D.K. Ex Rel. Klein v. District of Columbia , 983 F. Supp. 2d 138 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
D.K., a minor, by his parents, )
PAUL and MELISSA KLEIN, )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-110 (RMC)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
_________________________________ )
OPINION
Paul and Melissa Klein, in their own right and on behalf of their minor child D.K.,
filed this appeal of a Hearing Officer Determination, alleging that the District of Columbia
denied D.K. a free appropriate public education in violation of the Individuals with Disabilities
Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq., by refusing to continue D.K.’s
placement at the McLean School of Maryland (McLean) and recommending transfer to
Kingsbury Day School. The recommended move from Mclean to Kingsbury did not constitute a
change in D.K.’s “educational placement” because this phrase is properly understood to mean an
educational program and not a location. Accordingly, the District’s motion for summary
judgment will be granted, and Plaintiffs’ cross motion will be denied.
I. FACTS
A. Statutory Framework
The Individuals with Disabilities Education Improvement Act of 2004 (IDEA)
ensures 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.
1
§ 1400(d)(1)(A). In designing a free appropriate public education (FAPE) for students with
disabilities, the child’s parents, teachers, school officials, and other professionals collaborate in a
“multi-disciplinary team” to develop an individualized educational program (IEP) to meet the
child’s unique needs. See id. § 1414(d)(1)(B). An IEP must include a statement of needs,
services, learning aids, and programs that should be made available to the student. Id. § 1414(d).
Local school officials utilize the IEP to assess the student’s needs and assign a commensurate
learning environment. See id. § 1414(d)(1)(A). “Once the IEP is developed, the school system
must provide an appropriate placement that meets those needs and, if an appropriate public
placement is unavailable, the school system must provide an appropriate private placement or
make available educational-related services provided by private organizations to supplement a
public placement. Petties v. District of Columbia, 238 F. Supp. 2d 114, 116 (D.D.C. 2002)
(citing 20 U.S.C. § 1412(a)(10); 34 C.F.R. §§ 300.349, 300.400–402).
While the District of Columbia is required to provide disabled students a FAPE, it
is not required to, and does not, guarantee any particular outcome or any particular level of
academic success. See Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S.
176, 192 (1982); Dorros v. District of Columbia, 510 F. Supp. 2d 97, 100 (D.D.C. 2007). If the
parent objects to the identification, evaluation, or educational placement of a disabled child, or
whether she is receiving a FAPE, 20 U.S.C. § 1415(b)(6), the parent may seek an “impartial due
process hearing” before a D.C. Hearing Officer, who issues a Hearing Officer Determination
(HOD). Id. § 1415(f)(1)(A). If the parent is dissatisfied with the HOD, she may appeal to a state
court or a federal district court. See id. § 1415(i)(2)(A). Plaintiffs here are parents who are
dissatisfied with an HOD, and they have filed this appeal.
B. Facts
2
D.K. is a fifteen-year-old student who has been diagnosed with disabilities
including Mixed Receptive-Expressive Language Disorder, Attention Deficit Hyperactivity
Disorder, Learning Disorder, Pervasive Developmental Disorder, Anxiety Disorder, and
stuttering. AR 1 at 10, 12. When he was ready to begin third grade at the beginning of the 2006-
2007 school year, D.K.’s parents, Paul and Melissa Klein (Plaintiffs), unilaterally removed him
from his neighborhood elementary school and enrolled him in McLean, a private school. Id. at
11, 61-62. McLean offers “full-time individual instruction in a full-time mainstream setting.”
Id. at 385, 388.
Plaintiffs then sought a due process hearing and an order requiring the District to
pay for D.K.’s tuition at McLean. On May 9, 2007 a Hearing Officer found: D.K. was a student
with special education needs; the District had denied D.K. a FAPE; and D.K. was making
progress at McLean. Id. at 59-69. D.K.’s placement setting was designated as “out of general
education,” and his parents did not object. Id. at 11. Despite the fact that D.K.’s placement was
“out of general education” and McLean is not a special education school, the Hearing Officer
determined that McLean was a proper placement and ordered the District to fund D.K.’s
education at McLean. Id. at 67-68. As a result, the District, via its component District of
Columbia Public School System (DCPS), maintained D.K.’s placement at McLean through the
end of the 2011-2012 school year. 2
DCPS did not monitor D.K.’s progress at McLean from 2007-2010. Id. at 7.
