Ward v. District of Columbia ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
CHANTEL WARD, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-CV-0098 (KBJ)
)
DISTRICT OF COLUMBIA, )
Defendant. )
)
_________________________________ )
OPINION ADOPTING
REPORT & RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff Chantel Ward (“Ward”), an adult student, brought this action appealing
a Hearing Officer’s dismissal of her administrative claim under the Individuals with
Disabilities Education Act (“IDEA”). Ward’s administrative claim challenged the
decision of the District of Columbia Public School System (“DCPS”) to transfer Ward
from one private school (Monroe) to another (Kingsbury) on the ground that the transfer
did not comply with her individualized education program and was not the least
restrictive environment available for her education. Accordingly, Ward alleges that she
was denied a free and appropriate public education, and seeks an order that both
reverses the administrative decision to transfer her and grants funding for her placement
at Monroe.
Ward first brought an administrative complaint regarding the transfer on August
20, 2012. The Hearing Officer held an administrative hearing on October 26, 2012, and
issued a decision denying Ward’s request on November 3, 2012. On January 23, 2013,
Ward filed a complaint in this Court. (ECF No. 1.) This case was referred to a
1
Magistrate Judge for full case management on January 24, 2013 (ECF No. 3), and on
March 5, 2013, Ward filed an amended complaint. (ECF No. 9.) On April 30, 2013,
Ward filed a motion for summary judgment (ECF No. 13), and Defendant filed a cross-
motion for summary judgment on May 28, 2013 (ECF No. 15).
On December 23, 2013, Magistrate Judge Deborah A. Robinson issued a Report
and Recommendation (ECF No. 21, attached hereto as Appendix A) with respect to the
parties’ cross motions for summary judgment. The Report and Recommendation
reflects Magistrate Judge Robinson’s opinion that Ward’s motion for summary
judgment should be denied, and that Defendant’s Motion for summary judgment should
be granted. Report and Recommendation at 2. The Report and Recommendation also
advised the parties that either party may file written objections to the Report and
Recommendation, which must include the portions of the findings and recommendations
to which each objection is made and the basis for each such objection. Id. at 17. The
Report and Recommendation further advised the parties that failure to file timely
objections may result in waiver of further review of the matters addressed in the Report
and Recommendation. Id.
Under this court’s local rules, any party who objects to a Report and
Recommendation must file a written objection with the Clerk of the Court within 14
days of the party’s receipt of the Report and Recommendation. LCvR 72.3(b). As of
this date—over a month after the Report and Recommendation was issued—no
objections have been filed.
The Court has reviewed Magistrate Judge Robinson’s report and will ADOPT
the Report and Recommendation in its entirety. Accordingly, the Court will DENY
2
Plaintiff’s motion for summary judgment and GRANT Defendant’s motion for summary
judgment. A separate order consistent with this opinion will follow.
DATE: January 24, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
3
APPENDIX A
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHANTEL WARD,
Plaintiff,
Civil Action No. 13-0098
v. KBJ/DAR
DISTRICT OF COLUMBIA,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Chantel Ward commenced this action against the District of Columbia, pursuant
to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et. seq., alleging
that it failed to provide her with an appropriate educational placement, and seeking reversal of an
administrative hearing officer determination that denied her request for relief. Amended
Complaint for Declaratory Judgment & Inju[n]ctive and Other Relief (“Amended Complaint”)
(Document No. 9).1 This action was referred to the undersigned United States Magistrate Judge
for full case management, including a report and recommendation on dispositive motions.
Referral to Magistrate Judge Order (Document No. 3). Pending for consideration by the
undersigned are Plaintiff[’s] Motion for Summary Judgment (Document No. 13) and Defendant’s
Cross-Motion for Summary Judgment (Document No. 15). Upon consideration of the parties’
motions, the memoranda in support thereof and opposition thereto, the administrative record and
1
Plaintiff originally filed her Complaint for Declaratory Judgment & Inju[n]ctive and Other Relief
(Document No. 1) on January 23, 2013; however, at the initial scheduling conference, the undersigned ordered that
she file an amended complaint to correct a typographical error in the request for relief, see Scheduling Order
(Document No. 10).
