District of Columbia International Public Charter School v. Lemus ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DISTRICT OF COLUMBIA
INTERNATIONAL CHARTER SCHOOL,
Plaintiff,
V.
Case No. 21-cv-0223 (RCL)
ANA LEMUS,
Defendant.
MEMORANDUM OPINION
Orlin Cruz Lemus ("Orlin"), a student with a disability, enrolled in the District of Columbia
International Charter School ("DCI") in the sixth grade. Nearly three years later, Orlin's
mathematics, reading, and written expression skills had either stayed the same or worsened. After
DCI expelled Orlin for disciplinary reasons, his mother, Ana Lemus ("Lemus"), administratively
appealed to the Office of the State Superintendent of Education seeking, among other things, a
determination that DCI denied Orlin a free appropriate public education. After the Office
determined that DCI indeed failed to provide an appropriate education, DCI appealed the
administrative determination to this Court, seeking declaratory and injunctive relief. Both DCI and
Lemus moved for summary judgment. For the reasons that follow, the Court will GRANT IN
PART AND DENY IN PART DCI's motion for summary judgment, GRANT IN PART AND
DENY IN PART Lemus's motion for summary judgment, and VACATE IN PART the
administrative determination, and REMAND the case to the Office of the State Superintendent of
Education for further proceedings.
1
I. STATUTORY BACKGROUND
A. Individuals with Disabilities Education Act ("IDEA") 1
"Under the Individuals with Disabilities Education Act (known as ' IDEA'), states and
territories, including the District of Columbia, that receive federal educational assistance must
establish 'policies and procedures to ensure,' among other things, that 'free appropriate public
education,' or 'FAPE, ' is available to disabled children." Reid ex rel. Reid v. Dist. of Columbia,
401 F.3d 516,518 (D.C. Cir. 2005) (quoting 20 U.S.C. § 1412(a)(l)(A)). Under the IDEA,
school districts "must ensure that ' [a]11 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, and evaluated.'" Id. at 518-19 (quoting 20 U.S.C.
§ 1412(a)(3)(A)).
When a child with a disability is identified, an Individualized Education Program Team
("IEP Team")-a multidisciplinary group including the child's teachers and parents--creates an
Individualized Education Program ("IEP") to provide "personalized instruction with sufficient
support services to permit the child to benefit educationally from that instruction." Id. at 519(quoting Bd. ofEduc. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458
U.S. 176,203 (1982)); 20 U.S.C. §§ 1412(a)(4), 1414(d). An IEP "sets out, in writing, the
student's existing levels of academic and functional performance, establishes appropriate goals,
and describes how the student's progress toward those goals will be measured." Z.B. v. Dist. of
Columbia, 888 F.3d 515, 519 (D.C. Cir. 2018) (citing 20 U.S.C. § 1414(d)(l)(A)(i)(I)-(III)).
1
Congress revised the IDEA through the Individuals with Disabilities Education Improvement Act of 2004
("IDEIA") and the IDEIA is now the governing statute. Brooks v. Dist. of Columbia, 841 F. Supp. 2d 253, 254 & n. l
(D.D.C. 20 12). That said, courts use the terms IDEA and IDEIA interchangeably when discu sing provi ion present
in both statute . Phillips ex rel. TP. ii. Dist. of Columbia, 7% F. Supp. 2d 240,245 n.3 (D.D.C. 2010). Here, the
Court will use the more common "IDEA," as the IDEIA did not modify the statutory provisions relevant here.
2
Similarly, any proposed change to a student's IEP must be provided to the student's parent in
writing. Middleton v. Dist. of Columbia, 312 F. Supp. 3d 113, 130 (D.D.C. 2018) (citing 20
U.S.C. § 1414; 34 C.F.R. §§ 300.116(a), 300.327, 300.501(b), 300.503(a)).
B. Standards for Appropriate IEP Development
"To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably
calculated to enable a child to make progress appropriate in light of the child's circumstances."
Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). At a
minimum, "[t]he IEP must aim to enable the child to make progress." Id. Although the Supreme
Court has declined to define the specific contours of "progress," the Court has emphasized that
"this standard is markedly more demanding than the 'merely more than de minimis' test" applied
by some lower courts. Id. at 402. According to the Court, "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." Id. at 402-03. This is because "[f]or 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."' Id. at 403 (quoting Rowley, 458 U.S. at 179).
"The key inquiry regarding an IEP's substantive adequacy is whether, taking account of
what the school knew or reasonably should have known of a student's needs at the time, the IEP
it offered was reasonably calculated to enable the specific student's progress." Z.B., 888 F.3d at524 (citing Endrew F., 580 U.S. at 400). "[T]hat standard calls for evaluating an IEP as of the time
each IEP was created rather than with the benefit of hindsight." Id. (internal quotation marks
omitted). While a court reviewing an IEP's adequacy "must appreciate that the question is whether
the IEP is reasonable, not whether the court regards it as ideal," id. at 528 (citing Endrew F., 580
3
U.S. at 399) (emphases in original), a school fails its obligations under the IDEA when the student
is unable to achieve progress. Endrew F., 580 U.S. at 398.
C. IDEA Due Process Hearing and Judicial Review
If a parent of a child with a disability disagrees with the school over "what a child's IEP
should contain," the IDEA provides a right to appeal to "an impartial due process hearing," 20
U.S.C. § 1415(±), and a "right to be accompanied and advised by.counsel" during such hearing. Id.§ 1415(h)(l). A qualified impartial hearing officer presides over the due process hearing in
accordance with the Act. Id. § 1415(±)(3). In the District of Columbia, "the party who filed for the
due process hearing shall bear the burden of production and the burden of persuasion" at that
hearing. D.C. Code Ann. § 38-2571.03(6)(A) (West 2015). When the dispute involves "the
appropriateness of the child's individual educational program or placement," and the parent
"establish[es] a prima facie case" that such IEP or placement is inappropriate, then "the public
agency shall hold the burden of persuasion." Id. After the hearing, the hearing officer issues a
hearing officer determination. 20 U.S.C. § 1415(f)(l)(E). When a hearing officer concludes that a
student has been denied a FAPE, the hearing officer has "broad discretion to fashion an appropriate
remedy, which can go beyond prospectively providing a FAPE, and can include compensatory
education." B.D. v. Dist. a/Columbia, 817 F.3d 792, 797-98 (D.C. Cir. 2016) (internal quotation
marks omitted and citation omitted); 20 U.S.C. § 1415(i)(2)(C)(iii).
Either the school or the parent may appeal the hearing officer's determination through a
civil action brought in either state or federal court. Id. § 1415(i)(2)(A). The reviewing court has
jurisdiction to receive the record of the administrative proceeding, to hear additional evidence at
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the request of a party, and "basing its decision on the preponderance of the evidence, [to] grant
such relief as the court determines is appropriate." Id. § 1415(i)(2)(C).
II. FACTUAL BACKGROUND
As the parties are aware, this District has supplemented Federal Rule of Civil Procedure
56 with Local Civil Rule 7(h). In general, each party moving for summary judgment must submit
"a statement of material facts as to which the moving party contends there is no genuine issue,"
and each party must submit with their opposition "a statement of genuine issues setting forth all
material facts as to which it is contended there exists a genuine issue necessary to be litigated."
Local Civil Rule 7(h)(l). After these submissions, the Court "may assume that facts identified by
the moving party in its statement of material facts are admitted, unless such a fact is controverted
in the statement of genuine issues filed in opposition to the motion." Id. However, when "judicial
review is based solely on the administrative record," as here, "Paragraph (1) shall not apply." Local
Civil Rule 7(h)(2). Instead, "[i]n such cases, motions for summary judgment and oppositions
thereto shall include a statement of facts with references to the administrative record." Id. Taken
together, the Court interprets this District's summary judgment rules in an administrative record
case to mean that so-called "factual assertions" that are unsupported by citations to accurate
evidence in the administrative record are insufficient to create issues of material fact. Similarly,
statements of facts with accurate citations that are uncontroverted by an opposing party's
opposition are considered material facts to which there is no genuine issue.
Here, both parties filed statements of facts. 2 See Pl. 's Statement of Facts ("PSOF"), ECF
No. 29-1, at 2-8; Def.'s Statement of Facts ("DSOF"), ECF No. 30, at 3-14; Pl.'s Statement of
Facts in Opp'n ("PSOF Opp'n"), ECF No. 32-1. However, Lemus's counsel's statement generally
2
Lemus's counsel did not file a statement of facts with her opposition.
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lacks citations to the administrative record ("AR"), ECF No. 28, save for a scarce few facts mostly
irrelevant to the motions before the Court. 3 Lemus counsel's reply, ECF No. 48, on the other hand,
includes some factual information relevant for the motions before the Court. But Local Civil Rule
7(h)(2) mandates that "motions for summary judgment and oppositions thereto shall include a
statement of facts with references to the administrative record." (emphasis added). The plain text
of the rule does not permit parties to identify undisputed issues of material fact for the first time in
a reply. 4 Therefore, the Court will only consider the statements of facts submitted by the parties
accompanying their motions for summary judgment, and DCI' s opposition, but will not consider
any new factual material contained in Lemus's reply. 5 Finally, the Court cites directly to the record
when necessary to address facts not raised by the parties, but that the Court concludes must be
considered to properly resolve the present case.
