Shaw v. District of Columbia ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ANTOINETTE SHAW, )
)
Plaintiff )
)
v. ) Civil Action No. 17-00738 (DLF/RMM)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
REPORT AND RECOMMENDATION
This case arises from administrative proceedings that Plaintiff Antoinette Shaw
(“Plaintiff” or “Ms. Shaw”) brought against the District of Columbia (“the District”), under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq., to challenge the
District of Columbia Public Schools’ (“DCPS”) provision of a free and appropriate public
education (“FAPE”) for Plaintiff’s minor child S.S. (“S.S.” or “the Student). See generally
Compl., ECF No. 1. Specifically, Ms. Shaw challenges certain findings made in a February 1,
2017 Hearing Officer Determination (“HOD”) issued by the District of Columbia’s Office of the
State Superintendent of Education and asks the Court to reverse the HOD and remand for further
proceedings.
In the pending Motion for Summary Judgment, which Ms. Shaw filed on behalf of her
daughter, S.S., Ms. Shaw alleges that the Impartial Hearing Officer ( “Hearing Officer”) erred in
four ways: (1) by failing to provide an adequate remedy for her finding that DCPS denied S.S. a
FAPE by failing to conduct any new assessments as part of its triennial review of S.S.’s needs;
(2) by failing to find that DCPS denied S.S. a FAPE by including inadequate plans for S.S.’s
transition out of high school in the individualized educational plans (“IEPs”) prepared after S.S.
turned sixteen; (3) by failing to find that DCPS denied S.S. a FAPE by excluding Ms. Shaw from
certain aspects of S.S.’s educational planning; and (4) by failing to find that DCPS denied S.S. a
FAPE by prematurely graduating her from high school despite her significant academic
shortcomings and failing to give Ms. Shaw adequate prior written notice of S.S.’s upcoming
graduation. See Pl.’s Mot. for Summ J. (“Pl.’s Mot.”), ECF No. 10. The District has cross-
moved for summary judgment and contends that the HOD should be affirmed because the
applicable law and the record developed during the administrative proceedings support the
Hearing Officer’s rulings. See Def.’s Opp’n to Pl.’s Mot. for Summ. J. (“Def.’s Opp’n”), ECF
No. 12. Having considered the relevant filings1 and the applicable law, and for the reasons set
forth below, the undersigned recommends that the Court GRANT-IN-PART and DENY-IN-
PART Plaintiff’s Motion for Summary Judgment, and GRANT-IN-PART and DENY-IN-PART
Defendant’s Cross-Motion for Summary Judgment.
BACKGROUND
I. Statutory Framework
The IDEA was enacted “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). To that end, local school districts must ensure
that “[a]ll children with disabilities residing in the State . . . regardless of the severity of their
disabilities, and who are in need of special education and related services, are identified, located,
1
The following documents are also pertinent to the pending motion: Admin. R. (“AR”),
ECF No. 7; Def.’s Opp’n to Pl.’s Mot. for Summ. J. (“Def.’s Opp’n”), ECF No. 12; Def.’s Cross
Mot. for Summ. J., ECF No. 13 (Def.’s Cross Mot.); Pl.’s Reply in Opp’n to Def.’s Cross Mot.
(“Pl.’s Reply”), ECF No. 17; Def.’s Reply to Pl.’s Opp’n to Def.’s Cross Mot. for Summ. J.,
ECF No. 21 (“Def.’s Reply); Compl., ECF No. 1.
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and evaluated.” Id. § 1412(a)(3)(A). A FAPE includes “special education and related services
that — (A) have been provided at public expense, under public supervision and direction, and
without charge; (B) meet the standards of the State educational agency; (C) include an
appropriate preschool, elementary school, or secondary school education in the State involved;
and (D) are provided in conformity with [a child’s] individualized education program.” Id.
§ 1401(9).
The IDEA “requires the school district to create and implement an [individualized
education program]” for disabled children who are eligible for special education services.
Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 830 (D.C. Cir. 2006). This IEP is
“the means by which special education and related services are ‘tailored to the unique needs’ of a
particular child.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988,
994 (2017) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v.
Rowley, 458 U.S. 176, 181 (1982)); see also Honig v. Doe, 484 U.S. 305, 311 (1988) (noting that
Congress “envision[ed] the IEP as the centerpiece of the statute’s education delivery system for
disabled children”); Lesesne, 447 F.3d at 830; 20 U.S.C. § 1414(d)(2)(A). 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.” Honig, 484 U.S. at 311
(citing 20 U.S.C. § 1401(19) (1988)). The final product “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. Once a child reaches age sixteen, the IEP must include “appropriate
measurable postsecondary goals based upon age appropriate transition assessments” and explain
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the transition services necessary to help the student reach those goals. 20 U.S.C. §
1414(d)(1)(A)(i)(VIII).
The IEP must be “reasonably calculated to enable a child to make progress appropriate in
light of the child’s circumstances.” Endrew, 137 S. Ct. at 999. The IEP also must comply with
the IDEA’s requirement that students “be educated in the least restrictive environment possible.”
Leggett v. District of Columbia, 793 F.3d 59, 74 (D.C. Cir. 2015). After the IEP is developed,
the school district must provide the child with an appropriate educational placement that
comports with the IEP. See 34 C.F.R. § 300.116(b)(2); Hinson ex rel. N.H. v. Merritt Educ. Ctr.,
579 F. Supp. 2d 89, 99 (D.D.C. 2008).
Parents who disagree with the IEP or believe that a school district has violated other
IDEA requirements may file a due process complaint. See 20 U.S.C. § 1415(b)(6). If the parties
are unable to resolve the complaint within thirty days, the parents are entitled to a due process
hearing before the local education agency. Endrew, 137 S. Ct. at 994; see also 20 U.S.C. §
1415(f)(1), (g). Either party may appeal an adverse ruling to a federal district court. See 20
U.S.C. § 1415(i)(2).
II. Factual Background
The events pertinent to this case occurred between the 2012–2013 school year and the
2015–2016 school year. At that time, S.S. was a student eligible for special education services
based on an IDEA classification of Intellectual Disability. AR 6; AR 111 (Final Eligibility
Determination Report).
A. Overview of S.S.’s Disability and Anacostia High School’s Services for S.S.
S.S. was a student at Anacostia High School, where she received special education
services based on her Intellectual Disability. AR 6; AR 950 (Test. Of Latisha Chisholm
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(“Chisholm Test.”)). S.S. had an independent comprehensive psychological evaluation on
August 27, 2012, shortly before she began ninth grade. AR 4; AR 33–47 (Comprehensive
Psychoeducational & Clinical Evaluation). Although S.S. was eligible to remain in school until
she turned twenty-two years old, she was scheduled to graduate in four years on the high school
diploma track. AR 6; AR 700–01 (Test. of Twilah Anthony (“Anthony Test.”). Throughout her
tenure at Anacostia High, S.S. was adamant about graduating and worked diligently toward
accomplishing her goal. AR 6; AR 661 (Test. of S.S. (“S.S. Test.”); AR 706 (Anthony Test.).
As part of her special education, S.S. received accommodations from her teachers to help her
complete assignments and examinations. AR 6; AR 942 (Chisholm Test.).
S.S. had a team of teachers and administrators who developed annual IEP goals for her
education. See AR 6; AR 50, 86, 207 (IEPs dated 2/24/2015, 9/21/2015, and 4/25/2016). The
IEPs pertinent to this litigation were performed on February 24, 2015, September 21, 2015, and
April 25, 2016. See AR 50–73, 86–110, 207–27. Several parties provided input for the IEPs,
including S.S., her teachers, and Ms. Shaw. See AR 8, 50–73, 86–110, 207–27. Objective tests
such as the Brigance Transition Skills Assessments and Casey Life Skills Test also informed the
development of the IEPs. Id. The IEPs included goals for mathematics, reading, written
expression, and adaptive/daily living skills. Id.Beginning in February 2015, S.S.’s IEPs included goals for her transition out of DCPS.
For example, one goal was for S.S. to contact a post-secondary educational program that she was
interested in attending after graduating high school, and to ask questions about the program. AR
8, 70–71, 105–08, 223–27. The IEPs also anticipated that S.S. would contact a workforce
development center to ask questions about a program she hoped to work in after high school. Id.5
S.S. had opportunities to participate in several outside programs that school officials
believed would help prepare S.S. for future training or employment. In December 2015, S.S.
was accepted into the Competitive Employment Opportunities Exercises in Transition Academy
(“CEO EXIT”) Program, which was designed to help students navigate and manage the
expectations of postsecondary training or a workplace setting. AR 9; AR 136 (CEO Exit
Acceptance Letter). In March 2016, S.S. applied to CVS’s Workforce Development Program,
which is designed to provide workplace assistance and placement to adults with disabilities. AR
9; AR 137–140 (CVS Workforce Application). S.S. expressed interest in becoming a CVS
pharmacy technician. AR 137. A transition specialist at Anacostia High School provided some
travel training with S.S., including drawing a map to S.S.’s assigned CVS store and traveling the
route with her. AR 9–10; AR 1001 (Anthony Test.). In addition, On the Move provided travel
training to S.S. through its partnership with DCPS. AR 10; AR 1002 (Anthony Test.).
Ultimately, S.S. did not attend either program because her mother expressed concerns about her
ability to succeed. AR 1001–02 (Anthony Test.).
B. Ms. Shaw’s Involvement with S.S.’s Educational Planning
Ms. Shaw participated in most of S.S.’s IEP meetings during the relevant time period.
Ms. Shaw was not present at the meeting for the February 24, 2015 IEP, but DCPS sent her a
letter three days afterward offering to reconvene S.S.’s IEP team to discuss her IEP. AR 7. S.S.
turned eighteen years old in July 2015. AR 671 (Test. Of Antoinette Shaw (“Shaw Test.”)).2
Another IEP meeting occurred in September 2015, after S.S. had turned eighteen, and both S.S.
and Ms. Shaw attended that meeting in person. AR 86. In April 2016, S.S. attended an IEP in
2
Due to an error with the tapes of the hearing, the Hearing Officer read Ms. Shaw’s
testimony into the record by summarizing the contents of the Hearing Officer’s notes. AR 669.
6
person and provided input to develop a Summary of Performance in preparation for S.S.’s June
2016 graduation. AR 208, 228–38. The parties dispute whether Ms. Shaw attended the April
2016 IEP meeting. AR 5.
On November 5, 2015, after S.S. turned eighteen years old, S.S. executed a durable
power of attorney document, authorizing Ms. Shaw to act as her agent in a broad array of areas,
including special education. AR 131–35. Despite Ms. Shaw’s power of attorney status, Ms.
