Kelsey v. District of Columbia , 85 F. Supp. 3d 327 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMBER KELSEY,
Plaintiff,
Civil Action No. 13-1956 (BAH)
v.
Judge Beryl A. Howell
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
The plaintiff, Amber Kelsey, brings this action under the Individuals with Disabilities
Education Act, as amended, 20 U.S.C. §§ 1400 et seq. (“IDEA”), against the District of
Columbia seeking a reversal of a Hearing Officer Determination (“HOD”) issued on July 18,
2013, by the District of Columbia Office of the State Superintendent of Education, Office of
Review and Compliance, Student Hearing Office. The HOD awarded the plaintiff 96 hours of
speech-language services by a certified speech pathologist as compensatory education services
for the District of Columbia Public Schools’ (“DCPS”) failure to provide a free appropriate
public education (“FAPE”) between March 19, 2007 and June 2008. 1 See Administrative
Record (“AR”) at 20, ECF No. 16-1. 2 Pending before the Court are the plaintiff’s Motion for
Summary Judgment, ECF No. 24, and the defendant’s Cross Motion for Summary Judgment,
ECF No. 27. The Magistrate Judge to whom these motions were referred submitted a report
recommending that the plaintiff’s motion be denied and the defendant’s motion be granted. See
1
The finding that the defendant failed to provide a FAPE was addressed in Clay v. District of Columbia,
Memorandum and Order, No. 09-1612 (D.D.C. April 24, 2013), ECF No. 59.
2
The Administrative Record in this case consists of a total of 1335 pages and is docketed in 27 parts at ECF Nos.
16–18.
1
Report and Recommendation (January 13, 2015), ECF No. 32. The plaintiff has objected to the
report in its entirety. See Pl.’s Objections to the Report and Recommendations of the Magistrate
Judge (“Pl.’s Obj.”), ECF No. 33. For the reasons explained below, the Court adopts the Report
and Recommendation. Accordingly, the plaintiff’s Motion for Summary Judgment is denied and
the defendant’s Cross-Motion for Summary Judgment is granted.
I. BACKGROUND
The background of the present dispute has been described in the Report and
Recommendation and by this Court in its prior decision in Clay v. District of Columbia,
Memorandum and Order, No. 09-1612 (D.D.C. April 24, 2013), ECF No. 59. Previously, this
Court ruled that the plaintiff “was denied a FAPE by the defendant during the period between
March 19, 2007 and June 2008 because of the denial of speech therapy.” Id. at 32. Specifically,
“the defendant failed to implement [the plaintiff’s] 2007 [Individualized Education Program],
which required speech therapy for [the plaintiff].” Id. The case was remanded to a Hearing
Officer to conduct “fact finding to establish the amount of speech and language therapy or other
specialized instruction [the plaintiff] was deprived in the period between March 19, 2007 and
June 2008, and determine the level of compensatory education services [she] requires to place
her in the same position she would have been but for DCPS’ IDEA violations during the period
at issue.” Id. at 33. The Hearing Officer was instructed that any award “must at least
compensate [the plaintiff] for the 11.6 hours of speech therapy that the DCPS concedes that [the
plaintiff] was deprived.” Id. at 43.
A. Hearing
Upon remand, on June 12, 2013, a Hearing Officer for the District of Columbia, Office of
the State Superintendent of Education, conducted a hearing to decide three issues:
2
A. What was the appropriate level of speech/language services that [the plaintiff]
should have received at [Rock Creek Academy] between March 19, 2007 and
June 2008?
B. What was the amount of speech and language therapy and other
speech/language specialized instruction, as to which [the plaintiff] was
deprived in the period between March 19, 2007 and June 2008?
C. What is the level of compensatory education services that [the plaintiff]
requires to place her in the same position she would have been . . . but for
DCPS’ IDEA violations during the period between March 19, 2007 and June
2008?
AR at 5–6. At the hearing, the plaintiff offered the testimony of the plaintiff’s
grandmother, Annie Clay, see AR at 1028, and an expert, Jay Lucker, see AR at 1100. 3
The defendant offered the testimony of Valerie Lobban, see AR at 1221, a special
education coordinator, and Marva McIntosh, see AR at 1239, a speech and language
pathologist. At the conclusion of the hearing, the defendant moved for a directed finding
that the plaintiff was entitled to only 11.6 hours of compensatory education—the bare
minimum required under this Court’s original order. AR at 7. The Hearing Officer
denied the defendant’s motion and took the matter under advisement. Id.In his 18-page opinion, the Hearing Officer first addressed the level of specialized
speech services that the plaintiff should have received between March 19, 2007 and June
2008. 4 The Hearing Officer noted that while the plaintiff’s September 2006
Individualized Education Program (“IEP”) did not include a recommendation for speech-
language services, plaintiff’s September 2007 IEP recommended half-an-hour of speech
3
The Hearing Officer was scheduled to hear the testimony of the plaintiff, see AR at 1019, but the plaintiff failed to
attend the hearing.