Then, in the spring of 2010, the District told Plaintiffs that D.K.’s IEP had expired and that
1
Pages 1-455 of the Administrative Record are filed at Docket 5, and pages 456-873 are filed at
Docket 6.
2
The record is unclear whether McLean ever actually met the terms of D.K.’s IEP, but this
question is not at issue here.
3
updated evaluations were needed for a new IEP. Id. at 7. Plaintiffs hired Dr. William Stixrud to
evaluate D.K. for the purpose of providing input for the new IEP. He confirmed that D.K. is
very bright with significant cognitive, academic, social, and emotional challenges. Id. at 90. Dr.
Stixrud recommended continued placement at McLean because, although D.K. would not be in a
special education environment, he would be in a small, structured classroom, he would be
exposed to a demanding academic curriculum and other bright students, and he would receive
necessary support. Id.
Plaintiffs forwarded the report and recommendation to the District in February
2011, but the District took no action. Id. at 106, 121-24. In September 2011, Plaintiffs
submitted a proposed IEP, developed by their educational consultant and staff at McLean. Id. at
126-30. The District determined that it needed additional evaluations and that it needed to speak
to Dr. Stixrud about his evaluation. Id. at 134-40.
In December 2011, a DCPS speech-language pathologist evaluated D.K. She
determined that D.K. needed speech-language services in order to assist him with
communication deficiencies and behavior support to help him with his anxiety and frustration
over his inability to express himself easily. Id. at 159-178. D.K.’s out-of-school therapist
believes that D.K. has fluctuating anxiety related to his difficulty with auditory sensing and
processing. Id. at 16.
An IEP meeting was convened on March 1, 2012, and a multi-disciplinary team
found that D.K. was eligible for services as a student with Multiple Disabilities. Id. at 213-37.
On March 15, 2012, another IEP meeting was held to review a draft IEP. At this meeting, the
District informed D.K.’s parents that the school system would not be able to continue D.K.’s
placement at McLean because it lacked the necessary Certificate of Approval from the D.C.
4
Office of the State Superintendent of Education. Id. at 14, 261. The District referred Plaintiffs
to Kingsbury Day School and Harbour School, both private schools that provide full-time self-
contained special education services to students with special education needs. Id. at 276. The
team agreed to reconvene several weeks later to permit Plaintiffs time to review the draft IEP.
Plaintiffs visited both Kingsbury and Harbour and concluded that their programs
were not desirable because they serve only disabled students and their curricula are not
sufficiently rigorous. Id. at 276. D.K. feared leaving his social relationships at McLean and was
concerned about the noise level at Kingsbury. Id. at 16, 536-37.
In August 2012, the multidisciplinary team reconvened to finalize the IEP and
placement for the 2012-2013 school year. Id. at 292-93. The new IEP required D.K. to receive
specialized instruction for 27.5 hours per week, speech and language services for one hour per
week, and behavioral support services for 1 hour per week; each was required to be provided
outside a general education setting. Id. at 343. Despite Plaintiffs’ insistence that these services
be implemented at McLean, the IEP team issued a formal notice proposing to transfer D.K. to
Kingsbury. Id. at 298-99. D.K.’s parents rejected the proposed move and maintained D.K.’s
enrollment at McLean. Id. at 302.
Plaintiffs requested a due process hearing, alleging that the District failed to
propose a proper IEP and placement for D.K. Id. at 8, 309-17. They contended that McLean is
an appropriate placement for D.K. because it offers a rigorous program and contact with
nondisabled peers and that Kingsbury is an inappropriate placement because its academic
programming is insufficiently rigorous and it offers contact only with peers who are disabled.
Id. at 8; see also id. at 535-39, 619-21.
5
A hearing was held on December 6 and 12, 2012. Evidence was presented
showing that McLean is a general education school that provides special education to D.K. while
giving him access to non-disabled peers. Id. at 609-11. At McLean, class size is generally ten
students. Id. at 613. There is adult support for interaction with peers, and students can leave the
room when needed due to anxiety. Id. at 611. Students are provided advanced class units to
provide academic rigor, while providing modifications. Id. D.K. has made progress at McLean.