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W ard v. District of Columbia 2
the entire record herein, the undersigned will recommend that the court deny Plaintiff’s motion
for summary judgment and grant Defendant’s cross-motion for summary judgment.
BACKGROUND
Plaintiff Chantel Ward is an adult student, residing in the District of Columbia, who has
been identified as having a “specific learning disability” that requires special education services.
Amended Complaint ¶¶ 5-6, 8-9; Administrative Record (Document No. 12) at 45. Plaintiff’s
individualized education program (“IEP”) requires that she receive 26 hours per week of
specialized instruction, 30 minutes per week of behavioral support services, and one hour per
week of speech-language pathology services. Id. at 47. With respect to the least restrictive
environment (“LRE”) provision, Plaintiff’s IEP prescribes that she receive a full-time out of
general education setting to receive specialized instruction in the areas of reading, math, and
written expression.2 Id. District of Columbia Public Schools (“DCPS”) began funding
Plaintiff’s attendance at Monroe School, a private full-time special education school, after the
parties executed a settlement agreement in December 2010 to resolve a previous administrative
complaint. Id. at 45. Prior to that, Plaintiff attended the Cesar Chavez Public Charter School for
both the 2009-2010 and 2010-2011 school years. Id. at 45, 57; Amended Complaint ¶ 8. At
Cesar Chavez, Plaintiff struggled with school and had to repeat ninth grade twice. Id. at 45.
2
The hearing officer, and the parties, characterize the “setting” which Plaintiff requires, as established by
the LRE provision of her IEP, as “full-time placement out of the general education [setting].” See Administrative
Record at 47; see also id. at 43 n.2. The phrase “least restrictive environment” refers to the IDEA’s requirement that
“[t]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or
other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other
removal of children with disabilities from the regular educational environment occurs only when the nature or
severity of the disability of a child is such that education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A).
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While attending Monroe, she “has made academic and emotional progress” and “is more focused
and interested in school.” Id. at 46. In October 2012, the director of Monroe concluded that
Plaintiff was “on the cusp” of 11th grade and 12th grade. Hearing Transcript, Case No. 2012-
0561 (Oct. 26. 2012) (“Tr.”) (Document No. 11-1) at 156:1-5.
At an IEP meeting conducted in December 2011, DCPS proposed a transfer from Monroe
to a special education program at a DCPS public school, Spectrum at Coolidge Senior High
School, and issued a prior written notice for that transfer. Administrative Record at 47, 121-22.
Plaintiff objected to this proposed transfer by filing a due process complaint. Id. at 47. The
assigned hearing officer determined that DCPS could not transfer Plaintiff because it “failed to
follow required procedures in making the change in placement . . . .” Id. at 48, 327-334.
Thereafter, at an IEP meeting conducted in May 2012, DCPS proposed a transfer to High
Road School, a private full-time special education school. Id. at 48. DCPS sought to move
Plaintiff due to concerns regarding teacher certification and the implementation of Plaintiff’s IEP
at Monroe. Id. at 80-81. Plaintiff’s counsel suggested Kingsbury School, another private special
education school, opining that it may be more appropriate for Plaintiff. Id. at 48, 82. After
Kingsbury accepted Plaintiff for attendance, DCPS issued a prior written notice proposing a
change in location of services from Monroe to Kingsbury for the 2012-2013 school year. Id. at
48, 84-86. When Plaintiff visited Kingsbury, however, she determined that she did not like it.
Id. at 48. Plaintiff filed a due process complaint on August 20, 2012, challenging the proposed
transfer to Kingsbury, and seeking an order requiring DCPS to continue funding her placement
at, and transportation to, Monroe or another “11-month full-time out of general education
program.” Id. at 3-9.