4
Since an IEP is reviewed “prospectively” and “not in hindsight,” the Hearing Officer focused primarily on the
information available to the plaintiff’s IEP teams during the period between March 2007 and June 2008 to determine
the level of services the plaintiff should have received during that time period. AR at 15.
3
services per week. 5 AR at 13–14. Nonetheless, the Hearing Officer concluded that the
plaintiff’s “September 20, 2007 IEP was not reasonably calculated to provide [the
plaintiff with] educational benefits,” because an August 2007 speech-language evaluation
recommended that the plaintiff receive one hour of speech services per week. Id. at 14.
The Hearing Officer also heard testimony from the plaintiff’s expert, who opined that the
plaintiff should have received five hours per week of speech-language services in order to
help the plaintiff return to near grade-level. Id. The Hearing Officer discounted the
expert’s opinion, however, reasoning that the IDEA does not require a school to design
an IEP to bring a child to near grade level, only to be reasonably calculated to provide
some educational benefit. Id. at 14–15 After weighing the evidence, the Hearing Officer
found that “the preponderance of evidence establishes that . . . the provision of 60
minutes per week of speech-language services, as recommended by . . . [the] August
2007 evaluation . . . would have been reasonably calculated to provide [the plaintiff]
educational benefits.” Id. at 15. The Hearing Officer also noted that this finding was
consistent with the plaintiff’s September 15, 2008 IEP, which also provided for the
plaintiff to receive one hour of speech-language services. Id.Next, the Hearing Officer determined that the plaintiff’s school was in session for
sixty-four weeks between March 19, 2007 and June 2008, which amounted to the denial
of sixty-four hours of speech language services. Id. at 15–16. Rather than conclude the
inquiry, and award sixty-four hours of speech-language services, the Hearing Officer
examined the evidence to determine the level of compensation services necessary to place
the plaintiff in the position she would have been but for the defendant’s IDEA violations.
5
The failure by the defendant to provide these services resulted in the Court’s prior finding that the defendant had
failed to provide the plaintiff a FAPE.
4
The Hearing Officer credited the testimony of the plaintiff’s expert, who noted that due to
the plaintiff’s “likely frustration,” “resistance to learning,” and the need to build
confidence, would now require 1.5 hours of services for every hour of services missed
previously. Id. at 17. Accordingly, rather than provide a compensatory award linked
only to the number of hours the plaintiff was denied a FAPE, the Hearing Officer
awarded the plaintiff 96 hours of speech language services (or 1.5 hours for each of the
64 hours otherwise missed). Id. at 20. The total award was approximately eight times
the number of hours sought by the defendant. The compensatory education services to be
provided include “instruction in phonemic awareness, general language comprehension,
reading comprehension, sound-symbol association and such other speech-language
deficits as may be decided appropriate by the provider and [the plaintiff].” Id.B. Report and Recommendation
The Magistrate Judge’s Report and Recommendation would affirm the Hearing Officer,
deny the plaintiff’s motion for summary judgment, and grant the defendant’s cross-motion for
summary judgment. See Report and Recommendation. The Magistrate Judge determined that
the Hearing Officer provided “a detailed, thorough analysis” of the case and the applicable issues
and that his decision warranted “due weight.” Id. at 11–12. Moreover, the Magistrate Judge
found that the Hearing Officer appropriately focused on assessments and reports from the period
at issue (March 2007 through June 2008). See id. at 13 (“[T]he Hearing Officer properly limited
the scope of his review.”). Similarly, the Magistrate Judge agreed with the Hearing Officer’s
decision to discount the plaintiff’s expert’s recommendation of five hours per week of speech-
language services, stating that the recommendation “while ideal, ultimately, went too far” and
was not required. Id. at 14. In total, the Magistrate Judge concluded that the Hearing Officer’s
5
“determination was . . . reasonably calculated to compensate [the plaintiff] based on the evidence
presented at the . . . hearing” and that the plaintiff “has failed to discharge ‘the burden of
persuading the court that the [H]earing [O]fficer was wrong.’” Id. at 12, 15 (citing Patterson v.