Id. at 820-21.
However, McLean is not a special education school; it offers “full-time individual
instruction in a full-time mainstream setting.” Id. at 385, 388. McLean does not implement
IEP’s, and it does not ensure compliance with the IEP process. Id. at 19, 789. Instead, in the
case of D.K., McLean used a “learning profile” to address D.K.’s needs. Id. at 819-20. 3 It is not
clear whether McLean cannot or will not implement IEPs, only that it does not implement IEPs.
Further, McLean does not possess a Certificate of Approval from the D.C. Office of the State
Superintendent of Education and has not applied for one. Id. at 798.
Kingsbury, in contrast, can and would implement D.K.’s IEP; it has a Certificate
of Approval. Id. at 741-42. All teachers at Kingsbury are content-certified or are certified in
special education. Id. at 19, 757. Class size is six to ten students, with one teacher and one aide
per class room, and other service providers “push in” to the classroom to assist students during
class time. Id. at 722. The upper school has a special program for students who are
academically and cognitively gifted, and advanced placement courses are being added. Id. at
737, 762-71. Kingsbury uses various strategies to assist students with high levels of anxiety
and/or sensitivity to sound, including headsets, earplugs, preferential seating, and designated
3
The District employee who monitors placement of students in private schools testified that he
was surprised to discover that McLean does not implement IEP’s. AR at 789.
6
“go-to” spaces. Id. at 773-74. All students at Kingsbury are disabled and receive special
education services. Id. at 725, 751.
On December 22, 2012, the Hearing Officer rendered a decision (1) finding that
Plaintiffs failed to meet their burden of showing that the District denied D.K. a FAPE;
(2) dismissing Plaintiffs’ administrative complaint; and (3) denying Plaintiffs’ request to
continue D.K.’s placement at McLean. Id. at 6-35. The Hearing Officer noted that the IEP
called for full-time specialized education outside of the general education setting, and McLean is
unwilling and/or unable to implement D.K.’s IEP. Id. at 26. The Hearing Officer reasoned that
because McLean had not implemented D.K.’s IEP, would not ensure that it would implement the
IEP, and did not hold a current Certificate of Approval from the D.C. Office of the State
Superintendent of Education, it was not an appropriate placement. Id. The Hearing Officer
determined that the move from McLean to Kingsbury was merely a change in location and did
not constitute a change in “educational placement” under the IDEA. Id.
Shortly after the Hearing Officer rendered his decision, the District asked
Plaintiffs if they would accept the proposed placement at Kingsbury. Mot. for Prelim. Inj. [Dkt.
8], Ex. A (12/27/12 email). Plaintiffs did not accept and instead maintained D.K.’s enrollment at
McLean. On January 25, 2013, Plaintiffs filed this suit appealing the Hearing Officer’s
December 2012 decision. The Complaint alleges (1) the District of Columbia denied D.K. a
FAPE in violation of IDEA; (2) by refusing to continue D.K.’s placement at McLean and
recommending transfer to Kingsbury Day School, the Hearing Officer failed to order an
appropriate educational placement; and (3) the Hearing Officer erred by dismissing Plaintiff’s
administrative claim with prejudice and denying continued funding for D.K.’s attendance at
McLean. See Compl. [Dkt. 1].
7
On June 6, 2013, the District sent a letter to Plaintiffs, indicating that because
Plaintiffs had rejected the proposed FAPE by failing to enroll D.K. at Kingsbury, the school
system would discharge D.K. and cease paying his tuition at McLean. Id., Ex. B (6/6/13 letter).
Plaintiffs sought a preliminary injunction for the purpose of requiring the District to maintain and
fund D.K.’s placement at McLean during the pendency of this suit. Mot. for Prelim. Inj. [Dkt.