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W ard v. District of Columbia 4
A hearing officer conducted an administrative hearing on October 26, 2012, at which he
considered “[w]hether DCPS’ proposal to move the student from [Monroe] at the May 14, 2012
IEP team meeting and to Kingsbury pursuant to the August 8, 2012 prior written notice is a
change in placement and/or a move to an inappropriate educational setting such that it results in a
denial of a free and appropriate public education (‘FAPE’).” Id. at 42, 45. The hearing officer
heard testimony from Plaintiff; Plaintiff’s mother; Dr. Carolyn Gravely-Moss, the director of
Monroe’s counseling services; Ruth Logan-Staton, the director of Monroe; Erika Johnson, a case
manager in DCPS’ Office of Special Education; and Candi CdeBaca and Jennifer Switlick,
student progress monitors for DCPS. Tr. at 3; Administrative Record at 57.
Following the hearing, in a written decision issued on November 3, 2012, the hearing
officer dismissed Plaintiff’s complaint with prejudice, concluding that Plaintiff “failed to meet
her burden of proof that DCPS’ change of [her] school from [Monroe] to Kingsbury is a change
in placement or that Kingsbury is unable to implement [her] IEP or that it is a lesser restrictive
environment or cannot meet [her] unique needs.” Administrative Record at 53. More
specifically, the hearing officer found that “[t]here is no evidence in the record that [Plaintiff’s]
IEP or LRE was changed at the May 14, 2012, meeting” and that “[t]he evidence demonstrates
that at Kingsbury the student can receive services in a full time out of general education setting,
with small classes and individualized instruction and receive the prescribed related services.” Id.
at 52. Plaintiff then commenced this action pursuant to the IDEA seeking reversal of the hearing
officer’s determination.
CONTENTIONS OF THE PARTIES
Plaintiff contends that Kingsbury is an inappropriate placement because “it offers a 10-
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W ard v. District of Columbia 5
month program while [Plaintiff] requires 11 months to progress,” and because relocation “would
likely result in significant academic regression.” Plaintiff[’s] Memorandum of Points and
Authorities in Support of Plaintiff[’s] Motion for Summary Judgment (“Plaintiff’s
Memorandum”) (Document No. 13) at 7. Plaintiff submits that she has made significant progress
while at Monroe, after a period of “serious educational failure and regression” at Cesar Chavez,
and that she is close to graduating. Id. at 8-9. Plaintiff relies on Holmes v. District of Columbia,
680 F. Supp. 40 (D.D.C. 1988), for the proposition that “movement of a student from one
placement to another has been found inappropriate where the student had adjusted to the prior
placement and had made educational progress.” Id. at 7-8. Plaintiff thus contends that a transfer
to Kingsbury is inappropriate because it is “likely to produce regression, delay her graduation,
and undermine the educational progress that she has made . . . .” Id. at 12-13.
Defendant contends that “the hearing officer correctly decided that DCPS did not change
the student’s educational placement; rather, DCPS proposed to move the student from one
private special education school to another private special education school that is able to
implement the student’s [IEP] in the setting prescribed by her IEP.” Memorandum of Points and
Authorities in Support of Defendant’s Cross-Motion for Summary Judgment and Opposition to
Plaintiff’s Motion for Summary Judgment (“Defendant’s Memorandum”) (Document Nos. 14,
15) at 3. Defendant avers that Plaintiff’s case “is premised on an inaccurate use [of] the term
‘placement,’” id. at 16, and maintains that Kingsbury can fully implement Plaintiff’s IEP and can
offer services to aid in her transition, id. at 25-26, 28-29. Defendant notes its concerns regarding
the certification of teachers at Monroe, id. at 22-23, its documentation of Plaintiff’s course work
and progress, id. at 24, and its implementation of Plaintiff’s IEP, id. at 24-25. Defendant thus
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W ard v. District of Columbia 6
contends that it sought to transfer her in order to “ensure that [she] received a FAPE at a school
that was capable of implementing her IEP . . . .” Id. at 22.