District of Columbia, 965 F. Supp. 2d 126, 130 (D.D.C. 2013)).
II. LEGAL STANDARD
A. De Novo Review of Magistrate Judge’s Report and Recommendation
When, as here, the Court has referred a case for full case management, the Magistrate
Judge determines all motions and matters that arise in the case, except for those matters specified
in Local Civil Rule 72.3, for which the Magistrate Judge will report proposed findings of fact
and a recommendation for disposition. LCvR 72.3. This Local Civil Rule is consistent with
Federal Rule of Civil Procedure 72(b), which provides for the referral of a pretrial matter
“dispositive of a claim or defense” to a Magistrate Judge to hear and make a “recommended
disposition.” FED. R. CIV. P. 72(b); see also LCvR 72.3(a)(3) (“At the request of the district
judge to whom the case is assigned, a magistrate judge may . . . submit . . . proposed findings of
fact and recommendations for the disposition of . . . motions for summary judgment . . . .”).
Upon submission of the Magistrate Judge’s recommended disposition, a “district judge shall
make a de novo determination of those portions of a magistrate judge’s findings and
recommendations to which [an] objection is made,” based upon the record before the Magistrate
Judge or based upon further evidence that the district judge may receive in a new hearing. LCvR
72.3(c). In this case, the plaintiff has filed objections to the report and its recommendations in its
entirety, and this Court will thus review the Report and Recommendation de novo.
B. Summary Judgment Standard of Review of IDEA Hearing Officer Decision
The parties in this case are seeking cross-motions for summary judgment based upon the
6
administrative record available to an IDEA Hearing Officer. 6 The IDEA “‘establishes various
procedural safeguards that guarantee parents both an opportunity for meaningful input into all
decisions affecting their child’s education and the right to seek review of any decisions they
think inappropriate.’” District of Columbia v. Doe, 611 F.3d 888, 890 (D.C. Cir. 2010) (quoting
Honig v. Doe, 484 U.S. 305, 311–12, (1988)). Any party aggrieved by a decision of a Hearing
Officer under the IDEA may appeal the findings and decision to any state court or a United
States district court. 20 U.S.C. § 1415(i)(2). The party challenging the administrative decision
has the burden of proving deficiencies in the administrative decision by a preponderance of the
evidence. 20 U.S.C. § 1415(i)(2)(C)(iii). When evaluating an appeal of an administrative
decision, a 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). “Federal courts have interpreted ‘appropriate relief’ to include compensatory
education as an equitable remedy to be granted upon finding that a child has been denied FAPE
under the Act.” Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, 30 (D.D.C. 2006)
(quoting Diatta v. District of Columbia, 319 F. Supp. 2d 57, 64 (D.D.C. 2004)).
Although seeking judicial review of an administrative agency’s decision by way of a
summary judgment motion “is permissible under the IDEA, it is not a true summary judgment
procedure. Instead, the district court essentially conduct[s] a bench trial based on a stipulated
record.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993); see also S.B. v.
District of Columbia, 783 F. Supp. 2d 44, 50 (D.D.C. 2011) (“As no new evidence has been
submitted here, the Court will treat the parties’ cross motions for summary judgment as motions
6
As discussed below, the plaintiff attempted to supplement the administrative record with additional evidence,
which was denied by the Magistrate Judge upon full briefing. See Mem. Op. & Order, ECF No. 25.
7
for judgment based on the administrative record.”). In other words, rather than applying the
typical standard applicable to a summary judgment motion, which may be granted “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011), the
Court in an IDEA case conducts a summary adjudication, Phillips v. District of Columbia, 736 F.
Supp. 2d 240, 246 (D.D.C. 2010) (“If no additional evidence is introduced by the parties in a
civil suit seeking review of an administrative decision, a motion for summary judgment operates
as a motion for judgment based on the evidence comprising the record.”) (alterations and internal
quotation marks omitted) (quoting Thomas v. District of Columbia, 407 F. Supp. 2d 102, 109
(D.D.C. 2005)); District of Columbia v. Ramirez, 377 F. Supp. 2d 63, 66–67 (D.D.C. 2005).