8]. On August 26, 2013, the Court denied the motion. Op. [Dkt. 14]; Order [Dkt. 15]. The
parties now have fully briefed cross motions for summary judgment.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In evaluating a hearing officer’s decision in an
IDEA case such as this one, a court reviews the administrative record, may hear additional
evidence, and bases its decision on the preponderance of the evidence, granting such relief as
deemed appropriate. 20 U.S.C. § 1415(i)(2)(C). “Where, as here, neither party seeks to present
additional evidence, a motion for summary judgment operates as a motion for judgment based on
the evidence compromising the record.” Parker v. Friendship Edison Public Charter Sch., 577
F. Supp. 2d. 68, 72 (D.D.C. 2008) (internal quotation marks and citation omitted).
The burden of proof is with the party challenging the administrative
determination, who must persuade the court that the hearing officer was wrong. Reid v. District
of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884,
887 (D.C. Cir. 1989) (internal quotation marks omitted)). While the court must make an
independent determination, the court also should give “due weight” to the decision of the hearing
8
officer and should afford some deference to the expertise of the hearing officer and the school
officials. See Rowley, 458 U.S. at 206; Lyons v. Smith, 829 F. Supp. 414, 419 (D.D.C. 1993).
III. ANALYSIS
A. Educational Placement
The parties dispute whether the proposed change in location––from McLean to
Kingsbury––constitutes a change in “educational placement.” Plaintiffs assert that the location is
a critical component of D.K.’s educational program; the District counters that the services
provided under D.K.’s IEP have not fundamentally changed and the particular school where such
services are delivered is not relevant.
The IDEA does not define “educational placement,” and the interpretation of the
phrase has been left to the courts. Courts have defined the term “educational placement” as
meaning something “between the physical school attended by a child and the abstract goals of a
child’s IEP.” Laster v. District of Columbia, 394 F. Supp. 2d 60, 64-65 (D.D.C. 2005) (citing
Bd. of Educ. of Cmty. High Sch. Dist. No. 218 v. Ill. State Bd. of Educ., 103 F.3d 545, 548 (7th
Cir. 1996)). Implying that the term means more than the physical school building that a child
attends, the D.C. Circuit has explained that if a parent cannot identify a “fundamental change in,
or elimination of[,] a basic element of the education program,” there has been no change in
“educational placement.” Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir.
1984); 4 see also Assistance to States for the Education of Children With Disabilities and
Preschool Grants for Children With Disabilities, 71 Fed. Reg. 46,540, 46,588-89 (Aug. 14, 2006)
(codified at 34 C.F.R. Pts. 300 and 301) (“[M]aintaining a child’s placement in an educational
4
Lunceford discussed the concept of “educational placement” in the context of applying the
IDEA’s “stay put” provision. The stay put provision requires a child to remain in the “then-
current educational placement” during the pendency of an administrative hearing and any appeal.
20 U.S.C. § 1415(j).
9
program that is substantially and materially similar to the former placement is not a change in
placement.” (emphasis added)). In other words, there is no a change in “educational placement”
under the IDEA where a student is placed in a new program where all the basic elements are
fundamentally the same as the prior placement.
Furthermore, a change of location alone does not constitute a change in
“educational placement” under the IDEA. “Educational placement” is a term of art. In White v.
Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003), the Fifth Circuit held that
“educational placement” under the IDEA means the “educational program—not the particular
institution where that program is implemented.” Similarly, the Second Circuit construed
educational placement as “the classes, individualized attention and additional services a child
will receive—rather than the ‘bricks and mortar’ of the specific school.” T.Y. v. N.Y.C. Dep’t of
Educ., 584 F.3d 412, 419 (2d Cir. 2009); see also A.W. ex rel. Wilson v. Fairfax Cnty. Sch. Bd.,
372 F.3d 674, 682 (4th Cir. 2004) (“educational placement” under the IDEA refers to the general
education program and environment, not to a location); Johnson v. District of Columbia, 839 F.
Supp. 2d 173, 178 (D.D.C. 2012) (physical placement and educational placement are not
synonymous); Spilsbury v. District of Columbia, 307 F. Supp. 2d 22, 26-27 (D.D.C. 2004) (the
phrase “educational placement” encompasses “the whole range of service that a child needs; the
term “cannot be read to only indicate which physical school building a child attends”). 5
5
Plaintiffs erroneously cite Laster v. District of Columbia, 394 F. Supp. 2d 60 (D.D.C. 2005), for
the proposition that “a change in physical location may be considered a change in educational
placement.” Pl. Mot. for Summ. J. at 11. Nowhere does Laster make such a statement. Laster
merely cites cases defining educational placement as discussed here. See Laster, 394 F. Supp. 2d
at 64-65 (citing Bd. of Educ. of Cmty. High Sch. Dist. No. 218, 103 F.3d 545, 548 (7th Cir.