In response, Plaintiff maintains that her situation is analogous to the student in Holmes,
because she is close to graduating and would likely regress if transferred, and that the court
should thus conclude that transferring her to Kingsbury would be inappropriate. Plaintiff[’s]
Memorandum of Points and Authorities in Opposition to the Defendant’s Cross Motion for
Summary Judgment and in Reply to the Defendant’s Opposition to the Plaintiff’s Motion for
Summary Judgment (“Plaintiff’s Opposition”) (Document Nos. 17, 18) at 2-4. Plaintiff also
contends that Defendant’s concerns about Monroe are “incorrect” and “irrelevant in light of the
progress” that Plaintiff has made while attending Monroe School. Id. at 4-8.
Defendant reiterates that “DCPS has not changed [Plaintiff’s] educational placement, and
the record evidence does not prove by a preponderance of evidence that there has been any denial
of FAPE . . . .” Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Cross-Motion for
Summary Judgment (“Defendant’s Reply”) (Document No. 20) at 6. Defendant submits that
Plaintiff’s reliance on Holmes is misplaced, and points to other decisions in support of its
contention that courts distinguish between a change in educational placement and a change in
location of services. Id. at 2-5. Finally, Defendant contends that even if the court “construe[d]
Plaintiff’s claim of harm related to the transition as a claim for failure to implement her IEP,”
there is not sufficient evidence in the record to support a finding that Plaintiff will be harmed by
the transfer to Kingsbury. Id. at 5-6.
APPLICABLE STANDARDS
Individuals with Disabilities Education Act
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W ard v. District of Columbia 7
One of the stated purposes of the IDEA is “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[.]” 20 U.S.C. § 1400(d)(1)(A). In general, “[a] free
appropriate public education is available to all children with disabilities residing in the State
between the ages of 3 and 21 . . . .” § 1412(a)(1)(A). To ensure access to a free appropriate
public education (“FAPE”) for children with disabilities, “the child’s parents, teachers, school
officials, and other professionals collaborate in a ‘multi-disciplinary team’ to develop an
individualized educational program [] to meet the child’s unique needs.” D.K. v. Dist. of
Columbia, No. 13-110, 2013 WL 5460281, at *1 (D.D.C. Oct. 2, 2013) (citing 20 U.S.C. §
1414(d)(1)(B)); see Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005).
The IEP is a written statement of the student’s educational goals and required services, §
1414(d)(1)(A), that “must, at a minimum, ‘provid[e] personalized instruction with sufficient
support services to permit the child to benefit educationally from that instruction,’” Reid, 401
F.3d at 519 (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.
Rowley, 458 U.S. 176, 203 (1982)).
A parent, or adult student, may file an administrative complaint and have an opportunity
for an impartial due process hearing if he or she objects to “the 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), (f)(1). A party to the administrative proceeding may challenge
the decision “in any State court of competent jurisdiction or in a district court of the United
States . . . .” § 1415(i)(2)(A). The reviewing court “shall receive the records of the
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W ard v. District of Columbia 8
administrative proceedings,” “shall hear additional evidence at the request of a party,” and
“basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate.” § 1415(i)(2)(C).
The party challenging the administrative determination bears the burden “of persuading
the court that the hearing officer was wrong.” Reid, 401 F.3d at 521 (citation omitted) (internal
quotation marks omitted). On review, IDEA administrative proceedings are given “less
deference than is conventional in administrative proceedings,” since the court may hear
additional evidence outside of the administrative record. Id. (citations omitted) (internal
quotation marks omitted). “While the court must make an independent determination, the court
also should give ‘due weight’ to the decision of the hearing officer and should afford some
deference to the expertise of the hearing officer and the school officials.” D.K., 2013 WL
5460281, at *4 (citing Rowley, 458 U.S. at 206; Lyons v. Smith, 829 F. Supp. 414, 419 (D.D.C.
1993)). “[A] hearing decision without reasoned and specific findings deserves little deference,”
but a “court upsetting the [administrative] officer’s decision must at least explain its basis for
doing so.” Reid, 401 F.3d at 521 (citations omitted) (internal quotation marks omitted).