A. Orlin's Background and Original IEP (May 11, 2017)
Lemus is a resident of the District of Columbia and mother of Orlin. 6 AR at 863-64. Orlin
is a resident of the District of Columbia and qualifies as a "child with a disability" under the IDEA.
AR at 1658, 1670. Lemus and Orlin were both born in Honduras and are both native Spanish
1
Lemus attempted to correct these errors by filing a "Errata in Statement of Material Facts" five days after the
deadline for summary judgment motions. ECF No. 31. This "Errata" added a few, but not all, missing citations to
the administrative record as well as changed, added or deleted phrases and sentences. See id. Put simply, "[t]he
'Errata' filed by [Lemus] goes well beyond correcting clerical errors." Pl.'s Mem. in Opp'n to Def.'s Mot. for S.J.
("PL 's Opp'n~'), ECF No. 32, at 2. Because "errata sheets are typically-and, perhaps, appropriately-used only to
correct inconsequential errors," and Lemus's "Errata" reaches far past this line, this Court will exercise its
"substantial discretion" not to consider the filing. See Partridge v. Am. Hosp. Manag. Co., LLC, 289 F. Supp. 3d 1,
11 (D.D.C. 2017).
4
This is because judges "are not like pigs, hunting for truffles buried in [the administrative record]." See Potter v.
Dist. of Columbia, 558 F.3d 542, 553 (D.C. Cir. 2009) (Williams, J., concurring) (internal citation omitted).
5
Similarly, the Court will not consider any new arguments advanced by Lemus for the first time in the reply brief.
Am. Wild/ands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). These arguments include, among others: the
applicability of the IDEA's "mainstreaming" requirement, Title VI of the Civil Rights Act of 1964, Title IX of the
Education Amendments Act of 1972, the Rehabilitation Act of 1973, the Equal Education Opportunities Act of
1974, and the Americans with Disabilities Act of 1990. See, e.g., Def. 's Reply at 5-9.
6 The parties' filings and this Court's previous opinion referred to Orlin, who was a minor at time, by his initials
"O.C.L." See Dist. of Columbia Int'! Charter Sch. v. Lemus, No. 21-cv-0223 (RCL), 2022 WL 873549 (D.D.C. Mar.
24, 2022); Fed. R. Civ. P. 5.2. However, Orlin is now over eighteen years old. Aff. of Orlin Cruz Lemus, ECF No.
45-1, at 2. Thus, the Court will refer to him by his given name.
6
speakers. DSOF ,r 1; PSOF Opp'n ,r 1; AR at 851. Lemus has a limited understanding of English.
AR at 851. Lemus came to the United States in 2005, leaving Orlin and his two older sisters in
Honduras under the care of Odin's grandparents. AR at 890. While in Honduras, Orlin sustained
three serious head injuries between the ages of approximately five and seven years old. AR at 852.
In 2013, when Orlin was approximately nine years old, he and his sisters mi!iated to the
United States and joined their parents in the District of Columbia. Id. That same year he enrolled
in Tubman Elementary School ("Tubman"). DSOF ,r 1; PSOF Opp'n ,r 1.
In May 2017, when Orlin was in the fifth grade at Tubman Elementary School ("Tubman"),
he was given his first comprehensive psychological evaluation. AR at 1657-58. A psychologist
reviewed Odin's educational record, performed a variety of tests, conducted bilingual interviews
with Orlin and Lemus, and observed Orlin in class to prepare the evaluation. DSOF ,r 5; PSOF
Opp'n ,r 5; AR at 1658. The evaluation observed that Orlin possessed reading, mathematics, and
written language skills below that of his peers. AR at 851. Specifically, his reading and writing
skills were at an approximately second-grade level, and his mathematics skills were at an
approximately third-grade level. AR at 857-58. The evaluation concluded that Orlin was "eligible
for special education as a student with an Intellectual Disability." AR at 861.
Tubman issued Odin's first IBP on May 11, 2017. PSOF at 2; AR at 1084-97. The IBP
noted Odin's disability classification as "Intellectual Disability (also known as Mental
Retardation)." AR at 1084. The IBP further described Odin's then-present levels of academic
achievement in mathematics, reading, and written expression and established goals to improve his
abilities in these areas. AR at 1658. To achieve these goals, the IBP prescribed 19 hours per week
of special education services outside of Odin's general education. PSOF at 2. The IBP suggested
that "[Orlin] would benefit from [specialized] instruction both inside and outside the general
7
education classroom, in a small group setting, to address his deficits." Id. Nine of the 19 hours of
weekly specialized instruction were to be devoted to mathematics support outside of the general
education setting, for which "[Orlin] require[s] small group instruction." AR at 1094.
Odin's IEP was later amended seven tiIµes between December 2017 and August 2019.
PSOF Opp'n ,r 12.
B. 2017-18 School Year
i. Orlin 's First IEP Amendment (December 4, 2017)
In August 2017, Orlin enrolled at DCI in the sixth grade. PSOF at 2; DSOF ,r 11; PSOF
Opp'n ,r 11. Odin's IEP from Tubman was in effect when he enrolled at DCI. PSOF at 2. For the
special education hours outside of general education, DCI placed Orlin in a self-contained
classroom with other students with intellectual disabilities. Id. Sometime in September 2017, DCI
issued an IEP Amendment Proposed Services Change Form. AR at 457. The document was
prepared in English. AR at 1659. In the "Type of Proposed Amendment" section, both "Proposed
Increase in Service Hours" and "Proposed Decrease in Service Hours" were checked, though the
latter checkmark appears to have been scribbled out, indicating that the proposed amendment
purported to increase Odin's service hours. AR at 457, 1659, 1676. In the narrative section, the
form proposed amending Orlin's IEP to change the recommended special education services
outside of the classroom from 19 hours per week (or 76 hours per month) to 60 hours per month.
AR at 457, 1659. Thus, the actual proposed amendment was a decrease in service hours. AR at
1676. DCI provided Lemus with a translator to discuss the form. PSOF at 3. Lemus signed the
form. AR at 457, 1659.
In October 2017, DCI issued a Standard IEP Amendment Form that did not reflect
Proposed Services Change Form. AR at 459. The Amendment Form proposed to "add inside hours
8
of 37.5 hours per month (~9.5 hours per week) and increase outside hours from 19 hours per week
to 22.5 hours per month (~5.5 hours per week)." AR at 459, 1659. The form misstated that Odin's
outside service hours would be increased when such hours were actually decreased by 53.5 hours
per month as compared to Odin's original IEP. AR at 1676. The Amendment Form stated that
"[t]he transition from elementary services to middle school services is the primary reason for the
specific hours changes." AR at 459. Members ofDCI's special education staff testified at the due
process hearing that Orlin was "more advanced" than his peers in the self-contained special
education class and that DCI staff did not want to hold Orlin back from receiving a high school
diploma. AR at 1660. Lemus signed the Amendment Form and agreed to amend Odin's IEP
without an IEP Team meeting. AR at 459, 1660.
In November 2017, DCI issued an IEP Progress Report analyzing Odin's progress toward
the mathematics, reading, and written expression goals established in his May 2017 IEP. AR at
1660. DCI reported that Orlin had progressed in two mathematics goals and one written expression
goal, but that the rest of the goals had not been introduced. AR at 1660, 1176-79.
In December 2017, DCI formally issued Odin's first IEP amendment. PSOF at 3; AR at
1660. Odin's levels of academic achievement and goals remained unchanged. AR at 1660. The
IEP amendment officially prescribed 22.5 hours per month of specialized instruction outside
general education and 37.5 hours per month of specialized instruction inside general education
setting. PSOF at 3. At least some portion of the inside general education hours scheduled for Orlin
included support from a special education teacher inside the general education classroom. Id. Orlin
was also placed in mathematics and reading classes in part designed for English learners. Id.; AR
at 1660.
9
ii. Orlin 's Second IEP Amendment (March 5, 2018)
In February 2018, DCI issued an IEP Progress Report. Id. The report noted that, as of that
time, three of the goals from Odin's May 2017 IEP had still not been introduced (one in
mathematics and two in reading). AR at 1660, 1180-85. DCI then prepared a Standard IEP
Amendment Form that suggested increasing Odin's specialized instruction from 37.5 hours per
month inside general education and 22.5 hours per month outside general education (or 60 hours
per month total) to 69.5 hours per week. AR at 478, 1661 (emphasis added). In the "Type of
Proposed Amendment" section of the form, both "Proposed Increase in Service Hours" and
"Proposed Decrease in Service Hours" were checked, though the latter checkmark appears to have
been scribbled out. AR at 479, 1659. DCI discussed the proposed amendment with Lemus via a
Spanish-language translator but only provided a written copy of the proposed amendment in
English. PSOF at 4; AR at 1840-41. Lemus signed that form agreeing to the amendment without
an IEP meeting. AR at 1660.