Shaw and S.S. argued about whether S.S. should graduate. AR 671 (Shaw Test.). Ms. Shaw did
not think that S.S. should graduate, although S.S. was adamant that she should. Id.. During
meetings at school, S.S. would often ask for her mother to be present when making decisions, but
the teachers told her that she did not need her mother present and pushed her to make her own
decisions. AR 661–63 (S.S. Test.).
Ms. Shaw voiced her concerns about S.S.’s participation in job training programs to Sean
Duling, S.S.’s transition specialist at Anacostia High School. AR 671–73 (Shaw Test.). Ms.
Shaw told Mr. Duling that she believed S.S. lacked the skills necessary for the workforce
development programs based on the amount of travel required and an on-site CVS manager’s
assertion that S.S. would not qualify for the role. Id. Ms. Shaw claims that she called Anacostia
High School more than once to arrange another IEP meeting or receive notes from the April
2016 IEP meeting, but she never received a response. AR 683.
While S.S. was enrolled in school, Ms. Shaw was generally satisfied with the educational
services Anacostia High School provided S.S. and believed that S.S.’s team was “doing the right
thing.” AR 680–82 (Shaw Test.). Conversations with DCPS staff members led Ms. Shaw to
believe that S.S. would be prepared to move on with her life after graduation. AR 678 (Shaw
Test.). Ms. Shaw eventually became concerned that S.S. was not ready for job training. AR 681
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(Shaw Test.). At some point, Ms. Shaw did not think that S.S. should graduate. AR 670–71
(Shaw Test.). However, staff never counseled Ms. Shaw that S.S. could remain in school and
receive special education past age eighteen. AR 669 (Shaw Test.). Ms. Shaw would have agreed
to allow S.S. to remain in school until she was twenty-two years old if Ms. Shaw had known that
was an option. AR 678 (Shaw Test.). After S.S. graduated, Ms. Shaw recognized that S.S. “had
a lot of issues that could have been addressed if she had stayed in school longer.” AR 682 (Shaw
Test.).
C. S.S.’s Progress at Anacostia High School
As a freshman in 2012, S.S.’s overall cognitive ability fell in the lower extreme range.
AR 6, 38. During her high school tenure, S.S. made regular, albeit not uniform, progress on her
IEPs. See AR 6; AR 75–85 (IEP Progress Report dated June 2015); AR 240–50 (IEP Progress
Report dated April 2017). According to Anacostia High School’s Special Education Coordinator
Latisha Chisholm, a student with S.S.’s intellectual disability would not be expected to make
tremendous progress. AR 7, 950. Upon graduation in June 2016, S.S. was performing between a
third and fifth grade academic level. AR 7; AR 947 (Chisholm Test.). S.S. could not tell time,
take the metro by herself, or count money, and she needed support for her day-to-day activities.
AR 661 (S.S. Test.); AR 670 (Shaw Test.). Yet, S.S. graduated with a 3.1 GPA and was ranked
in the top 10% of her class. AR 256–58 (DCPS Transcript & Diploma), ECF No. 26-1.
S.S. initially was excited to graduate. AR 661 (S.S. Test.). However, once she graduated
she realized that she lacked “the skill that it takes [to function in] everyday life and therefore
struggle[d].” Id. A comprehensive evaluation conducted in November 2018, two years after
S.S. graduated, found that S.S. has the reading equivalency of a nine year old, the math
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equivalency of an eight year, three month old, and the written language of a ten year, eleven
month old. See Comprehensive Psychological Exam, ECF No. 25-1.
III. Procedural Background
A. Administrative Proceedings
On November 18, 2016, Ms. Shaw filed the Due Process Complaint (“DPC”) underlying
the HOD in this matter. AR 413–22. DCPS responded on December 6, 2016. AR 435–43. The
parties appeared before Hearing Officer Nakeisha Blount (“Hearing Officer”) on December 21,
2016 for a Pre-Hearing Conference. AR 477. The DPC identified the following issues for
resolution:
1. Whether DCPS denied the student a FAPE during the 2015-2016 school year
by failing to adequately evaluate the student including by failing to perform
triennial evaluations including a comprehensive psychological evaluation and
an appropriate comprehensive vocational assessment, to include assessments
for post-secondary education, employment and independent living abilities;
2. Whether DCPS denied the student a FAPE by failing to develop appropriate
IEPs in February 2015, September 2015, and April 2016, including by failing
to develop appropriate and meaningful transition plans. The IEPS were not
reasonably calculated to provide the student with educational benefit or
amended to meet her specific academic needs and difficulties. All the student’s
academic and functional goals were vague and/or not appropriate for the
student’s cognitive ability.
3. Whether DCPS denied the student a FAPE by failing to allow the student’s
parent to participate in all of the student’s educational planning after July 2015
when the student turned 18. The parent attended the September 2015 IEP
meeting but did not participate in the development of the IEP. The parent did
not attend the April 2016 IEP meeting.
4. Whether DCPS denied the student a FAPE by prematurely exiting her from
special education through giving her a diploma, and by failing to comply with
federal and local regulations. Specifically, plaintiff asserts that DCPS failed to
provide the parent (1) Summary of Performance (at any point), (2) Prior Written
Notice (PWN) (prior to graduation), and (3) Notice of Transfer of Rights (prior
to the student turning 18 years old).
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AR 478. As relief, Ms. Shaw sought: (a) a finding that S.S. had been denied a FAPE; (b) an
Order directing DCPS to fund an independent comprehensive psychological evaluation at market
rate; (c) an Order requiring that DCPS conduct a comprehensive vocational evaluation
(equivalent to the Brigance Transition Inventory) within 10 days of the HOD; (d) an order
requiring that DCPS develop, fund, and execute an appropriate transition plan; and (e) an Order
directing DCPS to provide the student compensatory education for the 2014–2015 and 2015–
2016 school years including tutoring hours for functional and academic remediation and a
vocational program to be determined after the vocational and psychological evaluations are
completed. AR 479.
The parties, each represented by counsel, convened for a Due Process Hearing on January
10, 2017, January 11, 2017, and January 18, 2017. AR 4, 602, 773, 1050. Plaintiff presented
three witnesses: S.S., Ms. Antoinette Shaw, and Ms. Twilah Anthony. AR 4, 604, 772. Ms.
Anthony is an educational advocate who testified as an expert witness in special education
programming, placement, and IEP planning. AR 4; AR 694 (Anthony Test.). DCPS presented
two expert witnesses: Ms. Latisha Chisholm, the Special Education Coordinator at Anacostia
High School and S.S.’s former environmental science teacher, and Mr. Christopher Nace, DCPS’
interim Director of Secondary Transition. AR 4; AR 937–38 (Chisholm Test.); AR 988 (Nace
Test.). Ms. Chisholm testified as an expert in special education programming and placement,
and Mr. Nace testified as an expert in special education programming and placement,
particularly in transitions for students with special needs. AR 937 (Chisholm Test.), 988–89
(Nace Test.).
The Hearing Officer issued a HOD on February 1, 2017 and issued a revised version on
February 4, 2017 to correct formatting and typographical errors. AR 3, n.2. The Hearing Officer
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determined that DCPS’s reliance on evaluations and assessments that were several years old
when it conducted its triennial review was unreasonable and denied S.S. a FAPE during the
2015–2016 school year. AR 11. Next, the Hearing Officer reviewed Ms. Shaw’s challenge to
the IEPs and transition plans contained therein. AR 12. The Hearing Officer concluded that the
IEPs likely contained inappropriate goals, “particularly to the extent that they were repeated in
September 2015 and April 2016,” but did not clearly address whether those deficiencies denied
S.S. a FAPE. Id. The Hearing Officer rejected Ms. Shaw’s assertion that the IEPs’ transition
goals were inappropriate, reasoning that the goals were “reasonably connected to [S.S.’s]
expressed interests, her realistic prospects, and were sufficiently ambitious . . . with
accommodations.” AR 12. Next, the Hearing Officer found that DCPS did not deny S.S. a
FAPE by failing to allow Ms. Shaw to participate in all of the educational planning after S.S.
turned eighteen. AR 12. The Hearing Officer concluded that Ms. Shaw participated in S.S.’s
educational planning, as evidenced by her engagement in a September 2015 meeting and various
conversations with teachers throughout the school year including after S.S.’s eighteenth
birthday. AR 12. Finally, the Hearing Officer found that DCPS did not deny S.S. a FAPE by
permitting her to graduate, particularly given that S.S., Ms. Shaw, and the team opted to keep
S.S. on the diploma track and S.S. was adamant about graduating on time. AR 13. However, the
Hearing Officer found that DCPS’s apparent failure to give Ms. Shaw prior written notice
(“PWN”) of S.S.’s graduation inhibited Ms. Shaw’s ability to participate in providing a FAPE to
S.S. AR 13. The Hearing Officer reasoned that the PWN would have advised Ms. Shaw of the
alternatives to graduation, such as S.S.’s option to remain in school beyond June 2016, and Ms.
Shaw would have objected to the graduation had she been adequately informed. AR 13.
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As relief, the Hearing Officer ordered DCPS to provide a comprehensive psychological
evaluation at market rate within ten business days of the HOD. AR 13. The Hearing Officer did
not indicate whether this relief was designed solely to remedy DCPS’s failure to conduct updated
assessments during the triennial review or also was intended to remedy the failure to provide
PWN of S.S.’s upcoming graduation.
B. The Instant Action
On April 21, 2017, Ms. Shaw filed this action challenging the HOD. See generally
Compl. After the District filed the Administrative Record, the parties cross-moved for summary
judgment. See generally AR; Pl.’s Mot.; Def.’s Opp’n. Ms. Shaw also moved to strike a
declaration submitted with the District’s cross-motion. See Pl.’s Mot. to Strike, ECF No. 15.
District Judge Dabney L. Friedrich subsequently referred the cross motions and the motion to
strike to the undersigned for a report and recommendation. See 03/07/2018 Min. Order. Judge
Friedrich adopted the undersigned’s Report and Recommendation and denied Plaintiff’s Motion
to Strike. See 09/26/2018 Min. Order. After briefing was complete, Ms. Shaw filed Status
Reports to advise the Court of the status of S.S.’s pending comprehensive psychological
evaluation. See Status Reports, ECF Nos. 23–25. S.S. was evaluated on November 10, 2018,
and Ms. Shaw filed the results of that evaluation shortly thereafter. See ECF No. 25-1.
