
Under the Individuals with Disabilities in Education Act
(“IDEA”), 20 U.S.C. §§ 1400 et seq., the District of Columbia
must ensure that a “free appropriate public education” (“FAPE”)
is available to learning disabled children, id. at § 1412(a). In
2002, Lauren Kingsmore moved with her mildly disabled minor
daughter, Hannah Lutz, to the District of Columbia. The
District of Columbia Public Schools (“DCPS”) prepared an
individual education plan (“IEP”) for Hannah. Dissatisfied with
the plan, Ms. Kingsmore requested and received an
administrative hearing to challenge the adequacy of the IEP.
The hearing officer determined the IEP was appropriate and met
the requirements of IDEA.
Ms. Kingsmore appealed and discovered the transcript of
the due process hearing was incomplete. Specifically, the
transcript was missing all of the cross examination of DCPS’s
expert, contained over 100 instances where the hearing officer’s
comments were “inaudible,” and contained an “audio break” of
unknown duration. Kingsmore v. District of Columbia, 393 F.
Supp. 2d 30, 32 (D.D.C. 2005). Under IDEA, DCPS is
obligated to provide a “verbatim” transcript. 20 U.S.C.
§ 1415(h)(3). Arguing that the record was so deficient as to
prevent the court from providing any meaningful review,
appellee moved for summary judgment, or, in the alternative, a
new hearing. Appellants insisted the transcript was sufficient
and cross-moved for summary judgment in their favor.
The District Court granted appellee’s motion and ordered
DCPS to provide reimbursement for Hannah Lutz’s placement
in a private school for the 2002-03 and 2003-04 academic years.
Kingsmore, 393 F. Supp. 2d at 34. The District Court held that:
By failing to provide the complete transcript or verbatim
recording of the due process hearing to which plaintiffs
were entitled under 20 U.S.C. § 1415(h), defendants denied
plaintiffs their right to contest adequately an adverse
[hearing officer decision], and so denied Hannah Lutz the
3
free appropriate public education she is guaranteed by the
IDEA.
Id.Thereafter, this Court joined the majority of other circuits
in ruling that a claim based on a violation of IDEA’s procedural
requirements “is viable only if those procedural violations
affected the student’s substantive rights.” Lesesne v. District of
Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006). This Court
denied relief to the plaintiff in Lesesne because she failed to
demonstrate “that [the student’s] education was affected by any
procedural violations DCPS might have committed.” Id.The District Court’s decision fails to consider whether the
transcript violation did substantive harm to Hannah Lutz.
Instead, the decision contains only repeated ipse dixits equating
failure to provide a verbatim transcript with a substantive denial
of FAPE. We fail to see how the transcript violation in this case
could have caused a substantive denial of FAPE. The District
Court has multiple means by which to remedy such a procedural
defect. It could itself hear additional evidence to supplement the
missing parts of the record. See 20 U.S.C. § 1415(i)(2)(C)(ii)
(providing that the reviewing court “shall hear additional
evidence at the request of a party”); Branham v. District of
Columbia, 427 F.3d 7, 13 (D.C. Cir. 2005) (encouraging the
district court in that case to “undertake the evidentiary hearing
itself in order to minimize the potential for delay”). The District
Court could also remand the case to the hearing officer to either
supplement the record or even hold a de novo hearing. See Reid
ex rel. Reid v. District of Columbia, 401 F.3d 516, 526 (D.C.
Cir. 2005); Branham, 427 F.3d at 13. The District Court
therefore erred in concluding “DCPS’s failure to provide a full
transcript or recording of the April 23, 2003 due process hearing
constituted a denial of FAPE.” Kingsmore, 393 F. Supp. 2d at
33. The judgment of the District Court is accordingly vacated
and the case is remanded.
4
Pursuant to D.C. Circuit Rule 36(a)(2)(F), this disposition
will be published. The clerk is directed to withhold issuance of
the mandate herein until seven days after resolution of any
timely petition for rehearing or rehearing en banc. See FED. R.
APP. P. 41(b); D.C. CIR. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk