District of Columbia v. Pearson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DISTRICT OF COLUMBIA, :
:
Plaintiff, : Civil Action No.: 11-2043 (RC)
:
v. : Re Document Nos.: 6, 7
:
ANNETTE PEARSON, :
Mother and Next Friend of J.P., a minor, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING THE
DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
J.P. is a minor child who is eligible to receive special education services. Pursuant to
administrative proceedings below, J.P. was initially placed in a non-public school in Springfield,
Virginia. After one year, however, the District of Columbia Public Schools (“the District”)
elected to place him in one of its public schools. J.P.’s mother subsequently filed a due process
complaint against the District. During the ensuing due process hearing, a hearing officer held
that the District had not denied J.P. a free and appropriate public education (“FAPE”) under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., but outlined
specific steps that the District should take to enhance the services that it provided to J.P. The
District now appeals the hearing officer’s decision, contending that the remedy that she ordered
should be vacated. The plaintiff has filed a motion for summary judgment, and the defendant,
J.P.’s mother, has filed a cross-motion for summary judgment. For the reasons discussed below,
the Court grants the plaintiff’s motion, and denies the defendant’s cross-motion.
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II. FACTUAL & PROCEDURAL BACKGROUND
J.P. is a 16-year-old student in need of special education services. Pl.’s Statement of
Material Facts (“Pl.’s Stmt.”) ¶ 2. In 2010, he was given a comprehensive psychological
evaluation, which indicated that he was deficient in all academic areas, and that he had attention-
deficit hyperactivity disorder and depression. Id. Pursuant to a hearing officer’s determination
(“HOD”) on November 12, 2010, the District placed and funded J.P. at Accotink Academy, a
non-public school in Springfield, Virginia. Id. ¶ 3. On December 10, 2010, a Multi-Disciplinary
Team (“MDT”) met to review and revise J.P.’s Individualized Education Program (“IEP”),
which had been developed on December 7, 2010. Id. ¶ 4. The IEP indicated that J.P. was to
receive 26 hours per week of Specialized Instruction, and 240 hours per week of Behavioral
Support services outside of the general education setting. Id. ¶ 6. During the 2010-11 school
year, J.P. was disciplined for various offenses, including being disruptive, using foul language,
not following directions, and being disrespectful. Id. ¶ 9. His grades worsened in all subjects
except for one, and he was absent a total of 77 days. Id. ¶¶ 10-11.
An MDT met on June 7, 2011, and proposed to change his placement to Woodson High
School, a public school in the District. Pl.’s Stmt. ¶ 9. J.P.’s mother, the defendant in this
matter, opposed that placement, stating that she wanted him to remain at Accotink. Id. ¶ 14. On
June 9, 2011, the defendant filed an administrative due process complaint against the District,
alleging that it had denied J.P. a FAPE. Id. ¶ 15; Administrative Record (“A.R.”), Due Process
Compl. Notice [Dckt. #5-5] at 190. A pre-hearing conference was held on July 11 and 20, 2011,
to clarify the defendant’s claims. Pl.’s Stmt. ¶ 17.; Hearing on Decision (“HOD”) [Dckt. #5-1] at
2.
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After the conference, a Pre-Hearing Conference Summary and Order was issued on July
21, 2011. Pl.’s Stmt. ¶ 17. The pre-hearing order stated that the issues to be presented at the
upcoming due process hearing were limited to those raised in the complaint, as modified by the
order. A.R., Pre-Hearing Conference Summary and Order [Dckt. #5-6] at 226. The order
certified that the issues for adjudication at the due process hearing were whether the District had
denied J.P. a FAPE by 1) failing to offer a placement that could meet his needs for the 2010-11
school year; and by 2) failing to develop an appropriate IEP that included a full description of his
Least Restrictive Environment (“LRE”), which was an explanation of the Specialized Instruction
that he required, and by failing to develop a transition plan to an alternate setting that reflected
his interests and needs, including addressing his need for independent living skills. Id. at 226-27.
The due process hearing was held on August 3 and 10, 2011. Pl.’s Stmt. ¶ 17. During
the hearing, the defendant withdrew the transition claim, where she had asserted that the District
had failed to revise J.P.’s IEP to include a finalized transition plan to an alternate setting. Id. ¶
19. On August 23, 2011, the hearing officer issued an HOD. Id. ¶ 20. The HOD addressed two
issues: 1) whether the District had denied J.P. a FAPE by failing to offer an appropriate
placement for the 2011-12 school year; and 2) whether the District had denied J.P. a FAPE by
failing to develop an IEP that included a full description of his LRE. HOD at 3. After making
several findings of fact, the hearing officer held that J.P.’s mother failed to prove that the District
had denied him a FAPE with regard to both issues. Id. at 19, 22.
The HOD also stated, however, that J.P. has significant emotional problems that interfere
with his attendance and participation in school, and that the IEP failed to address his truancy and
school avoidance, even as these things have impeded his ability to progress to the next grade. Id.
at 18. The HOD further noted that J.P.’s mother had not addressed this issue in her complaint
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and in the evidence that she had presented. Id. at 22. The HOD also stated that it was evident
that J.P. required “additional assistance outside of school,” or, “[i]in other words . . . community
services designed to ensure” that he would get sufficient sleep, be properly nourished, get to
school on time, complete his homework, have social and recreational opportunities, and follow a
regular routine. Id.The HOD thus ordered that the District revise J.P.’s IEP to include weekly family
counseling and that it provide him with a “trained mentor, social worker, or similar service
provider.” Id. at 18. The service provider was required to arrive at J.P.’s home every morning
before school, and ensure that he would get out of bed, dress for school, eat a healthy breakfast,
and arrive at school on time, homework in hand (where the provider would walk J.P. to class, if
necessary). Id. In addition, the service provider would have to meet J.P. at school at the end of
the day, accompany him home, ensure that he ate a healthy snack, assist him with completing his
homework, and make sure that he had a healthy dinner (where the service provider would give
J.P’s mother nutritional counseling, if necessary). Id. at 18-19. The service provider would have
to ensure that J.P. followed an appropriate personal hygiene routine and went to bed at a
reasonable hour, and he or she was required to make all reasonable efforts to guarantee that J.P.
received at least eight hours of sleep. Id. at 19. If necessary, the service provider would have to
assist J.P.’s mother in obtaining treatment for his sleep disorder. Id. The HOD finally ordered
that the service provider ensure that J.P. engage in therapeutic recreation at least twice a week,
for at least two to three hours per session. Id.The District has now filed this action to appeal part of the hearing officer’s decision. The
parties have filed cross-motions for summary judgment. The Court now turns to the parties’
arguments and the applicable legal standards.
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III. ANALYSIS
A. Standard of Review for Administrative Decisions Under the IDEA
The IDEA was enacted “to ensure that all children with disabilities have available to
them a free appropriate public education [“FAPE”] that emphasizes special education and related
services designed to meet their unique needs and prepare them for further education,
employment, and independent living . . . .” 20 U.S.C. § 1400(d)(1)(A). A “free appropriate
public education” must “sufficient[ly] confer some educational benefit upon the [] child.” Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982). If a parent or
guardian objects to the identification, evaluation, or educational placement of the student, or the
provision of a FAPE, 20 U.S.C. § 1415(b)(6)(A), the parent or guardian may seek an impartial
due process hearing, id. § 1415(f)(1). This involves the parent or guardian filing a due process
complaint, and then an independent hearing officer determining during the hearing whether the
student received a free appropriate public education. See id. § 1415(f)(3)(E)(i). After the
hearing, “[a]ny party aggrieved by the findings and decision . . . shall have the right to bring a
civil action with respect to the complaint presented . . . .” Id. § 1415(i)(2)(A).
Although seeking judicial review of an administrative agency's decision by way of a
summary judgment motion “is permissible under the IDEA, it is not a true summary judgment
procedure. Instead, the district court essentially conduct[s] a bench trial based on a stipulated
record.” L.R.L. ex rel. Lomax v. District of Columbia, 2012 WL 4789532, at *3 (quoting Ojai
Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993)). As no new evidence has been
submitted here, the Court will treat the parties' cross-motions for summary judgment as motions
for judgment based on the administrative record. See S.B. v. District of Columbia, 783 F. Supp.
2d 44, 50 (D.D.C. 2011). In other words, rather than applying the typical standard applicable to
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a summary judgment motion, which may be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law,” FED.R.CIV.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986), the court
in an IDEA case conducts a summary adjudication, Phillips v. District of Columbia, 736 F. Supp.
2d 240, 246 (D.D.C. 2010) (“If no additional evidence is introduced by the parties in a civil suit
seeking review of an administrative decision, a motion for summary judgment operates as a
motion for judgment based on the evidence comprising the record.”) (alterations and internal
quotation marks omitted) (quoting Thomas v. District of Columbia, 407 F. Supp. 2d 102, 109
(D.D.C.2005)).
In evaluating a hearing officer's decision under the IDEA, the court reviews the
administrative record and bases its decision on the preponderance of the evidence, where it
grants relief as deemed appropriate. 20 U.S.C. § 1415(i)(2)(C)(iii). The hearing officer’s
decision is afforded “less deference than is conventional in administrative proceedings.” Reid v.
District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005). Yet while a court must “engage in a
more rigorous review of the decision below than is typical in administrative cases,” it should
“nevertheless accord the [h]earing [o]fficer’s decision due weight[,]” and should not substitute
its own view of sound educational policy for that of the hearing officer. See Rowley, 458 U.S. at
206. The burden of proof is with the party challenging the administrative determination, who
must “at least take on the burden of persuading the [C]ourt that the hearing officer was wrong.”