Summary Judgment
“The court shall grant summary judgment 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). An issue is genuine if the “evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Whether a fact is material is determined based on whether it might affect the outcome of the suit
under the governing law. Id.
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W ard v. District of Columbia 9
The party seeking summary judgment must identify “those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[A] party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials of his pleading, but . . .
must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S.
at 248, 256 (internal quotation marks omitted). “The mere existence of a scintilla of evidence in
support of the [nonmoving party’s] position will be insufficient; there must be evidence on which
the jury could reasonably find for the [nonmoving party].” Id. at 252. The court will view the
evidence and inferences in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“If neither party introduces new evidence in a civil suit seeking review of a hearing
officer’s determination, ‘a motion for summary judgment operates as a motion for judgment
based on the evidence comprising the record.’”3 Banks ex rel. D.B. v. Dist. of Columbia, 720 F.
Supp. 2d 83, 88 (D.D.C. 2010) (quoting Thomas v. Dist. of Columbia, 407 F. Supp. 2d 102, 109
(D.D.C. 2005)); see also Presely v. Friendship Pub. Charter Sch., No. 12-0131, 2013 WL
589181, at *4 (D.D.C. Feb. 7, 2013).
DISCUSSION
The sole issue before the court is whether Defendant failed to provide Plaintiff with an
appropriate placement, and thus denied her a FAPE, by proposing a transfer from Monroe to
3
See infra note 6.
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Kingsbury. See Plaintiff’s Memorandum at 7; Amended Complaint at 4-5. Plaintiff avers that
placement at Kingsbury is inappropriate because (1) “Kingsbury does not offer the 11 month
program that [she] has been receiving at [Monroe] . . .” and (2) “it would remove [her] from a
placement in which [she] is making educational progress and disrupt [her] education when [she]
is on track to graduate in just over a year.” Amended Complaint ¶¶ 18-19; see Plaintiff’s
Memorandum at 7.
Although the term “educational placement” is not expressly defined by the IDEA, this
court has interpreted it to mean “something between the physical school attended by a child and
the abstract goals of a child’s IEP.” D.K., 2013 WL 5460281, at *5 (internal quotation marks
omitted) (citing Laster v. Dist. of Columbia, 394 F. Supp. 2d 60, 64–65 (D.D.C. 2005)); see
Bowling v. Dist. of Columbia, No. 11-2145, 2013 WL 5214948, at *4 (D.D.C. Sept. 16, 2013);
Johnson v. Dist. of Columbia, 839 F. Supp. 2d 173, 177 (D.D.C. 2012). Thus, “a change of
location alone does not constitute a change in ‘educational placement’ under the IDEA.” D.K.,
2013 WL 5460281, at *5. In the context of the statute’s stay-put provision, the Court of Appeals
“has explained that if a parent cannot identify a ‘fundamental change in, or elimination of[,] a
basic element of the education program,’ there has been no change in ‘educational placement.’”
Id. (footnote omitted) (quoting Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1582
(D.C. Cir. 1984)); see Johnson, 839 F. Supp. 2d at 177.
Plaintiff has not demonstrated that the hearing officer erred in concluding that the
proposed transfer to Kingsbury is not a change in placement, and is, instead, a change in location
of services. Although Kingsbury offers a 10-month program, in contrast to the 11-month
program offered by Monroe, the undersigned finds that Plaintiff has failed to show that this
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W ard v. District of Columbia 11
distinction is a “fundamental change in” or an “elimination of a basic element of [her] education
program.” As noted by the hearing officer, Administrative Record at 52, Plaintiff’s IEP does not
require an 11-month program. Candi CdeBaca, a student progress monitor for DCPS’ nonpublic
unit, Tr. at 240:9-10, testified that Plaintiff’s IEP “does not require her to be in school for 11
months,” Tr. at 264:4-5. Erika Johnson, the acting project coordinator and compliance case
manager for DCPS’ Office of Special Education, Tr. at 204:19-205:1, explained that during
Plaintiff’s May 2012 IEP meeting, “[t]he teacher basically said that she would benefit from [an
11-month program], but no one confirmed whether or not it was actually necessary,” Tr. at
218:19-21; see also Tr. at 216:1-6. Ms. Johnson clarified that Monroe was not selected because
Plaintiff required an 11-month program, Tr. at 219:2-5, but rather, she participates in an 11-
month program because that is the curriculum that the school offers, Tr. at 215:14-17.