DCI issued a new amended IEP for Orlin on March 5, 2018. PSOF at .4. The IEP
amendment prescribed 22.5 hours of specialized instruction per month outside general education
and 4 7 hours of specialized instruction per month inside general education. Id. These amounts,
totaling 69.5 hours per month, did not reflect the changes proposed to Lemus through the prior
written notice of the proposed amendment, which proposed 69.5 hours per week. AR at 1676. The
inside general education hours represented an increase of 9.5 hours over the amount prescribed in
the December 4, 2017 IEP amendment. AR at 1661. DCI intended for this extra time to be devoted
to math support. PSOF at 4. However, during the 2017-18 school year, DCI scheduled math
support outside general education during two periods per week during the second quarter, four
periods per week in the third quarter, and no periods during the fourth quarter. AR at 1660.
iii. Orlin 's Third IEP Amendment (May 3, 2018)
DCI measured Orlin's progress toward the IEP goals again in April 2018. AR at 1661.
Orlin was reported to be progressing in all three mathematics goals but had made no progress on
either written expression goal. AR at 1187, 1190-91. Two of his reading goals had yet to be
introduced. AR at 1188-89.
On May 3, 2018, DCI administrators, Orlin's IEP Team, Lemus, and Orlin met for
Orlin's first annual IEP meeting. PSOF at 4; AR at 500-27. A Spanish translator assisted Lemus
with communication during the meeting. AR at 1662--63. Lemus asked about the purpose of the
meeting and wondered if Orlin would have the same IEP. AR at 524, 1677. She also asked about
how Orlin was doing in his classes and expressed concern about his ability to pay attention. AR
at 524, 1677. DCI shared results of mathematics and reading testing conducted pursuant to the
Measure of Academic Progress ("MAP"), a standardized assessment administered by the
Northwest Evaluation Association. AR at 1662. The MAP assessment showed that Orlin's skills
in these areas had only developed to an approximately second-grade level, four grades behind his
then-current grade level. AR at 1662--63. In other words, Orlin's reading skills had not improved
and his mathematics skills had deteriorated one grade level since Tubman measured his progress
one year earlier. AR at 857-58. Odin's written expression scores demonstrated a limited ability
to produce written English. AR at 1663. At the conclusion of the meeting, DCI issued another
IEP amendment that prescribed the same amount of specialized instruction as the March 5, 2018
IEP amendment: 22.5 hours per month of specialized instruction outside general education and
47 hours per month inside general education. PSOF at 4; AR at 494, 1663.
11
In June 2018, DCI again measured Orlin's progress toward the IEP goals. AR at 1663.
The report noted that Orlin was progressing on all goals. AR at 1192-97. DCI determined that
Orlin had made sufficient academic progress to proceed to the seventh grade. PSOF at 5.
C. 2018-19 School Year
i. Orlin 's Fourth IEP Amendment (September 18, 2018)
In mid-September 2018, DCI proposed another amendment to Orlin's IEP. AR at 1664.
Specifically, DCI proposed decreasing inside general education hours from 47 hours per month
to 38.5 hours per month. AR at 1208. DCI believed this amendment to be appropriate based on
feedback from Orlin's teachers and additional classroom time devoted to English in the seventh-
grade curriculum. PSOF at 5; AR at 1664. On September 18, 2018, Lemus signed the proposal
form and agreed to the amendment without an IEP meeting. AR at 1208. DCI issued an IEP
amendment that same day reflecting the reduction in specialized instruction inside general
education to 38.5 hours per month. AR at 1219. The prescribed 22.5 hours of specialized
instruction per month outside general education setting remained unchanged. Id.U. Orlin 's Fifth IEP Amendment (November 19, 2018)
On November 5, 2018, DCI issued another Standard IEP Amendment Form proposing to
amend Orlin's IEP to add counseling services to address an observed "increase in negative
behaviors." PSOF at 5; AR at 1664. These counseling services constituted the "Introduction of a
New Service Type." AR at 1235. The form proposing the IEP amendment did not explicitly
propose how much time DCI suggested Orlin spend in counseling. AR at 1235, 1237, 1664.
Instead, DCI proposed changing Orlin's total special education services from 61 hours per month
(representing the combination of specialized instruction inside and outside general education in
Orlin's IEP) to 63 hours per month (apparently representing the total specialized instruction in
12
the IBP plus the proposed increase of two hours per month to be spent in counseling). AR at
1235, 1237, 1664. Lemus signed that form and agreed to the amendment without an IBP
meeting. AR at 1237, 1664. That same month, DCI issued an IBP Progress Report noting that
Orlin was progressing on all academic goals except for one reading goal that had not been
introduced. AR at 1330-34, 1664-65. On November 19, 2018, DCI issued an IBP amendment
leaving Odin's specialized instruction unchanged but adding 120 minutes, or two hours, per
month of behavior support services. AR at 1249.
iii. Orlin 's Sixth IEP Amendment (April 25, 2019)
In February 2019, DCI issued a quarterly progress report. AR at 1665. DCI reported that
Orlin was progressing on his mathematics and written expression goals as well as one of the
reading goals but that he refused to produce written work product in several classes. AR at 1335-
37, 1665. That spring, OrlinJook a standardized assessment of English and mathematics
readiness for college and career. AR at 870, 1666. Orlin received a performance level score of
1-a rating of "did not yet meet expectations for 7th grade learning standards"-the lowest score
available for both sections. AR at 870, 872. The report noted that Orlin scored better than only
one percent of students at DCI in both sections. AR at 871, 873. The report further compared
Odin's scores that year with his scores from the previous year and illustrated how those scores
fell from 2018 to 2019. AR at 871, 873. Specifically, Orlin scored better than only one percent of
students in the District of Columbia who took the English-language portion of seventh-grade test,
though the previous year he had scored better than eight percent of students taking the sixth-
grade test in the District of Columbia. AR at 871. Furthermore, Orlin scored better than only
eight percent of students in the District of Columbia who took the mathematics portion of
13
seventh-grade test, though the previous year he had scored better than sixteen percent of students
taking the sixth-grade test in the District of Columbia. AR at 873.
On April 25, 2019, DCI administrators, Odin's IEP Team, Lemus, and Orlin met for
Odin's annual IEP meeting. PSOF at 6. A Spanish-language translator attended the meeting and
translated for Lemus. AR at 1668. The team discussed that Odin's English language proficiency
was "emerging," a classification for someone who "uses some social English and general
academic language with visual and graphic support." AR at 1667. In discussing Odin's
mathematics progress, the IEP Team described that Odin's mathematics skills remained at an
approximately second-grade level and that his mathematics standardized test scores fell between
the fall of2018 and winter of 2019. PSOF at 6; AR at 607, 1667. Odin's reading test scores
demonstrated a reading ability at the first-grade level. AR at 610, 1667--68. In other words,
Odin's mathematics scores had not improved at DCI and his reading had deteriorated one-grade
level as compared to his 2017 assessment at Tubman. AR at 3 51. Orlin received grades of mostly
zero in written expression. AR at 613, 1668. Finally, the IEP Team noted that Odin's
engagement with his behavior support services was "inconsistent." AR at 615, 1668.
That same day, DCI issued an IEP amendment largely prescribing the same type and
quantity of support services as his previous IEP amendment. AR at 1668. Specifically, the
specialized instruction inside general education (38.5 hours per month) and behavioral support
services (two hours per month) remained unchanged but Odin's specialized instruction outside
general education was increased by a mere 30 minutes per month, from 22.5 hours per month to
23 hours per month. AR at 617, 1668.
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D. 2019-20 School Year
i. Orlin 's Seventh IEP Amendment (August 26, 2019)
In June 2019, DCI again reported on Odin's progress. AR at 1668. Orlin was reported to
be progressing on all goals except for one reading goal. Id. DCI determined that Orlin had made
sufficient academic progress to proceed to the eighth grade. Id. That same month, a psychologist
conducted a bilingual neuropsychological evaluation. AR at 1669. The psychologist noted that
DCI made the referral "due to a request for more data given recent misbehaviors and concern that
[Odin's] initial psychological evaluation did not fully investigate prior head trauma." AR at 889.
Various tests administered by the psychologist demonstrated that Orlin possessed "low" or "very
low" cognitive functioning in both English and Spanish. AR at 889-905, 1669. The psychologist
concluded that the "[r]esults from this evaluation report support continued eligibility as a student
with an Intellectual Disability." AR at 896. The evaluation did not make any specific findings
regarding Odin's head trauma beyond noting that the previous psychologist "was unable to
confirm if [those injuries] resulted in concussions or loss of consciousness." AR at 890. In July
2019, DCI issued a new Final Eligibility Determination reclassifying Odin's disability as
"Traumatic Brain Injury" or "TBI." AR at 1384, 1670.
In August 2019, following the disability reclassification, DCI again amended Odin's IEP
and prescribed the same specialized instruction inside general education (38.5 hours per month),
specialized instruction outside general education (23 hours per month), and behavioral support
services (two hours). AR at 1422, 1672. The IEP added a new service of occupational therapy for
three hours per month, based on Odin's disability reclassification as TBI, as well as two new
behavioral goals. AR at 1420-22, 1672.
15
In the fall of 2019, Orlin scored in the fourth percentile on the MAP report. AR at 879,
1672. This score represented a slight increase from his spring 2018 score in the third percentile.
AR at 879, 1672. In reading, Orlin scored in the ninth percentile in the fall of 2019, a significant
decrease from his spring 2018 score in the seventeenth percentile. AR at 879, 1672. DCI attributes
declines in Orlin's MAP scores to "attendance and behavior concerns." PSOF at 6.