The court must resolve factual disputes based upon its own de novo review of the record
and evaluation of the preponderance of the evidence, giving “due weight” to the findings of the
IDEA Hearing Officer, depending upon the thoroughness and reasonableness of the
administrative proceedings. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206 (1982); Doe, 611 F.3d at 897; see also Roark ex rel. Roark v. District of
Columbia, 460 F. Supp. 2d 32, 38 (D.D.C. 2006).
III. DISCUSSION
“‘Compensatory education involves discretionary, prospective, injunctive relief crafted
by a court to remedy what might be termed an educational deficit created by an educational
agency’s failure over a given period of time to provide a FAPE to a student.’” Reid ex rel. Reid v.
District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005) (quoting G. ex rel. RG v. Fort Bragg
Dependent Schs., 343 F.3d 295, 308 (4th Cir.2003)). “Under the theory of ‘compensatory
8
education,’ courts and hearing officers may award ‘educational services . . . to be provided
prospectively to compensate for a past deficient program.’” Reid, 401 F.3d at 522 (quoting Fort
Bragg Dependent Schs., 343 F.3d at 308). “[T]he ultimate award must be reasonably calculated
to provide the educational benefits that likely would have accrued from special education
services the school district should have supplied in the first place.” Reid, 401 F.3d at 524. A
compensatory award cannot be the result of a “cookie cutter approach” that presumes “that each
hour without FAPE entitles the student to one hour of compensatory instruction.” Id. at 523.
Instead, there must be a “qualitative, fact-intensive” inquiry “tailored to the unique needs of the
disabled student.” Branham v. District of Columbia, 427 F.3d 7, 9 (D.C. Cir. 2005) (citing Reid,
401 F.3d at 524). Relief under the IDEA depends upon “equitable considerations” and requires
the court “‘to mould each decree to the necessities of the particular case.’” Reid, 401 F.3d at523–24 (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)).
The plaintiff contends that the Hearing Officer failed to consider relevant probative
evidence and instead substituted a one-sentence “ipse dixit” in favor of the individualized
assessment required under Reid. See Pl.’s Obj. at 3, 13. Specifically, the plaintiff argues that the
Hearing Officer arbitrarily selected and ignored relevant evidence and improperly discounted the
testimony of her expert witness that the plaintiff should have been entitled to five hours of
speech-language services per week from March 19, 2007 through June 2008. 7 As a result,
7
The plaintiff also argues that the Hearing Officer did not appropriately consider the evidence in the record that the
plaintiff required specialized reading instruction and improperly failed to receive supplemental testimony regarding
compensatory reading instruction. See Pl.’s Obj. at 5. The plaintiff thus argues that she was both unlawfully
prevented from introducing evidence of the need for reading instruction at the hearing, and that the evidence
presented at the hearing regarding the need for reading instruction warrants additional compensatory services. As an
initial point, the Court agrees with the Magistrate Judge that the Hearing Officer’s decision not to permit the plaintiff
to supplement the record was appropriate. See Mem. Op. & Order, ECF No. 25 (discussing failure by plaintiff’s
counsel to present evidence relating to the plaintiff’s need for the services of a reading specialist). The plaintiff’s
alternative argument, that the evidence in the record establishes the need for compensatory reading instruction (in
addition to speech-language services) fares no better. See Pl.’s Obj. at 26. The plaintiff’s argument merely rehashes
her complaints with the decision by the Hearing Officer to discount the testimony of Dr. Lucker. As discussed,
9
according to the plaintiff, the Hearing Officer is entitled to no deference and the Magistrate
Judge was required to conduct a full independent examination of the record and apply the Reid
standard. Consequently, the plaintiff objects to the Report and Recommendation in its entirety.
The plaintiff is mistaken, however. As explained in the Report and Recommendation, the
Hearing Officer reasonably considered and assessed the probative evidence in order to craft a
remedy individually tailored to compensate the needs of this plaintiff.
A. The Hearing Officer Appropriately Assessed the Probative Evidence
The Hearing Officer conducted a thorough and reasonable analysis of the evidence and
his conclusion that the “preponderance of evidence establishes that . . . the provision of 60
minutes per week of speech-language services . . . would have been reasonably calculated to
provide [the plaintiff] educational benefits” is entitled to due weight. AR at 15.