Moreover, if it is determined, in accordance with the IDEA, that Plaintiff requires
services for a period beyond the duration of the 10-month program, there is evidence in the
record that Kingsbury can offer extended school year services. Ms. Johnson testified that if
Plaintiff’s IEP team determined that it was necessary, Kingsbury could provide extended school
year services. Tr. at 219:17-21. Jennifer Switlick, a DCPS student progress monitor who
currently monitors students at Kingsbury, Tr. at 289:18-21 291:1-2, similarly testified that
Kingsbury could provide these services to Plaintiff if deemed necessary, and explained the
process for making that determination, Tr. at 303:5-304:1.
Plaintiff does not dispute that Kingsbury can implement the provisions of her IEP.4 Nor
4
In contrast, there are concerns regarding Monroe’s ability to implement Plaintiff’s IEP. Plaintiff initially
testified that she is not receiving speech services at Monroe, Tr. at 81:18-22, but subsequently testified that she is
receiving speech services during her classes, Tr. at 194:13-15. Ms. CdeBaca, whose duties include monitoring
students in nonpublic schools to ensure that they are progressing and that the school is in compliance with applicable
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does she challenge the appropriateness of her IEP. See Plaintiff’s Memorandum at 7. The
hearing officer found that Kingsbury can offer services in a full-time out of general education
setting with small classes and individualized instruction. Administrative Record at 52. He
further found that Kingsbury can provide the services required by Plaintiff’s IEP, including
behavioral support services and speech language services.5 Id. These findings are supported by
the record. Ms. CdeBaca testified that “Kingsbury can implement the IEP as it stands.” Tr. at
265:7-8. Ms. Switlick corroborated that Kingsbury can provide the services required by
Plaintiff’s IEP. Tr. at 300:3-9, 301:3-7. Plaintiff has offered no evidence to the contrary.
In D.K. v. District of Columbia, the court found that the change in location of services did
not constitute a change in education placement where DCPS sought to transfer a student to
Kingsbury. 2013 WL 5460281, at *5-6. The court determined that there was no “fundamental
change in, or elimination of, any basic element of [the student’s] educational program as set forth
in his IEP” and that Kingsbury could implement his IEP. Id. at *6-7. Other courts have similarly
concluded. See Jalloh v. Dist. of Columbia, No. 12-0694, 2013 WL 5188430, at *8 (D.D.C.
Sept. 17, 2013) (adopting a report and recommendation that the hearing officer’s determination
that the student’s placement was appropriate be upheld, where the court found that the proposed
regulations, Tr. at 241:6-10, testified regarding problems tracking Plaintiff’s progress at Monroe, Tr. at 249:8-11,
18-22, as well as difficulty verifying the implementation of her required services, Tr. at 260:10-21, 265:22-266:3.
Ms. Johnson testified that DCPS was considering a new school because there were concerns that Monroe could not
provide Plaintiff a FAPE. Tr. at 211:1-3, 226:5-11.
5
The hearing officer explained that he was “not convinced by the argument that th[e] difference in the
length of the school year makes Kingsbury [] a less restrictive setting than [Monroe].” Administrative Record at 52.
At the administrative level, Plaintiff averred that the 10-month program at Kingsbury is “a less restrictive educational
placement.” See id. at 44. Plaintiff has not raised that argument in its submissions to this court. See generally
Plaintiff’s Memorandum; Plaintiff’s Opposition. In any event, the undersigned finds that the hearing officer’s
conclusion that Kingsbury offers a full-time out of general education setting, as required by the LRE provision of
Plaintiff’s IEP, is supported by the record. See Administrative Record at 47, 52.