Orlin was expelled from DCI in early February 2020 following a disciplinary incident. AR
at 1653.
E. Procedural History
i. The Due Process Hearing
On July 30, 2020, Lemus, represented by counsel, filed a due process complaint with the
Office of the State Superintendent of Education ("OSSE") for the District of Columbia. PSOF at
7. Lemus sought not only a reversal and expungement of the expulsion, but also compensatory
education for Odin's entire tenure at DCI, alleging that DCI failed to provide Odin's required
FAPE. AR at 1653. The Hearing Officer presiding over the action separated Lemus' s claims about
the expulsion from her claim alleging failure to provide FAPE. 7 Id. The following issues were
certified for the FAPE portion of the due process hearing:
1) Whether [DCI] failed to provide [Orlin] an appropriate Individualized
Education Program for the 2017-18 school year;
2) Whether [DCI] failed to implement [Odin's] 2017-18 IEP;
3) Whether [DCI] failed to provide an appropriate IEP on May 3, 2018 for the
2018-19 school year[;] and
7
The Hearing Officer considered the expulsion portion of the hearing first because a complaint involving expulsion
is entitled to expedited treatment. AR at 1653. The Hearing Officer determined that D C! had not improperly
expelled Orlin, and Lemus appealed that decision to this Court. See Lemus on behalfof0 .C.L. v. Dist. of Columbia
Int 'l Charter Sch., No. 20-cv-3839 (RCL). This Court's review of the Hearing Officer's expulsion determination is
the subject of a separate Memorandum Opinion.
16
4) Whether [DCI] failed to provide an appropriate IEP on April 25, 2019 for the
2019-20 school year.
PSOF at 7; AR at 1657.
OSSE held hearings on these questions on October 14 and 15, 2020. PSOF at 7. Lemus
called two witnesses, Dr. Jay Lucker and herself. AR at 1657. Lemus offered Dr. Lucker as an
expert in communications and DCI objected. Id. The Hearing Officer overruled DCI's objection
and qualified Dr. Lucker as an expert in communications but limited his testimony to deficiencies
in English proficiency. Id. DCI offered as witnesses DCl's special education coordinator,
Kimberly Colley, as well as four DCI special educator teachers: Celia Taylor, Fatoumata Magassa,
Michael Thomas, and Justin LaRoque. Id. All five ofDCI's witnesses were qualified as experts in
special education without objection. PSOF at 7.
The Hearing Officer issued a decision on October 26, 2020 finding in favor of DCI in part
and in favor of Lemus in part. Id. The Hearing Officer determined that DCI bore the burden of
persuasion on the first, third, and fourth certified issues because those issues concerned DCl's
alleged failure to develop an appropriate IEP and Lemus, the petitioner, had established a prima
facie case that those IEP amendments were inappropriate. AR at 1674. The Hearing Officer
determined that Lemus bore the burden of persuasion on the second certified issue, whether DCI
failed to implement Odin's 2017-18 IEP. Id. The Hearing Officer found in favor ofDCI on the
second certified issue but found in favor of Lemus on the remaining issues. PSOF at 7. The Hearing
Officer further determined that Lemus had not offered any evidence of the type or amount of
compensatory education services to which Orlin was entitled and therefore concluded that a
specific award of compensatory services would be arbitrary. AR at 1680-81.
17
The Hearing Officer then ordered the following relief:
(1) [DCI] shall fund a total of 100 hours of independent tutoring services for [Orlin]
in Reading, Mathematics, and Written Expression, with no restrictions as to the
time of day or deadlines for the completion of such services[;]
(2) [DCI] shall fund an independent evaluation to determine (1) how much
academic growth could be reasonably be expected of [Orlin] with an
appropriate IEP (i.e., 19 hours/week of specialized instruction outside general
education) since December 4, 2017, and (2) what kind and amount of services
would put [Orlin] in the academic position [he] would have been in had [DCI]
provided [him] 19 hours/week of specialized instruction outside general
education from December 5, 2017 until February 6, 2020[; and]
(3) Within thirty (30) days of receipt of the independent evaluation, [DCI] shall
convene an Multidisciplinary Team meeting to review the evaluation and to
determine an appropriate amount of compensatory education services for the
lack of an appropriate amount of specialized instruction outside of general
education for [Orlin] for the period December 5, 2017 to February 6, 2020.
AR at 1682.
ii. The Instant Action
On January 25, 2021, the last day of the limitations period, DCI filed this action seeking
declaratory and injunctive relief under the IDEA. Compl, ECF No. 1. Specifically, DCI asks that
this Court reverse the Hearing Officer's decision and enter judgment for DCI. Id. at 16. DCI alleges
that the Hearing Officer erred in nearly two dozen ways during the due process hearing. See id.,r,r 64-85. In response, Lemus moved to dismiss under Federal Rule of Civil Procedure 12(b)(l)
and (2) for DCI's failure to timely serve her. Def. 's Mot. to Dismiss, ECF No. 9. The Court denied
Lemus's motion, finding good cause for DCI's failure to effect service of process on Lemus within
the applicable period. Lemus on behalfofO.C.L. v. Dist. ofColumbia Int'! Charter Sch., Case Nos.
20-cv-3839 (RCL), 21-cv-0223 (RCL), 2022 WL 407151 (D.D.C. Feb. 10, 2022). Around that
same time, DCI moved to stay the Hearing Officer's relief order pending its appeal to this Court.
Stay Mot., ECF No. 13. Lemus opposed, ECF No. 22, and DCI replied, ECF No. 23. The Court
18
denied DCI's motion, finding that a stay was not warranted. Dist. of Columbia Int'! Charter Sch.
v. Lemus, Case No. 21-cv-0223 (RCL), 2022 WL 873549 (D.D.C. Mar. 24, 2022).
The parties then both moved for summary judgment. Pl. 's Cross Mot. for S.J., ECF No.
29; Pl.'s Mem. in Supp. of Pl.'s Cross Mot. for S.J. ("Pl.'s MSJ"), ECF No. 29-1; Def.'s Mot. for
S.J. ("Defs MSJ"), ECF No. 30. Each filed an opposition to the other's motions. 8 Pl.'s Mem. in
Opp'n to Def.'s MSJ ("Pl.'s Opp'n"), ECF No. 32; Def.'s Mem. in Opp'n to Pl.'s MSJ ("Def.'s
Opp'n"), ECF No. 33. DCI filed a reply in support of its own motion. Pl.'s Reply, ECF No. 34.
Lemus filed a reply after twice moving to extend the deadline. Def.'s Reply, ECF No. 48. Both
motions are ripe for review.
III. LEGAL STANDARDS
A. Summary Judgment
In ordinary civil actions, summary judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under
the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary
judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Id. A court evaluating a
summary judgment motion must "view the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in its favor." Arthridge v. Aetna Cas. & Sur. Co., 604
F.3d 625, 629 (D.C. Cir. 2010).
8 While Lemus's counsel captioned her submission as a memorandum in opposition to her own summary judgment
motion, the content of the filing indicates that it is an opposition to DCI's summary judgment motion.
19
B. Judicial Review Under the IDEA
Under the IDEA, "[a]ny party aggrieved by the findings and decision" rendered during
administrative proceedings before the local educational agency may "bring a civil action" in state
or federal court without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2)(A). The
reviewing court "(i) shall receive the records of the administrative proceedings; (ii) shall hear
additional evidence at the request of a party; and (iii) basing its decision on the preponderance of
the evidence, shall grant such relief as the court determines is appropriate." Id. at
§ 1415(i)(2)(C)(i)-{iii). The IDEA requires reviewing courts to afford "less deference than is
conventional in administrative proceedings," Reid, 401 F.3d at 521 (internal quotation marks and
citation omitted), but "[t]actual findings from the administrative proceedings are to be considered
prima facie correct." Roark ex rel. Roark v. Dist. of Columbia, 460 F. Supp. 2d 32, 38 (D.D.C.
2006) (internal citation omitted). Overall, courts are not to "substitute their own notions of sound
educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206.
The party challenging the Hearing Officer's determination "take[s] on the burden of
I
persuading the court that the hearing officer was wrong." Reid, 401 F.3d at 521 (internal citation
and quotation marks omitted). That party must demonstrate by a preponderance of evidence that
the Hearing Officer erred. See Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988).
IV. DISCUSSION
The various errors that DCI claims the Hearing Officer committed may be summarized as
the following four: (1) finding that Lemus's claims related to IEPs developed prior to July 30,
2018 were not time-barred; (2) determining the DCI had the burden of persuasion at the due
process hearing; (3) finding that the December 4, 2017, May 3, 2018, and April 25, 2019 IEP
amendments were not appropriate; and (4) awarding an arbitrary amount of tutoring hours and
20
impermissibly delegating to the IEP Team the responsibility to determine the rest of the
compensatory education services award. Pl.'s MSJ at 10-33. Lemus argues that the Hearing
Officer did not err in these ways. See generally Def.'s MSJ; Def.'s Opp'n.
DCI brings this action and thus bears the burden to convince this Court that the Hearing
Officer erred. Reid, 401 F.3d at 521. After review, the Court concludes that DCI has not
demonstrated that the Hearing Officer erred in any the ways DCI suggests except for the relief
order. Thus, because DCI has not met its burden, Lemus is entitled to summary judgment on
most points.