Contrary to the plaintiff’s contention, the Hearing Officer did not exclude any evidence
from consideration but instead focused his inquiry on the evidence relating to the period from
March 2007 through June 2008, the period of time during which the plaintiff was denied a
FAPE. Although the plaintiff faults the Hearing Officer for not explicitly consider the plaintiff’s
test scores from November 2006, AR at 113–123, and January 2008, AR at 166–177, when
making his award, those test scores did not provide a recommendation regarding the specific
educational services to be provided to the plaintiff. 8 As such, the relative probative value of
however, the Hearing Officer acted reasonably in discounting such evidence. Moreover, the Hearing Officer did
award relief specifically targeting the plaintiff’s reading difficulties. See AR at 20 (awarding the plaintiff 96 hours
of speech-language services to include instruction relating to “reading comprehension”).
8
Moreover, while the test scores are highly probative of the plaintiff’s education level during the relevant period,
there was no dispute between the parties that the plaintiff was significantly below grade level during the relevant
period. In passing, the plaintiff also laments the Hearing Officer’s failure to consider evaluations and reports from
2000-2003, but does not expand on this argument. See Pl.’s Obj. at 14. Nonetheless, the Hearing Officer was
within reason to conclude that such earlier reports were too attenuated to be probative and were otherwise
overshadowed by other probative evidence. See AR at 13–15 (focusing assessment on assessments and evaluations
from March 2007 through June 2008).
10
those test scores was less than that of the plaintiff’s August 2007 speech-language evaluation,
which specifically tested the plaintiff and recommended one hour of speech-language services
per week. See AR at 124–128 (“[T]his examiner recommends direct speech-language
intervention for 60 minutes a week.”).
Likewise, the Hearing Officer did not arbitrarily and exclusively rely on the plaintiff’s
August 2007 speech-language evaluation and September 15, 2008 IEP. As an initial matter, an
evaluation and recommendation by a speech language pathologist during the relevant time period
is highly probative of the services the plaintiff should have received during that same period of
time. Moreover, the Hearing Officer specifically compared the recommendation contained in the
August 2007 speech-language evaluation against other probative evidence. Indeed, the Hearing
Officer expressly noted the inconsistencies between the level of services to be provided in the
plaintiff’s September 20, 2007 IEP (one-half hour per week) and the level of services
recommended by the plaintiff’s August 2007 speech-language evaluation (one hour per week).
AR at 14. As a result, the Hearing Officer rejected the plaintiff’s September 20, 2007 IEP and
instead adopted the one-hour per week recommendation of the August 2007 speech-language
evaluation. Id. Such analysis was not arbitrary but considered.
The plaintiff also faults the Hearing Officer for considering the plaintiff’s September 15,
2008 IEP, which provided for one-hour of speech-language services per week, but not
considering the plaintiff’s subsequent October 23, 2008 IEP, which increased the increased the
number of speech-language services to three hours per week. 9 The October 23, 2008 IEP was
9
The plaintiff also argues that the September 15, 2008 IEP is not in the record and should not have been considered
by either the Hearing Officer or the Magistrate Judge. See Pl.’s Obj. at 14. While the IEP itself is not in the record,
the recommendations of the September 15, 2008 IEP can be found in the plaintiff’s October 23, 2008 IEP, which is
admitted in the record. See AR at 181 (“At [the plaintiff’s] IEP meeting on [September 15, 2008], her speech and
language services were increased to 60 minutes per week.”).
11
considered by the Hearing Officer, however. See AR at 14 (“[T]he .5 hours per week of speech
therapy listed in the IEP . . . was one-sixth the level of speech language services provided in [the]
October 23, 2008 IEP.”). Nonetheless, the Hearing Officer concluded that based on the
information available to him from the relevant time period, the provision of one-hour of speech-
language services would be reasonably calculated to provide the plaintiff with educational
benefit. This conclusion was supported by the evidence, in a reasoned decision, and is entitled to
due weight.