LEGAL STANDARD
I. Summary Judgment
Federal Rule of Civil Procedure 56 governs summary judgment motions, which must be
granted if “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). When determining whether summary
judgment is appropriate, a court must view the evidence and inferences in the light most
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favorable to the party opposing summary judgment. See Adickes v. S. H. Kress & Co., 398 U.S.
144, 157 (1970); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However,
if the moving party satisfies its initial burden of showing that no genuine dispute exists regarding
any material fact, the opposing party must still demonstrate more than “[t]he mere existence of a
scintilla of evidence” in support of its position in order to make summary judgment improper.
Anderson, 477 U.S. at 252.
In the IDEA context, “[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.” N.W. v. District of Columbia, 253 F. Supp. 3d 5, 12 (D.D.C. 2017) (quoting D.R.
ex rel. Robinson v. Gov’t of D.C., 637 F. Supp. 2d 11, 16 (D.D.C. 2009)) (internal quotation
marks omitted); Brown v. District of Columbia, 179 F. Supp. 3d 15, 23 (D.D.C. 2016); see 20
U.S.C. § 1415(i)(2)(C) (noting that the court “shall hear additional evidence at the request of a
party”). When no additional evidence is introduced, “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.” Q.C-C. v. District of Columbia, 164 F. Supp. 3d 35, 44 (D.D.C. 2016)
(quoting Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997)) (modifications omitted).
Thus, in the absence of additional evidence, a motion for summary judgment under the IDEA “is
not a true summary judgment procedure. Instead, the district court essentially conduct[s] a bench
trial based on a stipulated record.” L.R.L. ex rel. Lomax v. District of Columbia, 896 F. Supp. 2d
69, 73 (D.D.C. 2012) (quoting Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir.
1993)).
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II. Review of IDEA Administrative Decisions
Where, as here, a party seeks to challenge an administrative decision, a “party aggrieved
by the findings and decision” has the right to bring a civil action. 20 U.S.C. § 1415(i)(2)(A).
The party challenging the hearing officer’s determination carries “the burden of persuading the
court that the hearing officer was wrong.” Kerkam v. McKenzie (Kerkam I), 862 F.2d 884, 887
(D.C. Cir. 1989); see also Brown, 179 F. Supp. 3d at 23. When evaluating such challenges, a
court receives “the records of the administrative proceedings” and must “hear additional
evidence at the request of a party” before “grant[ing] such relief as the court determines is
appropriate” based “on the preponderance of the evidence.” 20 U.S.C § 1415(i)(2)(C). Thus, the
IDEA standard of review is “more rigorous” and less deferential than that applied to review of
administrative decisions under the Administrative Procedure Act. Reid ex rel. Reid v. District of
Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005); Kerkam I, 862 F.2d at 887.
However, “this standard does not authorize unfettered de novo review.” Brown, 179 F.
Supp. 3d at 23. Courts review questions of law de novo. Reid, 401 F.3d at 521. Otherwise,
courts must give “due weight” to the administrative proceedings and should not “substitute their
own notions of sound educational policy for those of the school authorities which they review.”
Rowley, 458 U.S. at 206; see Kerkam ex rel. Kerkam v. Superintendent, D.C. Pub. Schs. (Kerkam
II), 931 F.2d 84, 87–88 (D.C. Cir. 1991) (deferring to the findings of the hearing officer where
“the administrative record contains sufficiently reasoned, specific findings to support [the]
conclusion”); see also N.W., 253 F. Supp. 3d at 12. Courts accord less weight to determinations
that do not involve the exercise of educational expertise “because a federal court is just as well
suited to evaluate the situation.” Serpas v. District of Columbia, No. 02-CV-2227 (HHK), 2005
WL 3211604, at *5 (D.D.C. Oct. 28, 2005) (quoting Kings Local Sch. Dist. Bd. of Educ. v.
14
Zelazny, 325 F.3d 724, 728 (6th Cir. 2003)) (citing McKenzie v. Smith, 771 F.2d 1527, 1535 n.17
(D.C. Cir. 1985)) (internal quotation marks omitted). Finally, “[f]actual findings from the
administrative proceedings are to be considered prima facie correct.” Brown, 179 F. Supp. 3d at
23 (quoting Roark ex rel. Roark v. District of Columbia, 460 F. Supp. 2d 32, 38 (D.D.C. 2006))
(internal quotation marks omitted). Those factual findings warrant deference “unless [the Court]
can point to contrary nontestimonial extrinsic evidence [in] the record.” Savoy v. District of
Columbia, 844 F. Supp. 2d 23, 30 (D.D.C. 2012).
DISCUSSION
Four issues are in dispute in the pending cross-motions for summary judgment: (1)
whether the additional evaluation that the Hearing Officer ordered adequately remedied DCPS’s
reliance on outdated evaluations during its triennial review of S.S.’s IEP or whether
compensatory education is necessary to redress that denial of a FAPE; (2) whether DCPS denied
S.S. a FAPE by providing her with inadequate transition plans in her IEPs; (3) whether DCPS
denied S.S. a FAPE by not allowing Ms. Shaw to participate in all aspects of S.S.’s educational
planning; and (4) whether DCPS denied S.S. a FAPE by graduating her from high school before
she was adequately prepared to leave school and by failing to give Ms. Shaw prior written notice
of S.S.’s upcoming graduation. See generally Pl.’s Mot. The following analysis will address
each issue in turn.
I. Whether the Hearing Officer Erroneously Concluded that Requiring DCPS to
Provide an Additional Comprehensive Psychological Evaluation Would
Adequately Remedy the District’s Denial of a FAPE to S.S. During the 2015–
2016 School Year
The parties dispute whether the Hearing Officer awarded relief that was sufficient to
remedy the denial of a FAPE caused by DCPS’s reliance on outdated evaluations during its
triennial review of S.S.’s IEP. Once a hearing officer finds that a school district has denied the
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student a FAPE, she is required to craft an award that will place a student “in the position she
would be in absent the FAPE denial.” B.D. v. District of Columbia, 817 F.3d 792, 798 (D.C. Cir.
2016). A hearing officer has “broad discretion to fashion an appropriate remedy” for a FAPE
denial. See id. (quoting Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015)).
Equitable relief may consist of “retrospective relief designed to compensate for yesterday’s
IDEA violations” or “prospective relief aimed at ensuring that the child receives tomorrow the
education required by [the] IDEA.” Branham v. District of Columbia, 427 F.3d 7, 11 (D.C. Cir.
2005). Compensatory education is a form of prospective equitable relief that “provide[s] the
educational benefits that likely would have accrued from special education services the school
district should have supplied in the first place.” Id. at 9. Any award of equitable relief “must be
tailored to meet the child’s specific needs.” Id. at 11–12.
In a portion of the HOD that neither party has appealed, the Hearing Officer found that
DCPS denied S.S. a FAPE when, as part of the 2015 triennial review of S.S.’s need for special
education services, DCPS failed to conduct new assessments and relied on data from an October
2009 evaluation summary report instead of a more recent psychological evaluation.3 AR 11; see
also AR 7 (describing data on which DCPS relied). The Hearing Officer concluded that it was
unreasonable for DCPS to rely on a six-year-old evaluation, and that “[t]he failure to evaluate
[S.S.] denied her a FAPE.” AR 11. At the conclusion of the HOD, the Hearing Officer ordered
that “DCPS shall fund a comprehensive psychological evaluation at market rate within 10
business days.” AR 13. The HOD does not expressly address whether the new comprehensive
psychological evaluation was intended to remedy DCPS’s failure to evaluate S.S. in the 2015–
3
A public agency must ensure that a reevaluation of each child with a disability occurs at
least once every three years, unless the parent and the public agency agree that a reevaluation is
unnecessary. 34 C.F.R. § 300.303.
16
2016 school year, and consequently does not address how conducting a new evaluation (outside
the context of developing or reviewing an IEP) would adequately remedy the denial of a FAPE.
AR 11–13. The HOD also fails to address why no other form of relief — such as the
compensatory education that Ms. Shaw requested — was warranted. AR 11–13.
Ms. Shaw contends that the Hearing Officer erred by failing to explain how a new
comprehensive psychological evaluation could remedy the denial of a FAPE and should have
awarded further relief such as compensatory education. Pl.’s Mot. at 3–5. The District counters
that the evaluation was an appropriate remedy, given that S.S. was not expected to make
significant progress and had exceeded expectations without any compensatory education. See
Def.’s Opp’n at 11–13, Def.’s Reply at 2, 4.
The Hearing Officer’s failure to explain why an additional psychological examination
was an appropriate award, or whether it fully compensated S.S. for the FAPE denial, makes it
impossible to discern the reasoning underlying the Hearing Officer’s decision to deny more
extensive relief. The District contends that the Hearing Officer credited the testimony of its
expert witness, Latisha Chisholm, a Special Education Coordinator at Anacostia High School,
regarding the limited progress that S.S. could be expected to make due to her cognitive level, and
asks the Court to defer to that purported finding. See Def.’s Opp’n at 13. However, the HOD
did not address Ms. Chisholm’s testimony when discussing DCPS’s failure to evaluate S.S. or
when it selected a remedy.4 See AR 11, 13. Like the ruling that the D.C. Circuit reversed in
B.D., the HOD provided no “reasoned explanation” for the Hearing Officer’s apparent
conclusion that no additional education services were necessary to redress the denial of a FAPE
4
Indeed, the Hearing Officer implicitly rejected at least one of Ms. Chisholm’s conclusions,
by finding that DCPS had denied S.S. a FAPE despite Ms. Chisholm’s contrary assertion.
Compare AR 11 (finding that failure to evaluate denied S.S. a FAPE)
17
and wholly “failed to address the broader question of how to put [the student] in the educational
position he would be in but for the FAPE denial.” B.D., 817 F.3d at 799 (reversing hearing
officer ruling that partially rejected compensatory education proposal “without much
explanation”). Consequently, the Hearing Officer’s ruling merits little deference. See Reid, 401
F.3d at 521 (“[A] hearing decision without reasoned and specific findings deserves little
deference.”) (quoting Kerkan II, 931 F.2d at 87) (internal quotation marks omitted).