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school could implement his IEP); Aikens v. Dist. of Columbia, No. 12-553, 2013 WL 3119303, at
*6 (D.D.C. June 21, 2013) (noting that “[i]n the absence of a ‘fundamental change in’ or
‘elimination of’ a basic element of [the student’s] educational program” when she was moved to
a different school, there had been “no change in educational placement” and the student was not
denied a FAPE); James v. Dist. of Columbia, No. 12-376, 2013 WL 2650091, at *4 (D.D.C. June
9, 2013) (citations omitted) (concluding that DCPS did not deny the student a FAPE after finding
that the school “was an appropriate location of services” for the student and noting that “[u]nder
the IDEA, an appropriate location of services is one which can implement a student’s IEP and
meet his specialized educational and behavioral needs”); Garmany v. Dist. of Columbia, 935 F.
Supp. 2d 177, 183 (D.D.C. 2013) (upholding the hearing officer’s finding that the school “was an
appropriate placement because [it] could implement [the student’s] IEP”). As discussed above,
Kingsbury can fully implement Plaintiff’s IEP with no fundamental change in or elimination of
its provisions.
With respect to Plaintiff’s contention that “[b]y choosing to place her in a program in
which the evidence was overwhelmingly that she would experience educational regression, the
Defendant has failed to place [her] in an appropriate program,” see Plaintiff’s Memorandum at 8,
the undersigned finds that Plaintiff points to no evidence in the record which supports the
contention. Plaintiff relies on her own testimony, the testimony of her mother, and the testimony
of Dr. Carolyn Gravely-Moss. See id. at 8-9. While the court does not minimize their concerns,
in light of the other evidence in the record, their testimony does not warrant a finding that the
hearing officer erred in concluding that Kingsbury “is an appropriate location of services for
[Plaintiff].” See Administrative Record at 53.
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Plaintiff and her mother both expressed their concern that Plaintiff would be unhappy and
would regress if transferred to Kingsbury. Plaintiff testified that after she visited Kingsbury, the
people did not seem “friendly” or “genuine” and she did not feel comfortable there. Tr. at 73:1-
3, 5-10, 19-21. When asked if she thought she could do well at Kingsbury, she responded
“[p]robably not, I’d probably go to a depression because I’m used to Monroe. I don’t think that’s
a school that’s fit for me.” Tr. at 75:16-20. Plaintiff’s mother testified that when they visited
Kingsbury, the students appeared “wild” and “disobedient” and the staff did not seem “genuine.”
Tr. at 56:5-8, 20-21. She noted that Plaintiff has improved and shown more interest in school
after transferring to Monroe, Tr. at 51:8-19, and worried that she would regress if transferred, Tr.
at 58:1-8. Dr. Carolyn Gravely-Moss, who provided counseling services to Plaintiff when she
first began attending Monroe, and now supervises her counselor, was designated by the hearing
officer as an expert in the area of psychological counseling. Tr. at 92:13-14, 108:22-109:2,
109:10-13, 111:1-11. Dr. Gravely-Moss indicated that Plaintiff has progressed while at Monroe,
has an increased trust in the educational system, and is now focusing on her future. Tr. at 114:4-
15. Dr. Gravely-Moss opined that if she were transferred to Kingsbury, Plaintiff would go
through an adjustment period that could hinder her psychological development and cause a
setback in her academic progress. Tr. at 119:10-18. However, she did acknowledge that with
appropriate support, Plaintiff could overcome this transition period, as she did after she
transferred to Monroe. Tr. at 126:4-11.
The record indicates that Plaintiff can receive services to mitigate negative effects of the
transfer. Ms. CdeBaca indicated that a DCPS transition case manager is available to facilitate
Plaintiff’s transfer to Kingsbury. Tr. at 273:8-14. Ms. Switlick described Kingsbury’s services,
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W ard v. District of Columbia 15
explaining that Plaintiff could be assigned a teacher advisor to assist in her transition, Tr. at
305:13-20, offered tutoring, Tr. at 305:21-306:2, and have access to clinical psychologists to
manage the emotional aspect of transitioning, Tr. at 306:5-13.