Finally, the plaintiff argues that the Hearing Officer improperly discounted the testimony
of the plaintiff’s expert, Dr. Lucker. Dr. Lucker testified that “in order to make up for the four
years behind or to get to the seventh-grade level, [the plaintiff] would have needed [one] hour a
day five days a week of speech language services.” AR at 1170. The Hearing Officer
“discount[ed] this opinion because [Dr. Lucker] applied an incorrect standard.” AR at 14. The
IDEA was designed “to open the door of public education to handicapped children on
appropriate terms” and not “to guarantee any particular level of education once inside.” Rowley,
458 U.S. at 192; see also Kerkam v. McKenzie, 862 F. 2d 884, 886 (D.C. Cir. 1989) (“[P]roof
that loving parents can craft a better program than a state offers does not, alone, entitle them to
prevail under the Act.”); Carlisle Area School v. Scott P. ex rel. Bess P., 62 F.3d 520, 532 (3d
Cir. 1995) (“[T]he district need not provide the optimal IEP . . . .” (emphasis in original)); see
also N.T. v. District of Columbia, 839 F. Supp. 2d 29, 33 (D.D.C. 2012) (“While the District of
Columbia is required to provide students with a public education, it does not guarantee any
particular outcome or any particular level of education.”). Rowley requires the provision of an
educational environment “reasonably calculated to enable the child to receive educational
benefits.” 458 U.S. at 207. Dr. Lucker’s opinion, by contrast, more closely approximates “the
12
potential-maximizing standard that Rowley forbids.” Kerkam, 862 F.2d at 889; see also A.I. ex
rel. Iapalucci v. District of Columbia, 402 F. Supp. 2d 152, 167 (D.D.C. 2005) (“[A] court must
not focus on whether the DCPS is maximizing [a plaintiff’s] potential through its proposed . . .
IEP; rather, the appropriate focus of the court's review should be on whether DCPS is providing
[the plaintiff] with an IEP that is reasonably calculated to produce meaningful educational
benefit.”). The Hearing Officer acted properly in discounting the opinion of the plaintiff’s expert
regarding the services that should have been provided by DCPS between March 19, 2007 and
June 2008. 10
Consistent with the Report and Recommendation, the plaintiff has failed in her burden of
“persuading the court that the Hearing Officer was wrong.” Reid, 401 F.3d at 521 (internal
quotations omitted).
B. The Compensatory Award Complies with Reid
The plaintiff also asserts that the Hearing Officer failed to comply with the requirements
of Reid, and instead made a compensatory award in a single sentence “ipse dixit.” See Pl.’s Obj.
at 13. Reid rejected a “cookie cutter approach” that presumes “that each hour without FAPE
entitles the student to one hour of compensatory instruction,” 401 F.3d at 523, in favor of a
“qualitative, fact-intensive” inquiry “tailored to the unique needs of the disabled student.”
Branham, 427 F.3d at 9 (discussing Reid). In the present case, the Hearing Officer made the
appropriate individualized determination. Rather than merely awarding the plaintiff an hour for
each hour that she was denied a FAPE, the Hearing Officer sought to “place [the plaintiff] in the
same position [she] would have occupied but for the school district's violations of IDEA.” Reid,
401 F.3d at 518. Based on the testimony of the plaintiff’s expert, the Hearing Officer concluded
10
Importantly, the Hearing Officer did not fail to consider Dr. Lucker’s testimony altogether, which is still generally
probative of the level of education services needed by the plaintiff. See AR at 14.
13
that the plaintiff would need “1.5 hours of services for every hour of services she missed,
provided by a professional speech language therapist who has experience with working with
older students.” AR 17. In addition to reviewing (and accepting) the testimony of the plaintiff’s
expert, the Hearing Officer also noted that subsequent evaluations continued to increase the
number of hourly services recommended for the plaintiff, further suggesting increased
difficulties by the plaintiff in learning the material. 11 Id. In short, the Hearing Officer rejected a
cookie-cutter approach, and instead evaluated the expert testimony and the probative evidence to
determine how to place this specific plaintiff in the position she would have occupied but for the
failure of DCPS to provide a FAPE. Consistent with the Report and Recommendation, the
Hearing Officer’s determination complied with Reid. The plaintiff has again failed in her burden
of “persuading the court that the Hearing Officer was wrong.” Reid, 401 F.3d at 521 (internal
quotations omitted).
IV. CONCLUSION
For the foregoing reasons, and consistent with the Report and Recommendation, the
plaintiff’s motion for summary judgment is denied and the defendant’s cross-motion for
summary judgment is granted. An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A. Howell, United
States District Court Judge, U.S. District Court for
Date: March 30, 2015 the District of Columbia
DN: cn=Hon. Beryl A. Howell, United States District
Court Judge, U.S. District Court for the District of
Columbia, o, ou,
email=Howell_Chambers@dcd.uscourts.gov, c=US
__________________________
Date: 2015.03.30 17:31:27 -04'00'
BERYL A. HOWELL
United States District Judge
11
Although the plaintiff continued to be afforded increased educational services, the Hearing Officer also noted that
the plaintiff “has a dismal school attendance record, which undoubtably has negatively affected her academic
performance.” AR at 18.
14