Notwithstanding the HOD’s lack of a reasoned explanation, the Court could uphold the
Hearing Officer’s decision to award only a future comprehensive psychological evaluation if the
Court independently determines that a new evaluation would fully alleviate the harm or lost
educational opportunities that S.S. suffered as a result of DCPS’s reliance on outdated
evaluations during the triennial review. See Reid, 401 F.3d at 521 (noting that where HOD failed
to explain reasoning for the relief awarded the district court should not have affirmed that ruling
without reviewing the record itself to ensure that the relief was appropriate). “[C]ompensatory
education is a customary award for denial of a FAPE, [but] it is not automatic.” Gill v. District
of Columbia, 751 F. Supp. 2d 104, 107 (D.D.C. 2010). In some cases, compensatory education
may be unwarranted “either because it would not help or because [the student] has flourished in
his current placement.” Phillips ex rel T.P. v. District of Columbia, 736 F. Supp. 2d 240, 247
(D.D.C. 2010). The District contends that this is such a case, citing Ms. Chisholm’s testimony
that S.S. had made some progress and could not reasonably be expected to make tremendous
progress. Def.’s Opp’n at 13. Ms. Shaw disagrees, and notes that DCPS’s failure to reevaluate
S.S. harmed S.S. because it caused her IEPs to contain inappropriate goals. Pl.’s Mot. at. 5.
The District’s implicit assumption that having updated evaluations would not have
impacted the educational services that S.S. received conflicts with the principles underlying the
18
triennial review requirement. The IDEA requires periodic reevaluations “to determine the
child’s needs and abilities.” James v. District of Columbia, 194 F. Supp.3d 131, 143 (D.D.C.
2016). “The role of [such] an evaluation is to contribute to the development of a sound IEP,”
and the failure to conduct one “means that [the student’s] IEP might not be sufficiently tailored
to her special and evolving needs [thereby] potentially compromis[ing] the effectiveness of the
IDEA’s protections.” Id. at 143–44. As Ms. Anthony testified, conducting a comprehensive
psychological evaluation and other assessments was necessary “in order to get a better picture of
who [S.S.] really is and what she really needs.” AR 837 (Anthony Test.). The data from such
assessments could be used to develop educational services — such as tutoring, training, or
classroom instruction — in areas that would address S.S.’s unique needs. Put simply, the
evaluation is a means to an end, and the District mistakenly portrays it as an end in itself.
Although it seems apparent that a new psychological evaluation is insufficient, standing
alone, to compensate S.S. for the denial of a FAPE, the record lacks sufficient evidence to enable
the Court to fashion an appropriate remedy. S.S. received a comprehensive psychological
evaluation in November 2018, which includes recommendations for vocational training and
counseling. See Comprehensive Psychological Evaluation, ECF 25-1. The witnesses who
testified at the due process hearing did not have the benefit of that recent evaluation and
therefore based their recommendations and conclusions on outdated data. The recent evaluation,
supplemented by expert testimony and S.S.’s education records, should provide a basis for
determining what services, if any, DCPS could have incorporated into S.S.’s IEP during the
2015–2016 school year if it had properly reevaluated S.S. during the triennial review. That
knowledge would provide a foundation for assessing how to redress those lost educational
opportunities and restore S.S. to the position she would have been in if she had been reevaluated.
19
Faced with such a deficiency in the record, the Court may either conduct a further
evidentiary inquiry itself or remand to the Hearing Officer. See Branham, 427 F.3d at 13 (noting
that “Reid permits the district court either to take supplemental evidence or to return the case to
the hearing officer”); Wilson v. District of Columbia, 770 F. Supp. 2d 270, 277 (D.D.C. 2011)
(noting that where record lacks sufficient information regarding compensatory education,
“remand or additional fact-finding is necessary”); see also B.D., 817 F.3d at 799–800 (directing
district court, on remand, to “either fashion a compensatory education award that seeks to put
[the student] in the educational position he would be in” absent a FAPE denial “or remand to the
Hearing Officer with instructions to do so”). Neither party has requested that the Court hear
evidence or supplement the record, and Ms. Shaw expressly requests that the Court remand the
matter to the Hearing Officer for further proceedings. See Pl.’s Mot. at 5; Pl.’s Reply at 5. The
undersigned recommends that the trial judge remand this issue with instructions that the Hearing
Officer conduct an additional hearing to determine the appropriate remedy and provide a detailed
explanation of her conclusion based on the evidence presented by the parties. In those
proceedings, the Hearing Officer should “craft an award that ‘aim[s] to place [the student] in the
same place [she] would have occupied but for the school district’s violations of [the] IDEA.’”
Lopez-Young v. District of Columbia, 211 F. Supp.3d 42, 54 (D.D.C. 2016) (quoting Henry v.
District of Columbia, 750 F. Supp. 2d 94, 99 (D.D.C. 2010)); Reid, 401 F.3d at 526 (directing
district court, on remand, to consider remanding to the hearing officer to craft an award of
compensatory education); see, e.g., Wilson, 770 F. Supp. 2d at 277 (remanding to the hearing
officer to craft an award of compensatory education); Walker v. District of Columbia, 786 F.
Supp. 2d 232, 239 (D.D.C. 2011) (same).
20
II. Whether the Hearing Officer Erred in Concluding that the Transition Plans
Incorporated into S.S.’s IEPs were Meaningful and Did Not Deny S.S. a FAPE.
Ms. Shaw also challenges the adequacy of the transition plans incorporated into S.S.’s
IEPs between February 2015 and April 2016. The IDEA mandates that every IEP for a student
who is at least sixteen years old must include “appropriate measurable postsecondary goals
based on age appropriate transition assessments related to training, education, employment, and
where appropriate, independent living skills.” 20 U.S.C. § 1414(d)(1)(A)(i)(VIII); see also
Middleton v. District of Columbia, 312 F. Supp. 3d 113, 141–142 (D.D.C. 2018) (discussing
scope of IDEA requirements concerning transition plans); Turner v. District of Columbia, 952 F.
Supp. 2d 31, 38–39 (D.D.C. 2013) (same). Transition services must be “based on the individual
child’s needs, taking into account the child’s strengths, preferences, and interests.” 20
U.S.C. § 1401(34)(B). A transition plan is designed to “improv[e] the academic and functional
achievement of a child with a disability, to facilitate the child’s movement from school to post-
school activities.” 34 C.F.R. § 300.43(a)(1).
The Hearing Officer determined that the transition plans incorporated into S.S.’s
February 2015, September 2015 and April 2016 IEP included appropriate goals. The transition
plans set several goals, including: that S.S. would contact a post-secondary educational program
or a workforce development center to ask questions about the programs, AR 70–71, 105–08,
223–24 (IEPs); that S.S. would independently and accurately complete a Social Security card
application and tax forms, AR 71(IEP); and that S.S. attend externship and job training, AR 70,
224 (IEPs). The Hearing Officer reasoned that,
While Student’s advocates may have selected other goals for her that may even
have been better suited to her needs, the transition goals her team selected were
reasonably connected to her expressed interest, her realistic prospects, and were
sufficiently ambitious to give her something substantive to strive toward without
being so ambitious that she could not achieve them with accommodations.
21
AR 12. Consequently, the Hearing Officer concluded that the transition plan did not
deny S.S. a FAPE.5 AR 12.
Ms. Shaw contends that the transition plans “were not reasonably calculated to facilitate
S.S.’s transition from high school to post-school life,” and that they included “lofty and
numerous” goals but failed to provide adequate instruction time for S.S. to master those goals.
Pl.’s Mot. at 6–7. To support that argument, Ms. Shaw asserts that S.S cannot tell time, cannot
take the metro by herself, cannot count money on her own, and lacks “math skills, reading skills,
common sense and memory.” Id. The District counters that Ms. Shaw has failed to identify any
harms caused by the alleged deficiencies in the transition plans, and therefore asks the Court to
uphold the Hearing Officer’s ruling. Def.’s Opp’n at 14.
A. Overview of S.S.’s Transition Plans
The transition plan included in S.S.’s February 24, 2015 IEP discussed several issues
pertinent to S.S.’s postsecondary transition including: S.S.’s interests and goals, AR 68; the
results of the Brigance Transition Skills Inventory Academic Assessment (“Brigance TSI”) and
the Casey Life Skills Assessment which measured S.S.’s academic skills, job-related writing
skills, and life skills, AR 68–70; annual transition goals for postsecondary education, training,
and employment, AR 70–71; and the recommended course of study related to S.S.’s
postsecondary goals and interests, id. The goals in the transition plan corresponded to S.S.’s
interests and the results of the assessments. For example, S.S. was unable to independently
complete a Social Security card application, AR 69, and the plan proposed an employment goal
5
The Hearing Officer determined that other aspects of the IEPs were “not per se a denial of
FAPE,” but “more likely than not” contained goals that were inappropriate. AR 12. Neither
party has sought judicial review of that ruling.
22
that S.S. complete a Social Security card application, I-9 Form, and a W-4 Form with 100%
accuracy. AR 71. Given that S.S had expressed interest in working at the Verizon Center and
Downtown Locker Room to gain exposure to multiple jobs, the plan proposed that S.S. attend a
community-based hospitality job training program upon graduation, and an “education and
training” goal of contacting a post-secondary program of interest and asking four questions about
the program via telephone. AR 68, 70. The plan projected that both goals would be achieved by
January 2016. AR 70–71. The plan further proposed that S.S. would meet quarterly with a
transitions coordinator, between January 2015 and January 2016, for a total of 480 minutes (eight
hours) per year to accomplish her transition goals. Id.The September 2015 IEP also included a transition plan. AR 105–08. It relied on the
Brigance TSI and Casey Life Skills Assessments that were conducted in January and February
2015. AR 105–07. The September 2015 transition plan repeated the same goals identified in the
February 2015 transition plan; that repetition was logical because the original projected
timeframe for achieving those goals continued through January 2016. Compare AR 105–07 with
AR 70–71. Indeed, the February 2015 and September 2015 transition plans are nearly identical,
except that the September 2015 plan references S.S.’s interest in attending college, leaving DC,
and “doing something in the field of culinary arts.” AR 105.