That said, the Court would be remiss if it did not remark on the unprofessional quality of
Lemus counsel's representation here, the likes of which this Court has rarely seen. Counsel's
briefs fail to include citations to the administrative record; spill ink on arguments that have no
basis in law or the procedural posture of this case; fail to respond to DCI's arguments; omit,
mischaracterize, or misapply law; and repeat information unrelated to the case. 9 Furthermore,
counsel twice improperly and inadequately attempted to correct some of these missteps through
late-filed documents without notifying DCI or seeking leave of this Court. 10 Because "formal
pleadings drafted by lawyers" are held to "stringent standards," Estelle v. Gamble, 429 U.S. 97,
106 (1976), briefing so lacking in quality, such as these, would ordinarily result in a court
9
Some of the arguments that Lemus's counsel raises here concern m~tters that were not raised in the administrative
due process complaint, and thus they were not before the Hearing Officer. See, e.g., Def. 's MSJ at 25-27 (claiming
that DCI violated standardized testing requirements and the Lemuses' statutory rights as non-English speakers);
Def.' s Opp' n at 9-10 (claiming the DCI failed to provide procedural safeguards). Because these matters were not
properly raised during the due process hearing, the Hearing Officer did not consider them. Adams v. Dist. of
Columbia, 285 F. Supp. 3d 381, 394 (D.D.C. 2018). Nor will this Court.
10
It is difficult for the Court to express the gravity of the filings' shortcomings but will attempt to do so with a few
examples of the rudimentary mistakes and typographical errors contained therein. This includes basic factual
mistakes, "The IEP determined that 10 of those hours of. .. and 9 hours of. .. AR at_[,]" Def.'s MSJ at 6, and "DCI
filed it's. Amended Third Answer on .... AR at ... [,]" id. at 9; failing to correct her word processor's autocorrecting
of(c) and (e) into© and€, "20 U.S.C. 1414 (d))(2)©(i)[,]" id. at 27; "citing Section 1400 €, 1401[,]" Def.'s Opp'n
at 9; and blatant typographical errors, "Lemus, throuhot this period, worked onlg hours as a ..... to support her
family ... [,]" Def.'s Reply at 16 n.l.
21
finding in favor of the opposing party. Lemus is fortunate that she prevails in large part. The
Court reaches this outcome solely because DCI has fallen short of its burden and this Court will
in its discretion not penalize Lemus based on any performance by her counsel.
A. The Court Will Grant DCl's Motion to Strike Lemus's "Status Report"
The parties ask this Court to base its _decision on the evidence in the record, though
Lemus asks that that record include a so-called "Status Report" filed one month after Lemus's
reply to DCI's opposition to her motion for summary judgment. ECF No. 49. The "report"
contained an evaluation by Dr. Lucker, one _ofLemus's witnesses at the due process hearing,
purportedly conducted on June 29, 2022. Id. Attached as exhibits were various other evaluation
reports, some of which were duplicates of reports already present in the record. Ex. A-E to
Status Report, ECF No. 49-1--49-5. DCI moves to strike the report, claiming that "[Lemus]
effectively filed a supplement to her reply well after the deadline and without leave of this
Court." Pl.'s Mot. to Strike, ECF No. 50, at 1. Lemus opposes and, after spending several pages
on irrelevant procedural history, argues that the document is the independent evaluation report
ordered by the Hearing Officer. Def.'s Opp'n to Mot. to Strike, ECF No. 51, at 3. DCI, curiously
not confirming or denying whether this was the report it funded as required by the Hearing
Officer, instead calls the report "extremely prejudicial" and attacks the report's substance and
timing. Pl.'s Reply to Def.'s Opp'n to Mot. to Strike, ECF No. 52, at 1-3 (arguing that the report
does not meet the requirements of the Hearing Officer's order, that it addresses topics outside the
scope of the due process hearing and the Hearing Officer's order, and that Lemus has not offered
any explanation for why she did not submit it prior to close of dispositive motions even though it
was available, among other arguments).
22
A court may strike "any redundant, immaterial, impertinent or scandalous matter." Fed.
R. Civ. P. 12(f). Although "the rule does not by its terms require the striking of matters that are
prejudicial," "many courts will grant such motions only if the portions sought to be stricken are
prejudicial or scandalous." Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 190 (D.D.C. 2005)
(collecting cases). "The Court, possessing considerable discretion in disposing of motions to
strike, is mindful that motions to strike are not favored." Cobell v. Norton, 224 F.R.D. 1, 2
(D.D.C. 2004). Nevertheless, the Court finds that Lemus's so-called "status report," filed late
without leave of court and replete with duplicative, irrelevant, or prejudicial material, more than
meets the demanding showing required in this District's Rule 12(f) caselaw. Thus, the Court will
grant DCI's motion to strike and will not consider the document's contents, or the exhibits
attached thereto, in its consideration of the parties' summary judgment motions.
B. The Hearing Officer Correctly Determined That Lemus's Challenges to IEPs Issued
Prior to July 30, 2018 Were Not Time-Barred
DCI argues that the Hearing Officer erred by concluding that Lemus's challenges to the
appropriateness of Orlin' s IEPs amendment issued prior to July 30, 2018-specifically his first
and second IEP amendments-were time-barred. Pl. 's MSJ at 10-12. Lemus denies that the
Hearing Officer erred in this way. Def.'s MSJ at 1-2; Def.'s Reply at 12-13.
Under the IDEA, a parent must "request an impartial due process hearing within 2 years
of the date the parent [] knew or should have known about the alleged action that forms the basis
of the complaint[.]" 11 20 U.S.C. § 1415(f)(3)(C); 34 C.F.R. § 300.51 l(e). The Hearing Officer
correctly identified that the statute oflimitations issue here "turns on whether [Lemus] knew or
should have known about key elements of the IEPs developed prior to July 30, 2018." AR at
11The statute and corresponding regulation contain two exceptions to the limitations period that are not implicated
here. 20 U.S.C. § 1415(t)(3)(D); 34 C.F.R. § 300.51 l(t); AR at 1675.
23
1675. And the Hearing Officer-correctly identified that, under IDEA regulations, the school must
provide written notice to the child's parents before amending the child's IEP. 34 C.F.R.
§ 300.503(a). Such notice must be provided in the parent's native language. Id. § 300.503(c). 12
The Hearing Officer then found that DCI did not provide Spanish-language versions of the
relevant documents and thus violated the applicable regulation. AR at 1675. The Hearing Officer
went on to thoroughly describe how the various documents presented to Lemus were "confusing
even to someone who is perfectly literate in English." AR at 1675; 1675-77 (describing how
markings indicated that Odin's support hours would be increased but his hours were decreased
or vice versa and how the forms confused hours per week and hours per month, among other
errors). Examining this evidence, the Hearing Officer concluded that although the forms' marks
"may have been the result of[] innocent error[ s]" by the DCI staff member preparing the
documents, AR at 1676, "[t]he documentation and testimony offered at the hearing" confirmed
that "[Lemus] did not know, and cannot be held responsible for knowing, the significance of the
changes [DCI] made to [Odin's] IEP during the 2017-18 school year." AR at 1677.
DCI does not attempt to excuse its failure to provide the documentation in Spanish. Nor
does DCI contradict the Hearing Officer's characterization of the forms' impenetrability. Rather,
DCI argues that Lemus was on notice of Orlin's IEP amendments, the actions giving rise to her
complaint, prior to the limitations period because a) Lemus was provided with a translator at
certain meetings where the IEP amendments were discussed, b) Lemus consented to the
amendments to Odin's IEP without asking additional questions or seeking clarification, and c)
12 Lemus cites the applicable authority as "the D.C. Language Access Act, DC code 2-1931 et seq, and the D.C.
Human Rights Act, DC Code 2-1401.01, 5 -E DCMR 2600 et seq and 5-E DCMR 3102." Def.'s MSJ at 18.
However, as DCI aptly points out, neither statute nor their associated regulations are applicable here. Pl. 's Opp'n at
3 (noting that District of Columbia regulations related to educational language minority students do not apply to
students in a charter school like DCI and further noting that DCI is not a "covered entity" under the D.C. Language
Access Act).
24
overall, Lemus failed to exercise reasonable diligence in trying to obtain more information about
DCI's actions to amend Orlin's IEP. Pl.'s MSJ at 10-12.
All ofDCI's arguments miss the mark. DCI did not provide Lemus with Spanish
language versions of the applicable documents as required by the IDEA regulations. Moreover,
not only were the forms DCI provided objectively confusing, Lemus demonstrated at the due
process hearing that DCI's conduct was subjectively confusing as well. According to the meeting
notes for the May 3, 2018 IEP Annual Review Meeting, Lemus asked what the purpose of the
meeting was and whether DCI would be making changes to Orlin' s IEP, among other questions.
AR at 1677. The Hearing Officer credited Lemus's testimony at the due process hearing that DCI
did not answer either of those questions. Id. This response falls short of DCI' s requirement to
"take whatever action is necessary to ensure that the parent understands the proceedings of the
IEP Team meeting." 34 C.F.R. § 300.322(e).
Furthermore, DCI cannot credibly assert that Lemus knowingly and willingly agreed to
the amendments to Orlin's IEP or failed to exercise reasonable diligence. 13 DCI told her in
writing, in a language that she did not understand, that the school would be amending Orlin's
IEP in certain ways, yet the actual IEP amendments often did not reflect the proposed changes.
Even if Lemus understood the proposed changes, a proposition for which the record illustrates
considerable doubt, it cannot be said that she agreed with an IEP amendment that differed from
DCI's proposal. For this reason, courts recognize that a failure to provide written notice can
constitute a denial of PAPE when, such as here, the action impedes a parent's opportunity to
13
Relatedly, Lemus is incorrect that "DCI asserts, without legal foundation whatsoever, that [Lemus] consented to
all of the changes that were made to the IEPs in question." Def.'s Opp'n at 13 (internal quotations omitted). Lemus
clearly signed various IEP documents indicating her consent and verbally agreed with DCI in meetings. However, it
was the Hearing Officer's position that these acts indicating consent cannot be considered as true consent due to
DCI' s failure to inform Lemus. The Court agrees.
25
participate in the process of developing the F APE. See Lesesne ex rel. B.F. v. Dist. of Columbia,
447 F.3d 828, 834 (D.C. Cir. 2006); Brown v. Dist. of Columbia, 179 F. Supp. 3d 15, 24-25
(D.D.C. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(ii)(II).
Overall, the Hearing Officer conducted his own review of the documents provided to
Lemus regarding the proposed changes to Odin's IEP and observed Lemus's testimony. Based
on this evidence, the Hearing Officer correctly concluded that Lemus did not know nor should
she have known the alleged action forming the basis of her complaint prior to July 30, 2018.
Therefore, the Hearing Officer did not err in finding that Lemus's claims were not time-barred,
and Lemus is entitled to summary judgment on this point.
C. The Hearing Officer Correctly Determined That DCI Had the Burden of Persuasion
to Demonstrate that the December 4, 2017, May 3, 2018, and April 25, 2019 IEP
Amendments Were Appropriate
DCI next argues that the Hearing Officer erred in shifting the burden of persuasion from
Lemus on all three points. Pl.'s MSJ at 12-21; Pl.'s Opp'n at 2-3; Pl.'s Reply at 3. Lemus argues
that the Hearing Officer correctly determined that DCI had the burden of persuasion. Def.'s MSJ
at 16; Def.'s Opp'n at 6; Def.'s Reply at 1-2.
Ordinarily, "the party who filed for the due process hearing shall bear the burden of
production and the burden of persuasion" at that hearing. D.C. Code Ann.§ 38-2571.03(6)(A).
When the dispute involves "the appropriateness of the child's individual educational program or
placement," and the parent "establish[es] a prima facie case" that such IEP or placement is
inappropriate, then "the public agency shall hold the burden of persuasion." Id. "In determining
the sufficiency of a prima facie case," the hearing officer "must determine whether, after
considering all of a [parent's] evidence, a reasonable trier of fact could find in favor of the
[parent]." W.S. v. District of Columbia, 502 F. Supp. 3d 102, 121 (D.D.C. 2020). As this Court
has previously explained, "[p ]resenting a prima facie case is not a heavy burden-all that is
26
required is that plaintiff provided 'enough evidence' to justify sending a case to a jury." Dist. of
Columbia Int'! Charter Sch., 2022 WL 873549, at *4 (citing WS., 502 F. Supp. 3d at 120).
Here, the Hearing Officer determined that Lemus had made a prima facie case that the
December 4, 2017 IEP amendment was inappropriate. AR at 1678. This finding appears to be
based partly on DCI' s failure to inform Lemus of the changes, as discussed above, and partly on
a comparison of Odin's original IEP with the December 4, 2017 IEP amendment. Specifically,
the December 4, 2017 IEP amendment reduced Odin's specialized instruction outside general
education by 53.5 hours per month--or 70%-despite recognizing that his performance levels in
mathematics, reading, and written expression had not improved. Id. Based on this evidence, the
Hearing Officer concluded that Lemus had established a prima facie case of a FAPE denial.
Furthermore, the Hearing Officer sensibly concluded that because the May 3, 2018, and April 25,
2019 IBP amendments "reflect[ ed] the reduced level of specialized instruction services
prescribed by [DCI]" in the December 4, 2017 IEP amendment, Lemus had established a prima
face case for challenging those IBP amendments as well. AR at 1679.
DCI repeatedly insists that Lemus did not establish a prima facie case because her own
testimony did not directly express disagreement with or question the IEP amendments and
because her only other witness, Dr. Lucker, should not have been permitted to provide expert
testimony. Pl.'s MSJ at 12-21; Pl.'s Opp'n at 2-3; Pl.'s Reply at 3. This argument is mistaken
for at least three reasons. First, as previously discussed, DCI's demonstrated failure to inform
Lemus of the scope and nature of the proposed changes to Odin's IEP amendments undercuts
any insistence that her statements or lack thereof are somehow probative. Second, as Lemus
correctly notes, nothing in the text of the Hearing Officer's decision indicates that he credited Dr.
27
Lucker's testimony at ~11, let alone on the burden ofpersuasion. 14 Def.'s Opp'n at 12-13. In fact,
the Hearing Officer expressly noted that while "[Dr. Lucker] opined that [DCI] should not have
reduced student's intensive specialized instruction without conducting evaluations," "there is no
justification for the independent evaluations requested by [Lemus]." AR at 1680. Third, DCI
fails to cite any proposition in law or statute mandating that a prima facie case be established
only through testimonial evidence. To the contrary, a hearing officer is explicitly required to
review all of the petitioner's evidence in the record, not just the testimony. See WS., 502 F.
Supp. 3d at 121. Thus, the Hearing Officer here correctly considered the objective assessments,
meeting notes, and other documentation submitted by Lemus to conclude that she had
established a prima facie case.
Next, DCI argues that the Hearing Officer did not sufficiently credit the testimony of
Colley and Taylor, members ofDCI's special education staff, who testified that Orlin was "more
advanced" than his peers in the outside special education classes and that he would be better
served by participating in mathematics and reading support classes inside general education and
reducing his outside general education time. AR at 1677-78. However, the Hearing Officer
evidently determined that this testimony was less credible than other data demonstrating that
Odin's performance levels had not improved, suggesting that a reduction in outside general
education hours was not appropriate. Because "a District Court must accept the [hearing
officer's] credibility determinations unless the non-testimonial, extrinsic evidence in the record
would justify a contrary conclusion," and the Court sees no basis in the record to contradict the
Hearing Officer's determination, the Court concludes that did the Hearing Officer did not err in
14
It is for this reason that the Court need not address DCI's arguments that the Hearing Officer erred by allowing
Dr. Lucker to testify as an expert.
28
assigning the burden of persuasion to DCI. See J.N v. Dist. of Columbia, 677 F. Supp. 2d 314,
322 (D.D.C. 2010) (emphasis removed).
The Court agrees with the Hearing Officer that the record unequivocally establishes a
prima facie case of FAPE denial and thus the burden of persuasion shifted to DCI to demonstrate
that the December 4, 2017 IEP was appropriate. Furthermore, the Court agrees with the Hearing
Officer's conclusion that, based on his observations and expertise, the May 3, 2018 and April 25,
2019 IEP amendments were linked to, and suffered from similar deficiencies as, the December 4,
2017 IEP amendment. Additionally, objective evidence in the record showing a plateau or
decline in Orlin's test scores is further evidence in support of a prima facie case. Finally, the
Court should "defer to the [hearing officer's] factual findings unless it can point to contrary
nontestimonial extrinsic evidence on the record." See S.S. by and through Street v. Dist. of
Columbia, 68 F. Supp. 3d 1, 9-10 (D.D.C. 2014) (internal citations omitted). Finding no
p_ersuasive, contrary evidence, the Court gives deference to the Hearing Officer's determination
that the burden of persuasion shifted from Lemus to DCI. Therefore, the Hearing Officer did not
err in finding that DCI had the burden of persuasion to demonstrate that the IEP amendments
were not appropriate, and Lemus is entitled to summary judgment on this point.
D. The Hearing Officer Correctly Determined That the December 4, 2017, May 3,
2018, and April 25, 2019 IEP Amendments Were Not Appropriate
DCI next argues that the Hearing Officer erred in determining that DCI had not met its
burden to establish that Odin's second, third, and sixth IEP amendments were appropriate
because he substituted his own education policy opinions for those of DCI' s experts. See Pl.' s
MSJ at 16-20; 23-26; 28-31. Lemus argues that DCI does not meet its burden to demonstrate
that any of these findings were incorrect. Def.'s Opp'n at 4-5; Def.'s Reply at 15-16. The Court
will address the Hearing Officer's findings regarding each IEP amendment in tum.
29
i. December 4, 2017 IEP Amendment
The crux ofDCI's objection to the Hearing Officer's conclusion that the December 4,
2017 IEP amendment was not appropriate appears to be the Hearing Officer's observation that
"[DCI] apparently rejected the option of developing individualized lesson plans for [Orlin] in the
small class setting to meet [Odin's] unique needs" as an impermissible substitution of his own
view of the correct educational policy rather than giving deference to DCI. Pl.' s MSJ at 19; AR
at 1678. DCI misconstrues the Hearing Officer's conclusion. He did not conclude that the
December 4, 2017 IEP amendment was inappropriate because DCI failed to develop
individualized lesson plans. Rather, he concluded that DCI failed to meet its burden to
demonstrate why significantly reducing Odin's specialized instruction outside general education
from 19 hours per week (as stated in his May 11, 2017 IEP) to 22.5 hours per month (as stated in
the December 4, 2017 IEP amendment) was appropriate. The Hearing Officer's conclusion was
amply supported by several pieces of evidence in the record, including Odin's testing data and
recognition that Odin's levels of achievement in mathematics, reading, and written expression
had not changed.
DCI responds by saying that the Hearing Officer erred by basing his decision only on
objective data rather than the expert opinions of individuals who worked with Orlin. Pl.' s MSJ at
21-23. The regulatory provision that DCI cites for this proposition, 34 C.F.R. § 300.113, is
inapplicable here because that provision requires that schools routinely check children's hearing
aids, and Orlin does not possess a hearing impairment. Regardless, DCI' s argument elides the
point. The Hearing Officer clearly considered both objective and subjective data. He determined
that "[DCI] has identified none of the assessments it suggests supported the reduction in
specialized instruction outside general education," that the evidence DCI did present "indicate[d]
that no such assessments were conducted, or the results were not considered in making the
30
determination to reduce drastically [Odin's] service hours outside general education," and that
"[DCI's] justification for removing [Orlin] from most of [his] self-contained classes," namely
that he could receive small-group support inside general education, was "unpersuasive." AR at
1678. Tiris Court recognizes the Hearing Officer's expertise in assessing a school's explanation
for an IEP amendment and will afford such a reasoned determination deference. See D.K. v. Dist.
of Columbia, 983 F. Supp. 2d 138, 144 (D.D.C. 2013); Reid, 401 F.3d at 521.
DCI's arguments about the other ways that the Hearing Officer erred are similarly
unavailing. DCI insists that Lemus did not offer any evidence or testimony to demonstrate that
the December 4, 2017 IEP amendment was inappropriate. Pl.'s MSJ at 16. But it was DCI, the
party with the burden of persuasion, not Lemus, who needed to demonstrate that the December 4,
2017 was appropriate. DCI further rehashes its claims that the Hearing Officer did not give due
weight to testimony by DCI witnesses Colley or Taylor, who worked with Orlin, and gave too
much weight to testimony by Lemus's witness, Dr. Lucker. Id. at 17-18. As previously stated,
nothing in the relevant portion of the Hearing Officer's decision indicated that he considered Dr.
Lucker's testimony in determining the appropriateness of the December 4, 2017 IEP amendment.
In contrast, the Hearing Officer plainly considered Colley and Taylor's testimony and weighed
this testimony against other evidence in the record. Though their testimony is due some
deference, it is well-established that "the required deference to the opinions of the professional
educators [does not] somehow relieve the hearing officer or the district court of the obligation to
determine as a factual matter wheth'er a given IEP is appropriate." Cnty. Sch. Bd. ofHenrico
Cnty., Virginia v. Z.P. ex rel. R.P., 399 F.3d 298,307 (4th Cir. 2005). Similarly, "the fact-finder
is not required to conclude that an IEP is appropriate simply because a teacher or other
professional testifies that the IEP is appropriate." Id.31
Finally, DCI contends that the Hearing Officer's conclusion that DCI "reduc[ed Orlin's]
intensive services by over 70%" is not accurate because Orlin continued to receive specialized
I
instruction inside general education. Pl.'s MSJ at 19; AR at 1678. This, like DCI's other
arguments, confuses the issues. Orlin's original IBP amendment called for 19 hours per week of
specialized instruction outside general education, or 76 hours per month. The December 4, 2017
IEP amendment prescribed 37. 5 hours of specialized instruction per month inside general
education and 22.5 hours of specialized instruction per month outside general education. The
Hearing Officer's statement, though a bit imprecise, was accurate in describing a 70% reduction
in outside general education services.
Therefore, the Hearing Officer did not err in determining that DCI failed to demonstrate
that Orlin's December 4, 2017 IEP amendment was appropriate, and Lemus is entitled to
summary judgment on this point.
ii. May 3, 2018 IEP Amendment
The Hearing Officer concluded that Orlin's third amended IBP was not appropriate for
the 2018-19 school year because "[ a]fter implementing the changes in December 201 7, data
reveals that [Orlin] had made no objective improvement in Math or Reading, and had made
limited progress on [his] IEP goals when [his] May 3, 2018 IEP was develope1." AR at 1679.
The Hearing Officer looked to several pieces of evidence to reach this conclusion. First, the
Hearing Officer noted that Orlin's original IEP, developed when Orlin was in the sixth grade,
indicated that his mathematics and reading abilities were at a third- and second-grade level,
respectively. AR at 1678. In the winter of 2018, Orlin's MAP reading assessment placed him at a
second-grade level, unchanged from the May 11, 2017 assessment, but his iReady mathematics
assessment placed him at the second-grade level, an entire grade level decrease. Id. Orlin's MAP
mathematics assessment placed him in the second percentile. Id. In contrast, DCI's April 2018
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progress report indicated that Orlin was progressing on all three mathematics goals and one of
the reading goals. AR at 1678-79. The progress report further acknowledged that two reading
goals had not been introduced and Orlin was not making any progress on either written
expression goal. AR at 1679. Nevertheless, DCI's May 3, 2018 IEP amendment maintained the
same level of specialized instruction inside general education from the December 4, 2017 IEP
amendment (3 7 .5 hours per month) and prescribed 23 hours per month of specialized instruction
outside of general education, an modest increase of 30 minutes per month from the earlier
amendment and "well below the 76 hours prescribed on [his] May 11 , 2017 IEP." AR at 1678.
DCI first takes aim at the data used by the Hearing Officer. DCI claims that the Hearing
Officer failed to consider Odin's MAP scores and instead "only relied on scores from the iReady
program, which the IEP team noted were not an accurate description of his true abilities." 15 Pl. 's
MSJ at 24. This contention fails in several ways. The Hearing Officer did not "only rely" on
Odin's iReady scores-the Hearing Officer referenced Odin's iReady mathematics score in
conjunction with his discussion of Odin's MAP mathematics score, a separate evaluation.
Additionally, DCI mischaracterizes the IEP Team' s comments regarding the accuracy of the
iReady score. In the May 3, 2018 IEP amendment, the IEP Team explained that "[a]s of now,
iReady does not have a[] Spanish intensive version therefore [Orlin's] data may not be an
accurate description of his true abilities when taught in his native language." AR at 1155. That
said, the IEP Team expressed confidence that "[a] breakdown of scores in each subcategory
reveal [Orlin's] specific strengths and areas for growth." Id. Orlin scored at a second-grade level
in all of the measured subcategories and the IEP Team's narrative in each of the subcategories
15
The iReady program was "a diagno tic and in trnction program" used in Odin' s inten ive mathematics support
class at DC1. AR at l155. The program had "two part , including an online assessment and online instruction which
is individually adapted to each learner's current learning need." Id.33
indicated that Odin's difficulty in understanding various mathematics concepts was not only
related to his limited understanding of English. AR at 1155-56. Based on this evidence, it
appears that the IEP Team indicated that the iReady scores could be useful when viewed in
context, which it what the Hearing Officer did.
DCI next argues that, contrary to the Hearing Officer's determination, Odin's MAP
assessments reflected objective progress in reading and mathematics over both the 2017-18 and
2018-19 school years. Pl.'s MSJ at 23-24. In mathematics, DCI notes that "[Orlin] progressed
from a 193 in the fall of the 2017-2018 school year to a 215 in the fall of the 2018-2019 school
year." But as DCI's own filing acknowledges, "[t]he key inquiry regarding an IEP's substantive
adequacy is whether, taking account of what the school knew or reasonably should have known
of a student's needs at the time, the IEP it offered was reasonably calculated to enable the
specific student's progress" [and] ... "that standard calls for evaluating an IEP as of the time
each IEP was created rather than with the benefit ofhindsight." Pl.'s MSJ at 9-10 (citing Z.B.,
888 F.3d at 524) (internal quotation marks and citation omitted). DCI cannot look to evidence of
Orlin' s supposed progress in the fall of 2018, as this information was not available to DCI at the
time it developed his amended IEP in the winter and spring of 2018. The Hearing Officer instead
correctly examined the mathematics assessment scores available to DCI at the relevant time.
DCI' s argument about Orlin' s reading assessments fares no better. DCI insists that Orlin made
objective progress in reading from the fall to the spring of the 2017-18 school year and that the
Hearing Officer failed to consider this evidence. Pl. 's MSJ at 23-24. Specifically, DCI argues
that Odin's reading scores did improve some fifteen points between the fall of2018 and the
spring of 2018. Id. at 24 (citing AR at 879). However, the MAP reading assessment DCI cites
does not support the reading and in fact shows a decrease in scores over time. AR at 879.
34
Finally, DCI argues that the Hearing Officer overgeneralized and failed to properly
contextualize the IEP progress reports showing that Orlin was making progress toward his goals.
Pl.' s MSJ at 24. Specifically, DCI insists that the Hearing Officer failed to credit testimony by
Colley and Taylor stating that Orlin was progressing. Id. at 24--25. When assessing a student's
progress, courts should defer to the administrative agency's expertise. See K.S. v. Dist. of
Columbia, 962 F. Supp. 2d 216,221 (D.D.C. 2013) (internal citation omitted). And, as the
Supreme Court has plainly instructed, an IEP that establishes "merely more than de minimus"
progress is not appropriate. Endrew F., 580 U.S. at 402. Though DCI personnel may have stated
that Orlin was making some unquantifiable progress toward his IEP goals, his scores year-over-
year show a consistent lack of overall progress. In this way, the record clearly indicates that,
faced with evidence that Orlin's mathematics and reading abilities had not changed or worsened
since his original IEP, keeping Odin's specialized instruction hours outside general education the
same as the December 4, 2017 IEP amendment and only slightly increasing his inside general
education hours appeared to doom Odin's hopes for academic progress. Based on this evidence,
the Court sees no reason to disturb the Hearing Officer's finding that the May 3, 2018 IEP was
not appropriate. Therefore, the Hearing Officer did not err in that determination, and Lemus is
entitled to summary judgment on this point.
iii. April 25, 2019 IEP Amendment
The Hearing Officer similarly determined that Odin's sixth amended IEP, the
penultimate amendment before his expulsion, was not appropriate for the 2019-20 school year.
AR at 1680. In reaching this conclusion, the Hearing Officer looked to Odin's lack of objective
academic progress. Specifically, the Hearing Officer observed that Odin's January 2019 MAP
assessments in mathematics and reading placed him in lower grade levels than he was in May
2017 at Tubman. AR at 1679. Furthermore, DCl's own IEP progress reports indicated that Orlin
35
was not making any progress in mathematics, reading or written expression. Id. Odin's reading
teacher recommended "extensive one-on-one attention." Id. Nevertheless, DCI did not alter
Orlin' s prescription for 23 monthly hours of specialized instruction outside general education. Id.
The Hearing Officer further noted that DCI failed to provide Lemus with a Spanish-language
version of Odin's April 25, 2019 IEP amendment, in violation of a District of Columbia code
provision enacted shortly before the issuance of the IEP amendment. AR at 1680 (citing D.C.
Code Ann.§ 2-1933) (West 2019)).
DCI's primary contention is that the Hearing Officer narrowly focused on "what he
characterizes as a lack of progress on the MAP assessment, and in IEP goals, without
considering the context, the impact that the student's behavior and attendance had on his
progress, and the team's response to those circumstances." PL' s MSJ at 31. DCI argues that
testimony by four DCI witnesses-Colley, Taylor, Fatoumata Magassa, another of Orlin' s
special education teachers, and Michael Thomas, Odin's English teacher---clearly demonstrated
that Odin's increasing absences and disruptive behavior hindered his academic progress, and
that, even so, DCI took significant steps to support Orlin. Id. at 29-30. For example, DCI
developed a functional behavioral assessment and behavior implementation plan to address the
behavior, continued to provide small group and individualized instruction inside the classroom,
and offered various accommodations. Id. at 29. DCI claims that the Hearing Officer erred by not
referencing these witnesses' testimony or their consistent belief that the April 25, 2019 IEP
amendment appropriately supported Orlin. Id. at 31.
These arguments, like DCl's attempts to defend the previous IEPs, lack merit. Other
evidence in the record clearly showed that Odin's academic skills were not progressing at DCI.
In the face of this conflicting evidence, the Hearing Officer was not required to give deference to
36
DCI personnel's opinions about Odin's progress. See Dist. of Columbia Int'l Charter Sch., 2022
WL 873549, at *3; JN, 677 F. Supp. 2d at 322. Additionally, that DCI took steps to address
Odin's behavior is not evidence of the appropriateness of the IEP-the IDEA required DCI to
take these steps anyway. See 34 C.F.R. § 300.324(a)(2)(i) ("The IEP Team must-... In the case
of a child whose behavior impedes the child's learning or that of others, consider the use of
positive behavioral interventions and supports, and other strategies, to address that behavior[.]").
Furthermore, the Court respects the opinions ofDCI teachers who testified that Orlin progressed
in his IEP goals after the implementation of the behavior programs. But such respect does not
require this Court to endorse their conclusions about Odin's academic progress. Middleton, 312
F. Supp. 3d at 140.
Therefore, the Hearing Officer did not err in determining that DCI failed to demonstrate
that Odin's April 25, 2019 IEP amendment was appropriate, and Lemus is entitled to summary
judgment on this point.
E. The Hearing Officer Erred in Awarding a Specific Amount of Tutoring Hours and
Delegating to the IEP Team the Responsibility for Determining the Amount and
Type of the Rest of the Compensatory Education
Finally, DCI challenges part of the relief ordered by the Hearing Officer. The Hearing
Officer concluded that DCI had denied Orlin a FAPE from December 4, 2017, the date of his
second IEP amendment, through February 6, 2020, when he was expelled from DCI. AR at 1682.
However, the Hearing Officer further concluded that Lemus "offered no evidence of an
appropriate type or amount of compensatory education services to which [Orlin] is entitled," AR
at 1680, and therefore "any award by the Hearing Officer would be arbitrary." AR at 1681. In
reaching this conclusion, the Hearing Officer correctly recognized that Reid, this Circuit's
leading case governing the availability and calculation of compensatory awards in IDEA cases,
37
requires individualized compensatory awards. AR at 1680-81. The Hearing Officer further cited
B.D. v. Dist. of Columbia, a more recent Circuit case addressing compensatory awards. AR at
1681. The Hearing Officer described the case as "strongly suggest[ing] that Hearing Officer
Determinations that find a denial ofFAPE must address compensatory education services" and
that "assessments addressed at determining the nature and amount of service to address the
appropriate compensation for a specific student could ameliorate the fact-specific requirement."
AR at 1681 (citing B.D., 817 F.3d at 799-800).
The Hearing Officer then went on to order DCI to: (1) fund 100 hours of independent
tutoring services for Orlin in reading, mathematics, and written expression; (2) fund an
independent evaluation to determine how much Odin's academic skills could have reasonably
been expected to grow during the relevant period with an appropriate IBP; and (3) convene an
IBP team meeting within 30 days after receiving the evaluation to determine the appropriate
amount of compensatory education services for Orlin. 16 AR at 1682. DCI challenges the first and
third parts of the award as violative of Reid. Pl. 's MSJ at 32-33. The Court agrees.
Under Reid, courts and hearing officers may award "compensatory education" in the
form of "educational services ... to be provided prospectively to compensate for a past deficient
program." Reid, 401 F.3d at 522 (internal citation omitted). A compensatory education "award
must be reasonably calculated to provide the educational benefits that likely would have accrued
from special education services the school district should have supplied in the first place." Id. at
524. Calculation of a compensatory education award must "rely on individualized assessments,"
necessarily a fact-specific and flexible inquiry, rather than a "hour-for-hour replacement of time
spent without FAPE." Id. Here, the Hearing Officer's award of 100 hours of independent
16
The Hearing Officer's order used the team "Multidisciplinary Team." AR at 1682. This term is synonymous with
"IEP Team." See 20 U.S.C. § 1414; NS. ex rel. Stein v. Dist. of Columbia, 709 F. Supp. 2d 57, 60 (D.D.C. 2010).
38
tutoring, a form of compensatory education, was not supported by any individualized
assessments or facts, as the Hearing Officer himself admitted. AR at 1681; Platt v. Dist. of
Columbia, 168 F. Supp. 3d 253,258 (D.D.C. 2016).
Additionally, a Hearing Officer "may not delegate his authority to a group that includes
an individual specifically barred from performing the hearing officer's functions." Reid, 401
F.3d at 526. Under the IDEA, hearing officers preside over due process hearings and have broad
authority to award relief. B.D., 817 F.3d at 798; 20 U.S.C. § 1415(i)(2)(C)(iii). However, IDEA
due process hearings "may not be conducted by an employee of the State educational agency or
the local educational agency involved in the education or care of the child." 20 U.S.C.
§ 1415(f)(3). Therefore, Odin's IEP Team, which is partially made up ofDCI employees, cannot
exercise the Hearing Officer's power to determine appropriate compensatory education awards.
A hearing officer may reasonably rely on opinions, reports, or statements from such
employees when making an independent determination of what is an appropriate compensatory
education award-but the IDEA prohibits a hearing officer from delegating that determination.
Accordingly, the Court will require the Hearing Officer to make such an independent
determination on remand. Therefore, DCI is entitled to summary judgment on this point.
* * *
DCI has failed to prove to this Court that the Hearing Officer committed most of the
errors alleged. Therefore, the Court must affirm the Hearing Officer's decision, except for the
first and third parts of its relief order. Reid, 401 F.3d at 521; Kerkam, 862 F.2d at 887.
V. CONCLUSION
For the foregoing reasons, the Court will DENY IN PART AND GRANT IN PART
DCI's motion for summary judgment and GRANT IN PART AND DENY IN PART Lemus's
39
motion for summary judgment. Accordingly, the Court will VACATE IN PART the Hearing
Officer' s determination and REMAND the case for further proceedings. A separate Order shall
issue.
SIGNED this _ _ 5ay of March, 2023 .
Royce C. Lamberth
United States District Judge
40