1996) (explaining that “educational placement” falls somewhere between the physical school
attended by the child and the goals of the IEP) and Silsbury, 307 F. Supp. 2d at 26-27(“educational placement” encompasses the whole range of services the student needs, not just the
physical school building)).
10
First, Plaintiffs have not pointed to a fundamental change in, or elimination of,
any basic element of D.K.’s educational program as set forth in his IEP. The 2007 IEP set forth
D.K.’s placement as “out of general education,” AR at 11, and the 2012 IEP renewed this “out of
general education” designation, id. at 335-46. There is no change in “educational placement”
under the IDEA because D.K.’s new IEP is substantially and materially the same as the old IEP.
71 Fed. Reg. at 46,588-89. In the absence a fundamental change in or elimination of a basic
element of D.K.’s educational program, see Lunceford, 745 F.2d at 1582, there has been no
change in educational placement.
Plaintiffs insist that the special education services set forth in D.K.’s IEP should
be implemented at McLean. Plaintiffs view McLean and Kingsbury as “at the opposite ends of
the continuum of placements and services” and they argue that D.K.’s educational placement
was improperly changed “from a mainstream setting where he has the ability to learn from and
interact with non-disabled peers [McLean], to a full-time, self-contained special education
setting with no access to non-disabled peers [Kingsbury].” Pl. Mot. for Summ. J. [Dkt. 7] at 11-
12].
As explained above, the physical school alone does not constitute an “educational
placement.” D.K.’s educational placement consists of the instruction and services spelled out in
his IEP. Plaintiffs argue that McLean and Kingsbury offer vastly different programs because
McLean offers general education with access to non-disabled peers and Kingsbury does not.
However, this distinction is not relevant to D.K.’s IEP. D.K.’s IEP requires all instruction and
services to be provided to D.K. outside a general education setting. Thus, under the terms of the
IEP, it does not matter that McLean also educates non-disabled students in a general education
setting. D.K.’s IEP requires that he be educated outside the general education setting. The
11
recommended transfer from McLean to Kingsbury does not constitute a change in “educational
placement” as the term is used in the IDEA.
Further, the District is barred from placing D.K. at McLean under the IDEA. The
staff of McLean have indicated that the school does not implement IEPs. See AR at 789, 819-20.
D.K. is entitled to a FAPE under the IDEA, and for a disabled student, a FAPE requires that the
school system provide services in compliance with an IEP. See 20 U.S.C. § 1401(9). Because
McLean cannot or will not implement D.K.’s IEP, the District cannot place D.K. there. 6 See
Johnson, 839 F. Supp. 2d at 179 (a school district may not place a student at a school that cannot
provide the services required by the student’s IEP); D.C. Code § 38-2561.03(a) (a student with a
disability may be placed only in a school that can implement the student’s IEP).
In addition, the District may not place D.K. at McLean because it lacks a valid
Certificate of Approval. D.C. Code § 38-2561.03 (no special education student may be placed in
a private school that lacks a valid Certificate of Approval in accordance with D.C. Code § 38-
2561.07, unless a court orders such placement); 5-A D.C. Mun. Regs. § 2844.1 (same).
Plaintiffs point out that the D.C. Code permits a court to order placement at a school lacking a
valid Certificate. However, this Court declines to order placement at McLean because the school
has made it clear that it cannot/will not implement D.K.’s IEP. Placement there would be
antithetical to the purpose of IDEA––it would deny D.K. a FAPE.
While McLean is not a proper placement, Kingsbury is. D.K.’s IEP––specialized
instruction and services outside of the general educational setting––can be implemented at
Kingsbury. Kingsbury also has a valid Certificate of Approval.
6
It is unclear whether the staff at McLean are qualified to implement D.K.’s IEP. The District
asked to review the certificates and qualifications for McLean’s teachers, but McLean did not
provide them. AR at 793-94. District employees sought to observe students at McLean
(including D.K.) who are funded by the District, but McLean refused. Id. at 18-19.