In furtherance of the transition plans’ goals, S.S. had opportunities to enroll in programs
designed to prepare her for post-school life. In December 2015, the DCPS Office of Specialized
Instruction accepted S.S. into the Competitive Employment Opportunities Exercises in
Transition Academy (“CEO EXIT”) Program, which would have provided 1.5 hours of training
per week from January 2016 to May 2016 on how to “navigate and manage the expectation of
postsecondary training or a workplace setting.” AR 9, 136. On March 10, 2016, S.S. applied to
23
the CVS Workforce Initiative, which places special needs students into positions at local CVS
stores. AR 9, 137–140. S.S. had expressed interest in a pharmacy technician position within the
CVS program, but if she lacked the skills to qualify for that position she might have been
assigned a more appropriate role. AR 9; AR 137, 451. The program would have placed S.S. at
CVS’s National Harbor location, and DCPS took steps to prepare her for traveling to that
location. AR 673 (Shaw Test.) (noting concerns with S.S.’s location placement at National
Harbor); AR 1001 (Nace Test.) (noting that teachers drew a map and traveled with S.S. to plan
her route); AR 1002 (Nace Test.) (describing DCPS’ partnership with a program that offered to
provide travel training to S.S.).
The April 25, 2016 IEP also contained a post-secondary transition plan, which built upon
the previous year’s transition plans and factored in more recent assessment results from Brigance
TSI and Casey Life Skills Assessment testing completed in April 2016. AR 223. The plan
discussed: S.S.’s interests and goals, id.; the results of the assessments, AR 223–25; and annual
transition goals for education, training, and placement, AR 223–24. The plan’s
recommendations reflected S.S.’s skills and interests. For example, S.S. had low scores on the
“Housing and Money Management” and “Work and Study Life” sections, so the transition plan
focused on developing “the work and study life habits that [would] prepare her to be successful
in training and education after graduating from high school.” AR 223. Given S.S.’s inability to
explain any details about the post-secondary program she had chosen, the plan proposed: (1) that
S.S. interview a representative from the workforce development center and ask the representative
at least four questions, AR 224; and (2) that S.S. complete 160 hours of CVS externship training
in the pharmacy technician track, AR 224. The plan targeted June 2016 as a deadline for
accomplishing those goals. AR 224. Ultimately, Ms. Shaw had concerns regarding S.S.’s ability
24
to travel to the CVS location and whether she had the requisite skill set to be a pharmacy
technician, and she did not allow S.S. to enroll in the CVS Workforce Initiative; consequently,
DCPS discontinued the travel training. AR 9; AR 1001–02 (Nace Test.).
B. Appropriateness of S.S.’s Transition Plans
Ms. Shaw has failed to meet her burden of showing that the Hearing Officer erroneously
deemed the transition plans appropriate. Although the Hearing Officer’s analysis was brief, it
was supported by record evidence and consistent with the applicable law. The transition plans
were based on S.S.’s needs and interests and included measurable goals based on transition
assessments, and therefore satisfy the requirements of the IDEA. Accordingly, the undersigned
recommends that the trial judge uphold the Hearing Officer’s conclusion that the transition plans
did not deny S.S. a FAPE.
First, the plans were based on “age appropriate transition assessments related to training,
education, employment, and . . . independent living skills.” 20 U.S.C. § 1414(d)(1)(A)(i)(VIII).
The Hearing Officer made a factual finding that the transition goals were based on the Brigance
TSI and Casey Life Skills Report, and the plans clearly identify those assessments as a data
source. AR 8, 68, 105, 223. Those assessments tested the subject areas identified in Section
1414(d)(1). AR 68–70, 105–07, 222–24. Mr. Nace’s testimony that those assessments were
appropriate for this context and properly administered supports the Hearing Officer’s factual
finding that the Brigance TSI was “age-appropriate” and that the Casey Life Skills Assessment
was “a reasonable assessment to use for [S.S.].” AR 8 (factual findings regarding
appropriateness and reasonableness of tests); AR 1014 (Nace Test.) (describing the Casey Life
Skills Report as an appropriate self-assessment transition tool for students to use to express their
interests); AR 1015–16 (Nace Test.) (noting that the Brigance TSI Assessments in education,
25
academic, and living assessments were appropriately administered). Ms. Shaw’s expert, Ms.
Anthony, characterized the Casey Life Skills report as “a phenomenal assessment.” AR 745.
Both assessments provided information regarding S.S.’s interests and her strengths and
ultimately informed her transition plans, as required under 20 U.S.C. § 1401(34)(B). Although
Ms. Anthony noted that additional Brigance TSI sub-assessments could have been valuable, AR
891–893, the statute does not require a school district to use every available test, and DCPS
reasonably relied on the data it possessed. Cf. Middleton, 312 F. Supp. 3d at 142 (concluding
that IDEA did not require school district to conduct the assessments that the parent preferred
instead of relying on the assessments it had selected). Ms. Shaw’s assertion that DCPS’s failure
to conduct new assessments in connection with the triennial review affected the accuracy of the
transition plans also lacks merit. The record clearly demonstrates that the transition plans were
based on the results of tests conducted in the same year that the plans were developed. AR 68–
70, 105–07, 222–24. Therefore, the FAPE denial that the Hearing Officer attributed to using
outdated assessments in the triennial review did not extend to S.S.’s transition plans.
The transition plans also were responsive to S.S.’s needs, “taking into account [her]
strengths, preferences, and interests.” 20 U.S.C. § 1401(34)(B). As discussed above, the plans
identified areas where S.S. had weak skills, proposed training and tasks aimed at ameliorating
those deficits, and also proposed training opportunities in areas in which S.S. had expressed an
interest. DCPS attempted to enroll S.S. into two work-based learning programs developed for
students with special needs, which would have given S.S. the type of experience that facilitates a
successful transition. AR 1016 (Nace Test.) (opining that the number one predictor of success
for students transitioning is paid work experience before the student graduates).
26
Ms. Shaw contends that DCPS aimed too high, and that the transition plans set unrealistic
goals given S.S.’s limitations and the limited time (eight hours) allocated for certain training.
However, DCPS’s expert explained the school’s philosophy to “not ever . . . tell a student that
they cannot do something . . . It’s actually far more important for them to realize what is feasible
for them to do as opposed to someone telling them they can’t do it because they don’t have the
math skills or the reading skills or what have you.” AR 997–98 (Nace Test.). Neither Ms. Shaw
nor the Court is an educational policy and curriculum expert, and ample record evidence
supports the Hearing Officer’s decisions. Accordingly, the Hearing Officer’s assessment of the
appropriateness of the goals warrants deference. Further, although the transition plans allotted
only eight hours of instruction time for certain skills, the CVS program would have provided up
to 160 hours of an externship through which S.S. could have gained meaningful transition skills.
Having elected not to allow S.S. to pursue that training, it is unreasonable for Ms. Shaw to fault
the District for failing to provide meaningful opportunities for S.S. to learn transition-related
skills.
For the foregoing reasons, the undersigned recommends that the trial judge uphold the
Hearing Officer’s determination that the transition plans satisfied the requirements of the IDEA
and therefore did not deny S.S. a FAPE.
III. Whether the District Denied S.S. a FAPE by Failing to Allow Ms. Shaw to
Participate in All Aspects of S.S.’s Educational Planning After S.S. Turned
Eighteen.
The parties dispute whether DCPS gave Ms. Shaw a sufficient opportunity to participate
in S.S.’s educational planning after S.S. turned eighteen and whether any such denial rose to the
level of denying S.S. a FAPE. The IDEA guarantees parents of children with disabilities the
opportunity to participate in the IEP process. See 20 U.S.C. §§ 1414, 1415(b)(1). Indeed, “[t]he
27
core of the statute . . . is the cooperative process that it establishes between parents and schools.”
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (citing Rowley, 458 U.S. at 205–06).
Typically, when a child with a disability reaches the age of majority under State law, all rights
accorded to parents under the IDEA transfer to the child. See 20 U.S.C. § 1415(m)(1).
However, states may establish procedures for appointing the student’s parent to represent the
student’s educational interests. Id. § 1415(m)(2). In the District of Columbia, a parent who is
delegated power of attorney becomes the student’s agent and has the right to make educational
decisions, receive notices, and participate in meetings and any other procedures related to the
student’s educational program on behalf of the student. See D.C. CODE § 38-2571.04.
The Hearing Officer determined that Ms. Shaw participated in several aspects of S.S.’s
educational planning after S.S.’s eighteenth birthday, and therefore concluded that DCPS did not
deny S.S. a FAPE. AR 12. The Hearing Officer based that conclusion on the following factual
findings: (1) that Ms. Shaw attended the September 2015 IEP meeting, AR 7, 12; (2) that the IEP
states, and the Special Education Coordinator testified, that Ms. Shaw attended the April 2016
IEP meeting by phone, but Ms. Shaw denied knowing about or attending that meeting, AR 7, 12;
and (3) that Ms. Shaw had other discussions with S.S.’s teachers and school staff after S.S.
turned eighteen, AR 12. The Hearing Officer also concluded that Ms. Shaw’s Durable Power of
Attorney for S.S. “does not prohibit Student from acting on her behalf, it merely permits Parent
to participate as a decision-maker.” AR 27.
Ms. Shaw contends that she was excluded from aspects of S.S.’s educational planning,
including an April 2016 IEP planning meeting.6 Pl.’s Mot. at 12. Ms. Shaw further argues that
6
Ms. Shaw also identifies the District’s failure to provide prior written notice of S.S.’s
graduation as an example of her exclusion from the educational process and faults the Hearing
Officer for failing to assess whether this denied S.S. a FAPE or to fashion a remedy. See Pl.’s
28
the school advocated for S.S. to speak for herself as an adult and told Ms. Shaw that she was
“babying” her daughter. AR 12; AR 673–64 (Shaw Test.); AR 663 (S.S. Test.). Ms. Shaw
asserts that her inability to fully participate in the educational process denied S.S. a FAPE. Pl.’s
Mot. at 11–12. The District counters that Ms. Shaw was an active participant and that S.S.’s
educational partners engaged with Ms. Shaw, as demonstrated by her participation in a
September 2015 IEP meeting. Def.’s Opp’n at 17. The District therefore asks the Court to
uphold the Hearing Officer’s resolution of this dispute.
Ms. Shaw had the right to participate in S.S.’s education after S.S. turned eighteen
because Ms. Shaw had Power of Attorney status. S.S. reached D.C.’s age of majority, eighteen
years old, in July 2015. See AR 671 (Shaw Test.). Ms. Shaw obtained Durable Power of
Attorney on November 5, 2015. AR 5; AR 131–35 (Durable Power of Attorney (“POA”)). The
Durable Power of Attorney authorized Ms. Shaw to “act as [S.S.’s] educational decision-maker
to the full extent that [S.S. could] act for [herself], including authority to . . . participate in any
education related discussion or meeting about [S.S.], determine educational placement, and . . .
make other school-related decisions.” AR 132 (POA).
Ms. Shaw has not carried her burden of demonstrating that the Hearing Officer
erroneously determined that Ms. Shaw continued to participate in the educational planning
process after S.S. turned eighteen. Ms. Shaw does not deny that she attended meetings for the
September 2015 IEP. Although Ms. Shaw claims not to have attended the April 2016 IEP
meeting, there was contrary evidence in the record. Compare AR 679, 683 (Shaw Test.) with
AR 207 (IEP) (listing participants). The IEP listed Ms. Shaw as an attendee by telephone, and
Mot. at 12–13. The Court will address that issue when it resolves Ms. Shaw’s challenge to
DCPS’s decision to graduate S.S., as the Hearing Officer considered those issues together.
29
the Special Education Advocate who attended that meeting testified that Ms. Shaw was present.
AR 207 (IEP); AR 943 (Chisholm Test.). The Hearing Officer’s conclusion that the record
precluded her from determining that Ms. Shaw missed that meeting implicitly contains a
credibility assessment; the Hearing Officer did not find Ms. Shaw’s testimony sufficiently
credible to overcome the evidence indicating that she attended the meeting. That assessment
warrants “particular deference.” R.D. ex rel. Kareem v. District of Columbia, 374 F. Supp. 2d
84, 89–90 (D.D.C. 2005) (“Where the Hearing Officer’s findings are based on credibility
determinations of live witness testimony, . . . and there is no supplementation of the record
before the Court, particular deference is due to the Hearing Officer’s decision.”).
Ms. Shaw’s assertion that teachers and school officials discouraged her from participating
in the decision-making process does not undermine the Hearing Officer’s ruling. According to
Ms. Shaw, the school refused to include her in educational decisions and told her that she was
“babying” her daughter. Id. at 12, AR 673–74. S.S. testified that when she asked for her mother
to be present at meetings regarding her educational planning, her teachers told her that she
should speak for herself as an adult. Id. at 13, AR 663. However, the Hearing Officer
determined that Ms. Shaw participated in some discussions with S.S.’s teachers and school staff
after S.S. turned 18. See AR 12. Although that conclusion appears under the “legal conclusions”
heading, it is a factual finding and therefore warrants deference absent “contrary nontestimonial
extrinsic evidence [in] the record.” Savoy, 844 F. Supp. 2d at 30. The testimony Ms. Shaw cites
cannot overcome that factual finding.
In sum, the record demonstrates that Ms. Shaw actively participated in the educational
planning process. Accordingly, the undersigned recommends that the trial judge uphold the
Hearing Officer’s resolution of this issue.
30
IV. Whether the District Denied S.S. a FAPE by Failing to Provide Prior Written
Notice of S.S.’s Graduation and Prematurely Graduating S.S. from High School.
The parties dispute two aspects of the HOD that pertain to S.S.’s graduation from
high school. First, Ms. Shaw argues that the Hearing Officer erroneously failed to
recognize that DCPS’s failure to provide prior written notice of S.S.’s upcoming high
school graduation constituted a denial of a FAPE that required a remedy.7 Pl.’s Mot. at
12–13. Second, Ms. Shaw contends that the Hearing Officer erroneously failed to
conclude that DCPS denied S.S. a FAPE by prematurely awarding her a high school
diploma despite her low level of academic performance and her inability to master certain
fundamental skills. Pl.’s Mot. at 8–9. The District contends that the Hearing Officer’s
rulings should be upheld because they are consistent with the law and supported by
record evidence. Def.’s Opp’n at 15–16; Def.’s Reply at 6–7.
A. The District’s Failure to Provide Prior Written Notice of S.S.’s Graduation
The IDEA mandates that “whenever the local educational agency . . . proposes to
initiate or change . . . [the] educational placement of the child,” the local educational
agency must send prior written notice. 20 U.S.C. § 1415(b)(3), (c)(1); 34 C.F.R.
§ 300.503(a). The prior written notice must include:
(1) A description of the action proposed or refused by the
agency;
(2) An explanation of why the agency proposes or refuses to
take the action; and
(3) A description of each evaluation procedure, assessment,
record, or report the agency used as a basis for the proposed or
refused action.
7
Although the Hearing Officer discussed this issue as part of her analysis of Ms. Shaw’s
challenge to DCPS’s decision to award a diploma to S.S. and graduate her from high school, Ms.
Shaw briefed this issue in conjunction with her broader claim that she was not permitted to
participate fully in the educational process. Compare AR 12 with Pl.’s Mot. 12–13.
31
34 C.F.R. § 300.503(b)(1)–(3); see also D.C. CODE § 38–2571.03. A failure to provide
prior written notice is a procedural violation of the IDEA, which constitutes a denial of a
FAPE only if it negatively impacts “the student’s substantive rights.” Lesesne, 447 F.3d
at 834. Procedural violations may rise to the level of denying a FAPE when they impede
“the child’s right to a [FAPE],” or “the parents’ opportunity to participate in the
decisionmaking process regarding the provision of a [FAPE],” or deprive a student of
“educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii); see also Brown, 179 F. Supp. 3d at
25 (“[T]here must be some rational basis to believe that procedural inadequacies
compromised the pupil’s right to an appropriate education, seriously hampered the
parents’ opportunity to participate in the formulation process, or caused a deprivation of
education benefits.”).
The Hearing Officer determined that DCPS failed to give Ms. Shaw or S.S. prior
written notice that S.S. was graduating and concluded that this “failure to receive the
PWN inhibited Parent’s ability to participate in providing FAPE to Student.” AR 13.
The Hearing Officer based that conclusion on the fact that the notice “would have
included information about other options the school considered and rejected, such as
allowing Student to remain at school beyond June 2016,” and Ms. Shaw’s testimony that
“while student would have objected, Parent would have been in favor of this option.” Id.
As the District did not appeal this ruling, the Court has no grounds to reconsider or
disturb the Hearing Officer’s conclusion.
Despite having concluded that the lack of prior written notice “inhibited” Ms.
Shaw’s participation in the provision of a FAPE, the Hearing Officer did not formally
rule that this omission constituted a denial of a FAPE. AR 13. Consequently, the
32
Hearing Officer appears not to have evaluated whether and how to remedy the lack of
prior written notice. Ms. Shaw contends that failing to provide the prior written notice
denied S.S. a FAPE because it excluded Ms. Shaw from participating in a key
educational decision (whether to graduate or remain in school) and thereby “drastically
changed the course of S.S.’s education.” Pl.’s Mot. at 13. As a remedy, Ms. Shaw asks
the Court to reverse the Hearing Officer’s ruling and remand so that the Hearing Officer
can award compensatory education to redress the FAPE denial. Pl.’s Mot. at 14; Pl.’s
Reply at 11. The District did not directly address the lack of prior written notice in its
briefs, and instead focused on Ms. Shaw’s broader challenge to her ability to participate
in the educational process. See Def.’s Opp’n; Def.’s Reply.
The Hearing Officer’s findings compel the conclusion that the lack of prior written notice
denied S.S. a FAPE. Prior written notice is intended to “provide sufficient information to protect
the parents’ rights under the Act” and “enable the parents to make an informed decision whether
to challenge the DCPS’s determination and to prepare for meaningful participation in the due
process hearing on their challenge.” Middleton, 312 F. Supp. 3d at 135 (quoting Jalloh v.
District of Columbia, 968 F. Supp. 2d 203, 213 (D.D.C. 2013)) (internal citations omitted).
Accordingly, a failure to provide prior written notice constitutes a denial of a FAPE where, as
here, it significantly inhibits a parent’s ability to make informed decisions about important
educational issues, such as S.S.’s upcoming graduation. Cf. Brown, 179 F. Supp. 3d at 27–28
(concluding when reviewing omissions in an IEP that a procedural defect “deprives a student of
a FAPE if it ‘significantly impeded the parents’ opportunity to participate in the decisionmaking
process regarding the provision of a free appropriate public education to the parents’ child’”)
(quoting 20 U.S.C. § 1415(f)(3)(E)(ii)). As the Hearing Officer acknowledged, due to the lack of
33
prior written notice of S.S.’s graduation, Ms. Shaw was not aware of the full ambit of
alternatives to graduation, and thus did not know that S.S. was eligible to remain in school until
she was twenty-two years old. AR 13; AR 678–680 (Shaw Test.). Ms. Shaw would have
recommended pursuing alternatives to graduation if she had been informed of those options. Id.Had those objections been heeded, S.S. might have continued to attend Anacostia High School
for a longer period of time and could have received additional education during her enrollment.
Accordingly, depriving Ms. Shaw of an opportunity to advocate that S.S. remain in school
constitutes a FAPE denial. See Brown, 179 F. Supp. 3d at 27 (concluding that failure to fully
describe a component of an IEP denied student a FAPE because it “effectively deprived plaintiff
of the opportunity ‘to understand what services [would] be provided and make a determination
about whether a proposed placement [wa]s adequate’”) (quoting N.S. ex rel. Stein v. District of
Columbia, 709 F. Supp. 2d 57, 70 (D.D.C. 2010)).
For the foregoing reasons, the undersigned recommends that the trial judge hold that the
failure to provide prior written notice denied S.S. a FAPE and remand this issue so that the
Hearing Officer can determine the appropriate remedy for this FAPE denial. Although S.S. has
graduated high school, it may be possible to fashion an award of compensatory education to cure
the harm caused by the school’s failure to inform Ms. Shaw that S.S. could have extended her
time at school, i.e. by providing education or training comparable to what S.S. would have
received if her graduation had been deferred.
B. DCPS’s Decision to Award S.S. a Diploma and Graduate Her from High
School.
The IDEA and local laws require DCPS to provide a “free appropriate public
education” to all handicapped children between ages three to twenty-two. 5-E D.C.M.R.
§ 3002.1(a); 20 U.S.C. § 1412(a)(1). Under D.C. law, that obligation ends once a student
34
graduates from high school with a regular high school diploma. See 5-E D.C.M.R.
§ 3002.2 (c). The Supreme Court has interpreted the IDEA’s FAPE requirement to mean
that States must provide “‘a basic floor of opportunity . . . individually designed to
provide educational benefit to the handicapped child.’” Leonard by Leonard v.
McKenzie, 869 F.2d 1558, 1561 (D.C. Cir. 1989) (quoting Rowley, 458 U.S. at 200–01).
Congress recognized that “providing special education and related services to
handicapped children is not guaranteed to produce any particular outcome.” Rowley, 458
U.S. at 192 (quoting S. Rep. No. 94–168, at 11 (1975)). “Thus, the intent of the Act was
more to open the door of public education to handicapped children on appropriate terms
than to guarantee any particular level of education once inside.” Id. Consequently,
educational programs are not required to “maximize the potential of handicapped
children,” but must provide programming “sufficient to confer some educational benefit.”
Rowley, 458 U.S. at 189, 200.
The parties dispute whether allowing S.S. to graduate with a diploma in 2016,
when her academic skills were between a third- and fifth-grade level, satisfied the school
district’s obligation to provide her a FAPE. Ms. Shaw contends that S.S.’s graduation
was a “social promotion” which inappropriately pushed S.S. out of the school system
before she had an adequate academic foundation. Pl.’s Mot. at 9–10. The District argues
that it was reasonable to award S.S. a diploma because she adamantly desired to graduate
that year, and suggests that, due to S.S.’s Intellectual Disability, S.S. would have been
unlikely to make significant academic progress even if she had remained in school.
Def.’s Opp’n at 15.
35
The Hearing Officer made several factual findings that are pertinent to this issue,
which must be presumed to be correct absent nontestimonial evidence that contradicts
those findings. First, the Hearing Officer found that S.S. “was adamant that she wanted
to graduate.” AR 6. The Hearing Officer further determined that although an IEP team
can recommend that a student remain in school after age eighteen, “if a student has met
the graduation requirements and has stated (along with their parent) that they want to
leave, DCPS is not allowed to overrule the parent and student.” AR 6–7. The Hearing
Officer acknowledged that when she graduated, S.S. “was performing between a 3rd and
5th academic grade level.” AR 7. However, the Hearing Officer concluded that “[a]
student with an Intellectual Disability would not be expected to be on grade level at
graduation. Based on Student’s cognitive abilities, she would not be expected to reach
grade level prior to graduating. Student’s Intellectual Disability will limit the amount of
academic progress she will be able to make.” AR 7.
The Hearing Officer concluded that DCPS did not deny S.S. a FAPE by
permitting her to graduate with a diploma on time and declining to counsel her to delay
her graduation. AR 13. The Hearing Officer relied heavily on the fact that S.S. wished
to graduate, emphasizing that “Student and Parent consistently opted to maintain Student
on the high school diploma track throughout her time at District School.” AR 12; see
also AR 13 (“Student, including as an adult, was adamant about graduating at the
originally scheduled time.”). The Hearing Officer acknowledged that “there remain gaps
in [S.S.’s] academic knowledge and functional skills,” but deemed that “not necessarily
unanticipated for a student with an Intellectual Disability.” Id. The Hearing Officer also
observed that if Plaintiff’s counsel and her Educational Advocate had been involved in
36
the IEP process, they might have provided input regarding whether S.S. should graduate
as soon as she was eligible to do so, but reasoned that by choosing a diploma track
“Parent, Student, and the rest of Student’s IEP team selected a permissible option.” Id.Therefore, the Hearing Officer rejected Ms. Shaw’s challenge to S.S.’s graduation. Id.The Hearing Officer’s ruling, and the District’s arguments urging affirmance of
that ruling, rest on the assumption that a disabled student’s wishes dictate whether that
student should be permitted to graduate on the diploma track instead of being awarded a
certificate or remaining in school beyond age eighteen. However, the HOD cites no law
or precedent to support that assumption. The Hearing Officer based her factual finding
that DCPS cannot overrule a student’s desire to graduate if both the student and the
parent wish to leave and the student has met the graduation requirements on the
testimony of Ms. Anthony, an Educational Advocate and Plaintiff’s expert witness. AR
6; see also AR 874 (Anthony Test.). However, Ms. Anthony’s testimony cannot fairly
be interpreted to indicate that she believed that DCPS had to acquiesce to S.S.’s desire to
graduate under the circumstances present in this case. She acknowledged, on cross-
examination, that DCPS could not force a student who meets graduation criteria and who
(along with his parent) wishes to graduate to remain in school against his wishes. AR
874 (Anthony Test.). However, Ms. Anthony did not assert that S.S. met the criteria for
graduating with a diploma. To the contrary, Ms. Anthony believed that S.S. was not
ready to graduate and that the IEP team should have met with S.S. and Ms. Shaw to
recommend that, based on S.S.’s relative lack of progress and regression in certain areas,
S.S. extend her time in high school. AR 702, 831–33 (Anthony Test.).
37
Even assuming that the Hearing Officer correctly concluded that DCPS must
defer to a student’s and parents’ wishes in certain situations, the Hearing Officer did not
make sufficient factual findings to establish that S.S.’s case presented such a situation –
the HOD contains no analysis of what the diploma requirements were at Anacostia High
School in the 2015–2016 school year or whether S.S. had met them. Instead, the Hearing
Officer simply noted in the factual findings that S.S. would not have been expected to
perform at grade level in order to graduate. AR 7.
Finally, even if Ms. Shaw initially concurred in the decision to place S.S. on the
diploma track during the IEP process, the Hearing Officer acknowledged that Ms. Shaw
likely would have objected to S.S.’s graduation if she had been advised of the
alternatives, such as deferring graduation until a later date. Therefore, it is unreasonable
to accord substantial weight to Ms. Shaw’s purported prior agreement that S.S. should
graduate on time. In sum, the Hearing Officer’s factual finding that DCPS must honor a
student’s desire to graduate under certain hypothetical circumstances does not support a
factual or legal conclusion that DCPS was required to honor S.S.’s desire to graduate
under the circumstances present in this case.
As noted, the touchstone of whether a school district has provided a FAPE is
whether the student derives an adequate “educational benefit” from the services the
school provides. Endrew, 137 S. Ct at 996. Neither party has cited precedent applying
those principles to the question presented here — whether the school district prematurely
terminated the student’s education by awarding her a high school diploma when she was
performing at an elementary school grade level. The decision whether to place a student
on the diploma track is an educational placement decision made in conjunction with the
38
development and implementation of the student’s IEP. See Middleton, 312 F. Supp. 3d at
131 (concluding that “the decision whether to put a student on diploma or certificate track
constitutes an educational placement under the IDEA because it undoubtedly shapes
fundamental elements of the student’s programming”); Dixon v. District of Columbia, 83
F. Supp. 3d 223, 227 (D.D.C. 2015) (noting that IEP team discussed instructional
requirements necessary to place student on the diploma track). Accordingly, cases in
which a parent challenges the sufficiency of an IEP or the educational placement
decisions contained therein are the most analogous lines of precedent. The Court will
draw on precedent from those contexts to frame its analysis of the instant dispute.
Treating S.S.’s wishes as dispositive of whether DCPS should have awarded her a
diploma diverges from the analysis courts typically apply when evaluating challenges to a
student’s IEP and educational placement decisions. Courts reviewing IEPs assess
whether an IEP is “reasonably calculated to enable a child to make progress appropriate
in light of the child’s circumstances,” Endrew, 137 S. Ct. at 999, instead of simply asking
whether the IEP reflects the student’s or parent’s preferences. Cf. Shaw v. District of
Columbia, 238 F.Supp. 2d 127, 139 (D.D.C. 2002) (noting that the while the IDEA
guarantees a free and appropriate education, it does not provide that a student’s education
“will be designed according to the parent’s desires”); see Rowley, 458 U.S. at 207 (“The
primary responsibility for formulating the education to be accorded a handicapped child,
and for choosing the educational method most suitable to the child’s needs, was left by
the Act to state and local educational agencies in cooperation with the parents or guardian
of the child.”). Courts apply the same standard when reviewing challenges to educational
placement decisions, assessing whether the placement was designed to permit appropriate
39
progress for the student instead of focusing on the student’s or parent’s desires. See, e.g.,
Middleton, 312 F. Supp. 3d at 138–39 (concluding “testimony that a diploma track
placement would make [the student] feel ‘successful’ and bolster his self esteem is
evidence far too thin” to support school’s decision to place the student on a diploma
track). Accord Aaron P. v. Dep’t of Educ., Haw., No. 10–574, 2011 WL 5320994, at
*32 (D. Hawai’i Oct. 31, 2011) (concluding that while the court was sympathetic to
parents’ frustration that their child had not progressed “as much as they wanted her to,”
the IDEA requires the court to ascertain whether the student gained educational benefit
instead of basing decision on the parents’ desire for additional resources in the IEP) (cited
by K.S. v. District of Columbia, 962 F. Supp. 2d 216, 221–22 (D.D.C. 2013)). As the
Third Circuit has recognized, “a child’s entitlement to special education should not
depend upon the vigilance of the parents (who may not be sufficiently sophisticated to
comprehend the problem) . . . Rather, it is the responsibility of the child’s teachers,
therapists, and administrators—and of the multi-disciplinary team that annually evaluates
the student’s progress—to ascertain the child’s educational needs, respond to
deficiencies, and place him or her accordingly.” M.C. ex rel. J.C. v. Cent. Reg’l Sch.
Dist., 81 F.3d 389, 397 (3d Cir. 1996). The District has cited no precedent that supports
the notion that a school district may cede its responsibility to craft an appropriate
educational plan or educational placement to the parents or a student.
Deferring to a student’s desire to graduate notwithstanding her relative lack of
academic skills also may violate D.C. law. When litigating a different IDEA case
involving an IEP developed in 2015, the District asserted that D.C. regulations establish
minimal academic requirements that a student must complete to receive a high school
40
diploma. See Middleton, 312 F. Supp. 3d at 131–32 (citing D.C. Mun. Regs. Tit. 5–A.
§ 2203.1). The record in Middleton and applicable regulations indicated that “[t]o pass
each diploma-track course students, including those with disabilities, must demonstrate
curriculum standard knowledge.” Middleton, 312 F. Supp. 3d at 131 (discussing
regulatory requirements). The regulations required students to complete certain
coursework in specific subject areas and established minimum coursework requirements
in specific academic subject areas, including “Algebra 1, Geometry, and Algebra II at a
minimum.” D.C. Mun. Regs. Tit. 5—A. § 2203.3. Disabled students who are unable to
meet those criteria may graduate with a “IEP Certificate of Completion.” Id. § 2203.8;
Middleton, 312 F. Supp. 3d at 132. Here, neither the HOD nor the District addressed
those regulations, and therefore the record does not establish whether those requirements
applied here8 and, if so, whether S.S. could reasonably have been expected to meet those
requirements through courses tailored to her disabilities. See AR 13. Given that S.S. was
performing at a third to fifth grade level academically, it seems unlikely that S.S. could
meet the minimum standards codified in Section 2203.3, which required geometry and
Algebra II.