Plaintiff relies solely on Holmes v. District of Columbia, 680 F. Supp. 40 (D.D.C. 1988)
in support of her position that “in this jurisdiction, case law supports a strong preference for not
changing educational placements of special education students who have adjusted well to their
current placement and who are close to graduating.” Plaintiff’s Memorandum at 10; see
Plaintiff’s Opposition at 3-4. Although Plaintiff argues that her case is analogous to Holmes, the
undersigned finds that Holmes is significantly distinguishable, and cannot be regarded as
controlling in the context of this action. The court in Holmes observed that the proposed school
was “in a start-up posture” and questioned whether it “could have come even close to meeting
the needs of the plaintiff.” 680 F. Supp. at 42. In contrast, Kingsbury is an established school
that can provide the services required by Plaintiff’s IEP “in a full time out of general education
setting, with small classes and individualized instruction . . . .” Administrative Record at 52; see
also id. at 84. Although Plaintiff posits that the Holmes court’s “misgivings” about the school
were not the main “premise[]” for the holding, see Plaintiff’s Opposition at 4, the court stated
that ordering the student to attend the proposed school “would have been a reckless and wanton
act,” 680 F. Supp. at 42. Additionally, in Holmes, the court made no findings with respect to
concerns regarding the student’s preferred school. Cf. supra note 4.
Holmes was also in a different procedural posture than this action, since in Holmes, the
court conducted a bench trial and made findings “based on testimony [it] heard firsthand.” Id. at
41-42. Here, Plaintiff bears the burden of demonstrating that the hearing officer erred, and this
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W ard v. District of Columbia 16
court must review the entire record, giving some deference to the reasoned findings by the
hearing officer. See Reid, 401 F.3d at 521.
In any event, Holmes was decided more than twenty years ago under the precursor statute
to the IDEA. As discussed above, more recent case law from this court, decided in accordance
with the IDEA, directs that the court determine whether there has been a fundamental change in,
or elimination of, a basic element of the student’s educational program, as established by his or
her IEP.
The hearing officer determined that “the decision to place [Plaintiff] at Kingsbury was a
location of services decision . . . and not a change of placement decision.” Administrative
Record at 52. He further found that “Kingsbury can implement [Plaintiff’s] IEP and is an
appropriate location of services for [her].” Id. at 53. He thus concluded that “DCPS did not
violate the IDEA and [its] actions did not deny [Plaintiff] a FAPE.” Id. at 52. The undersigned
finds that the hearing officer’s determination is supported by a preponderance of evidence in the
record, and that Plaintiff has failed to meet her burden of demonstrating that the hearing officer
erred in his decision.6
CONCLUSION
For all of the foregoing reasons, it is this 23rd day of December, 2013,
RECOMMENDED that Plaintiff[’s] Motion for Summary Judgment (Document No. 13)
6
Defendant submitted additional evidence for the court’s consideration in the form of a hearing officer
determination rendered on June 5, 2013. See Defendant’s Reply, Exhibit 1 (Document No. 20-1). Defendant
represents that “[d]uring the pendency of this appeal, Plaintiff filed a second due process complaint alleging that
DCPS was failing to provide the student a FAPE by not transporting her to the Monroe School.” Defendant’s Reply
at 2. Defendant further represents that the hearing officer denied Plaintiff’s request for relief, and that the decision
has not been appealed. Id. The undersigned has not considered this additional evidence, as it was not necessary for
the resolution of the issues before the court.
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W ard v. District of Columbia 17
be DENIED; and it is
FURTHER RECOMMENDED that Defendant’s Cross-Motion for Summary Judgment
(Document No. 15) be GRANTED.
/s/
DEBORAH A. ROBINSON
United States Magistrate Judge
Within fourteen days, either party may file written objections to this report and
recommendation. The objections shall specifically identify the portions of the findings and
recommendations to which objection is made and the basis of each such objection. In the
absence of timely objections, further review of issues addressed herein may be deemed
waived.