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B. Least Restrictive Environment
Plaintiffs also argue that the Kingsbury placement violates the requirement that
D.K. be placed in the “least restrictive environment.” The IDEA provides that children with
disabilities must be educated “to the maximum extent appropriate” with children without
disabilities. 20 U.S.C. ¶ 1412(a)(2), (5). A disabled child is to be removed from the general
education setting only if the nature or severity of his disability is such that education in regular
classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34
C.F.R. § 300.114.
While the IDEA requires that students be educated in the least restrictive
environment, D.K.’s IEP calls for full-time education outside of the general setting. The IEP did
not specify that he should receive any instruction or services within the general education
environment. McLean offers individualized instruction, but in a general education setting.
Moreover, McLean cannot or will not implement D.K.’s IEP. Thus, even taking into
consideration that D.K. should be placed in the least restrictive environment, McLean is not a
possible placement. Kingsbury, on the other hand, offers the precise type of education specified
in D.K.’s IEP––individual instruction in a special education setting.
C. Transition Services
In addition to complaining about the transfer of D.K. from McLean to Kingsbury,
Plaintiffs erroneously allege that the Hearing Officer erred by failing to consider the need for
services to implement D.K.’s transition from McLean to Kingsbury; D.K. needed such services
due to anxiety issues. The record belies this contention. Benjamin Persett, a DCPS employee in
charge of monitoring placements in non-public schools, made repeated attempts to contact
Plaintiffs in the summer of 2012 to effectuate D.K.’s smooth transition to Kingsbury. AR at 291.
13
Marlene Gustafson, the associate head of Kingsbury, testified that Kingsbury would work with
D.K. and his parents to answer their questions and respond to their concerns, to allow D.K. to
articulate his worries, to consider ways to address D.K.’s anxiety about a new school setting, and
to identify compatible peers. Id. at 759-60. Ms. Gustafson indicated that Kingsbury would
consider placing D.K. in courses in areas that are his proven areas of strength in order to build
his confidence and sense of accomplishment. Id. at 760. The Hearing Officer considered this
evidence, id. at 20, and concluded that “the staff at Kingsbury would take appropriate steps to
ensure that the student’s transition to Kingsbury would be done in a reasonable time and method
to assist the student in making a successful transition,” id. at 26.
D. Knowledge of Witnesses
Plaintiffs argue that because the District staff and witnesses at the administrative
hearing did not know D.K. personally, the Court should discount their testimony. First, it must
be noted that Plaintiffs bear the burden of persuading the Court that the hearing officer was
wrong. Reid, 401 F.3d at 521. Second, the Court must give “due weight” to the decision of the
hearing officer and should afford some deference to the expertise of the hearing officer and the
school officials. See Rowley, 458 U.S. at 206; Lyons, 829 F. Supp. at 419. Third and finally, the
evidence shows that the testimony of the District staff was well-grounded. Mr. Persett, a DCPS
monitor, monitored D.K. as part of his caseload since April 2011. AR at 788. D.K. was
transferred to the caseload of Andrew Drummond, another DCPS monitor, in July 2012; Mr.
Drummond indicated that he reviewed D.K.’s file and spoke to D.K. directly. Id. at 825-26. Ms.
Gustafson, the Kingsbury associate head, reviewed D.K.’s admissions file, including disclosures
and evaluations submitted on D.K.’s behalf. Id. at 789-90. The record reveals no lack of
knowledge regarding this student.
14
IV. CONCLUSION
Plaintiffs have not shown that the HOD was wrong because they neither offer nor
point to any evidence in the record that would undermine its factual or legal conclusions.
Because the District offered a FAPE to D.K. at Kingsbury and Plaintiffs rejected the offer by
maintaining D.K.’s enrollment at McLean, Plaintiffs are not entitled to reimbursement for D.K.’s
tuition at McLean. See 20 U.S.C. § 1412(a)(10)(C)(i) (a local educational agency is not required
to pay for the cost of education at a private school if the agency made a FAPE available to the
child and the parents chose to send the child elsewhere).
For the reasons stated above, the Court will deny Plaintiffs’ Motion for Summary
Judgment [Dkt. 7] and will grant the District of Columbia’s Motion for Summary Judgment
[Dkt. 11]. Judgment will be entered in favor of the District of Columbia. A memorializing
Order accompanies this Opinion.
Date: October 2, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
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