Although the Hearing Officer did not address any applicable regulatory
requirements governing S.S.’s eligibility for a high school diploma, the HOD does briefly
discuss witnesses’ testimony regarding the requirements for placing a student on the
diploma track. Specifically, the HOD cites the testimony of Plaintiff’s educational
8
The regulations establish a process for schools to request waivers of the curricular
requirements beginning in the 2016–2017 school year. D.C. Mun. Regs. Tit. 5—A. § 2203.7. It
is unclear whether a similar exemption was available while S.S. was enrolled at Anacostia High
School, and the record contains no evidence that the school had requested or successfully
obtained a waiver.
41
advocate, Ms. Anthony, to support a factual finding that IEPs for students on the high
school diploma track must contain academic goals aligned to the Common Core
standards and that the student may be given accommodations to make the goals more
attainable. AR 6; AR 868–69 (Anthony Test.). Ms. Chisholm (the District’s expert in
special education placement and programming) opined that IEPs must address Common
Core standards, and that students’ work may be adjusted to facilitate their ability to
progress towards those standards. AR 940–942 (Chisholm Test.). Neither Ms.
Chisholm nor Ms. Anthony addressed whether the Common Core standards impose
minimal academic requirements as prerequisites to achieving a diploma, or whether
modified Common Core goals could substitute for the specific curricular requirements
codified in Section 2203.3. Instead, Ms. Chisholm tied graduation to a student’s ability
to “mak[e] progress on the diploma track.” AR 6; AR 965 (Chisholm Test.).
Consequently, the Hearing Officer did not quantify the amount of progress that a student
must make towards the Common Core grade level goals to be eligible to graduate with a
diploma.
Due to the analytical deficiencies discussed above, the Hearing Officer’s
resolution of this issue does not warrant deference. The Hearing Officer clearly
misframed the issue by focusing on S.S.’s ‘adamance’ to graduate and failing to address
whether timely graduation on the diploma track was an appropriate and realistically
attainable educational plan for S.S. The more difficult question to answer is whether
DCPS’s decision to award S.S. a diploma despite her academic shortcomings denied her
a FAPE, or whether S.S. received all the educational benefits to which she was entitled
prior to her graduation.
42
The Hearing Officer and the District defend S.S.’s graduation by implying that
S.S. would not have benefited from further education given the nature of S.S.’s
disability. AR 13; Def.’s Opp’n at 15. Declining to extend S.S.’s high school education
based on an assumption that her disability would render further education fruitless is at
odds with the principles that underlie the IDEA. As the Supreme Court has recognized,
“a student offered an educational program providing merely more than de minimis
progress from year to year can hardly be said to have been offered an education at all.
For children with disabilities, receiving instruction that aims so low would be tantamount
to sitting idly . . . awaiting the time when they were old enough to drop out. The IDEA
demands more.” Endrew, 137 S. Ct. at 1001 (articulating standards that should govern a
court’s evaluation of the adequacy of an IEP) (internal quotation marks omitted).
To be sure, the IDEA “stops short of requiring public schools to provide the best
possible education for the individual child, or an education equal to that of non-disabled
peers.” Z.B. v. District of Columbia, 888 F.3d 515, 519 (D.C. Cir. 2018). It requires only
that education services be tailored to a student’s “unique needs.” In some cases, a
student’s unique attributes may preclude her from achieving much more than de minimis
academic progress. In those circumstances, the student’s lack of progress does not prove
that the school denied the student a FAPE. See J.B. ex rel. Belt v. District of Columbia,
325 F. Supp. 3d 1, 9 (D.D.C. 2018) (concluding that Endrew “certainly does not stand for
the proposition that any time a child makes negligible (or uneven) academic progress, the
school system has violated the IDEA”).
The record does not establish that S.S. was incapable of progressing beyond the
academic and functional skills she had attained as of her graduation, and therefore does
43
not support the District’s assumption that it would have been unrealistic to set any further
academic goals for S.S. to attain before awarding her a diploma. The District cites Ms.
Chisholm’s testimony that “[a] student with intellectual disability is expected to make
limited progress, that is a function of the disability, and so under no circumstances would
[she] expect S.S. who qualifies for intellectual disability, to make tremendous progress.”
AR 950 (Chisholm Test.); see Def.’s Opp’n at 15. However, Ms. Chisholm also
concluded that data from S.S.’s assessments demonstrated that S.S. had made progress on
her IEP goals9 and was making progress towards receiving her diploma. AR 965
(Chisholm Test.) (“The data showed us that she was making progress on the diploma
track.”); AR 950 (Chisholm Test.) (noting that S.S. made some progress on the goals in
her IEP). For the 2014–2015 school year, S.S.’s teachers reported consistent progress in
a range of subject areas, with mastery in goals in the Communication/Speech and
Language subject area and Emotional, Social, and Behavior Support subject areas. See
AR 75–85. A year later, S.S.’s April 2016 Progress Report noted that S.S. was
“progressing” in each subject area but lacked specific commentary on what that progress
entailed. See AR 240–50. There is no reason to presume that S.S. would have failed to
make similar incremental progress if she had remained at Anacostia High School for
another year.
At bottom, there are too many gaps in the record for the Court to conclusively
determine whether DCPS’s decision to graduate S.S. and award her a diploma deprived
9
Ms. Chisholm identified several data points that purportedly demonstrated S.S.’s progress.
For example, the materials attached to S.S’s diploma reveal that S.S.’s Scholastic Reading
Inventory (SRI) score increased from 691 to 772 from September 2014 to May 2016. AR 261–
262. However, the record provides no context for these increased scores, and it is therefore
unclear whether that reported progress is substantial.
44
her of an “appropriate” education. First, DCPS’s failure to re-evaluate S.S. during the
triennial review makes it difficult to identify the baseline by which her skills and
accomplishments should be measured. Second, the lack of evidence regarding the
curricular requirements Anacostia High School students must meet before graduating
with a diploma impedes any assessment of whether S.S. could realistically be expected to
achieve those requirements or derive more than a minimal educational benefit from
courses tailored to those requirements. Relatedly, without knowing how S.S.’s progress
(or lack thereof) aligns with the diploma track requirements, the Court cannot evaluate
whether S.S.’s purported “progress on the diploma track,” made it reasonable to keep her
on that track, AR 965 (Chisholm Test.), or whether her relative lack of progress should
have alerted school officials that she was not ready to graduate. Absent such information,
the Court cannot ascertain whether S.S.’s graduation was simply a ‘social promotion’ or
an appropriate goal in an educational plan tailored to S.S.’s unique educational needs.
Finally, the witnesses’ failure to engage in any substantive discussion of whether the
certificate track presented a viable alternative for a student with S.S.’s skillset makes it
impossible to ascertain whether placing S.S. on the certificate track or deferring her
graduation would have more appropriately addressed S.S.’s academic and functional
needs than awarding her a diploma in 2016.10 See AR 865 (Anthony Test.)
10
Troublingly, the District appears to view placement on the diploma track as a “default”
choice, instead of recognizing that it is an educational placement decision that must be
scrutinized to ensure that it is reasonably calculated to provide the student with educational
benefits. See AR 965 (Chisholm Test.) (stating that placing students on the diploma track is the
“default” absent data showing that the student was not capable of progress). Placing a student on
the path to a diploma is a significant educational placement decision, and making that decision
by default instead of in response to student’s’ individual needs “is antithetical to the spirit and
letter of the IDEA.” Middleton, 312 F. Supp. 3d at 132.
45
(acknowledging on cross-examination that the certificate track is an alternative to a
diploma track); see also D.C. Mun. Regs. Tit. 5—A. § 2203.8 (noting that students with
special needs who cannot achieve a diploma are “eligible to receive an Individual
Educational Program (IEP) Certificate of Completion”).
For the foregoing reasons, the undersigned recommends that the trial judge
remand this issue so that the Hearing Officer can further develop the record and
determine in the first instance whether the decision to award S.S. a diploma satisfied
DCPS’s obligation to provide S.S. a FAPE. The unanswered factual questions identified
above are all germane to assessing whether DCPS’s decision to award S.S. a diploma
prematurely deprived S.S. of further educational benefits to which she was entitled.
Although this Court could independently conduct evidentiary hearings to supplement the
record, resolving this issue is likely to implicate educational policy concerns that fall
within the Hearing Officer’s expertise. Clear remand instructions should prevent the
Hearing Officer from repeating the same mistakes that undermine the conclusions drawn
in the February 2017 HOD.
RECOMMENDATION
For the reasons set forth in detail above, the undersigned recommends that the
Court grant-in-part and deny-in-part Plaintiff’s Motion for Summary Judgment, and
grant-in-part and deny-in-part Defendant’s Cross-Motion for Summary Judgment.
Specifically, the undersigned recommends that the trial judge: (1) grant Plaintiff’s motion
insofar as it challenges the Hearing Officer’s decision to award only a new psychological
assessment and direct the Hearing Officer to provide a detailed evidence-based analysis
of the appropriate relief necessary to redress DCPS’s reliance on outdated evaluations
46
during the triennial review; (2) deny Plaintiff’s motion insofar as it challenges the
Hearing Officer’s finding that there was a denial of a FAPE based on an inappropriate
transition plan; (3) grant Plaintiff’s motion insofar as it seeks a ruling that the District
denied S.S. a FAPE by failing to provide prior written notice of S.S.’s graduation and
remand for the Hearing Officer to determine an appropriate remedy; (4) (a) grant
Plaintiff’s motion insofar as it seeks to reverse and remand the Hearing Officer’s decision
that the District did not prematurely graduate S.S. from school and (b) remand the matter
to the Hearing Officer to further develop the record to determine whether the District
denied S.S. a FAPE by awarding her a diploma in 2016 and then fashion an appropriate
remedy if the Hearing Officer finds that S.S.’s graduation denied S.S. a FAPE.
REVIEW BY THE DISTRICT COURT
The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the
United States District Court for the District of Columbia, any party who objects to this Report
and Recommendation must file a written objection thereto with the Clerk of this Court within 14
days of the party’s receipt of this Report and Recommendation. The written objections must
specifically identify the portion of the report and/or recommendation to which objection is made,
and the basis for such objections. The parties are further advised that failure to file timely
objections to the findings and recommendations set forth in this report may waive their right of
appeal from an order of the District Court that adopts such findings and recommendation. See
Thomas v. Arn, 474 U.S. 140 (1985).
2019.02.08
February 8, 2019 14:54:51 -05'00'
Dated:
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
47