Reid, 401 F.3d at 521.
B. The Hearing on Decision’s Order Revising the IEP to Include a
Service Provider Should be Vacated
The District contends that this Court should vacate the HOD’s requirement that the
District revise J.P.’s IEP to include a service provider who would oversee his daily routine.
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Def.’s Mot. at 14. According to the District, the issue of J.P.’s truancy and “school avoidance”
was not raised in the administrative complaint, certified as an issue to be adjudicated at the due
process hearing, or agreed to by the defendant or by the District. Id. Instead, the District argues,
this issue was raised sua sponte by the hearing officer, and the accompanying remedy to provide
a service provider was not supported by the evidence presented at the hearing. Id. Thus, the
District contends, this remedy should be vacated. Id.In her cross-motion, the defendant asserts that J.P.’s behavior and emotional problems
were discussed in the due process complaint, and that these problems gave rise to his truancy.
Pl.’s Mot. at 9. The defendant also argues that there is no basis to limit the hearing officer’s
authority to provide the relief that she ordered, and that the HOD should be upheld. Id.Under the IDEA, the subject matter of a due process hearing is limited to those issues that
were raised in the due process complaint by the party requesting the hearing. 34 C.F.R. §
300.511(d); McCrary v. District of Columbia, 701 F. Supp. 2d 191, 194 (D.D.C. 2011). To
allow the opposing party to properly defend itself during the hearing, issues that the opposing
party did not have notice about may not be addressed during the hearing, unless that party agrees.
20 U.S.C. § 1415(f)(3)(B); see also Hawaii Dep’t of Educ. v. D.K. ex rel. N.K., 2006 WL
1646093, at *4 (D. Haw. June 6, 20060). Many courts have independently reached this
conclusion over the years, before it was codified by Congress. D.K. ex rel. N.K., 2006 WL
1646093 at *4 (discussing 20 U.S.C. § 1415(f)(3)(B)).
In this case, the issue of J.P.’s truancy was not raised in the due process complaint. See
generally Due Process Compl. Notice [Dckt. #5-5]. In addition, it was not identified as an issue
during the pre-hearing conference, which was intended to clarify J.P.’s mother’s claims, nor was
it mentioned in the pre-hearing order, which explicitly stated that the issues to be presented at the
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upcoming due process hearing were limited to those raised in the complaint, as modified by the
order. A.R., Pre-Hearing Conference Summary and Order [Dckt. #5-6] at 226.
Instead, the only two issues that the hearing officer certified for adjudication during the
due process hearing, itself, were whether the District had denied J.P. a FAPE by 1) failing to
offer him an appropriate placement, and by 2) failing to develop an IEP that included a full
description of his LRE. HOD at 3. Neither of these issues involved addressing J.P.’s truancy;
instead, both questions (and indeed, the complaint, itself) stemmed from the disagreement
between J.P.’s mother and the District about where he should be placed. See Pl.’s Stmt. ¶ 14;
A.R., Due Process Compl. Notice [Dckt. # 5-5] at 189-90. Specifically, his mother desired that
J.P. remain at the non-public school in Virginia that he was attending at the time, while the
District preferred that he attend a public school in the District. Id. Thus, neither of the certified
issues addressed truancy or the other matters that the hearing officer’s remedy ultimately
addressed, including whether J.P. required constant daily supervision, his sleep disorder,
personal hygiene, or whether he had a healthy, balanced diet.
The defendant contends that the due process complaint did mention J.P.’s emotional
difficulties, which gave rise to his absenteeism from school. Def.’s Opp’n and Cross-Mot. at 9.
Yet mentioning this general, foundational basis of J.P.’s problems was not sufficient to give the
District notice that the hearing would address J.P.’s truancy, or whether it was advisable to
appoint a service provider to supervise him closely on a daily basis, particularly because these
issues had not been explored before. Rather, these issues should have been raised explicitly in
the complaint. See Corpus Christi Indep. Sch. Dist. v. C.C., 2012 WL 2064846, at *5 (S.D. Tex.
June 7, 2012) (“Courts have also applied Section 1415(f)(3)(B) to limit petitioners from delving
into previously unexplored subject areas not addressed in the due process notice or at the pre-
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hearing conference . . . .” (citing James M. ex rel. Sherry M. v. Hawaii, 803 F. Supp. 2d 1150,
1165 (D. Haw. 2011)); Bd. of Educ. of the Green Local Sch. Dist. v. Redovian, 18 IDELR 1092,
1098 (E.D. Ohio 1992). The complaint provided detailed analysis as to why Extended School
Year services should be provided, and why J.P.’s IEP should be revised to include a more
explicit description of his LRE, as well as a transition plan. See generally Due Process Compl.
Notice [Dckt. #5-5]. The defendant arguing these issues in the complaint with such specificity
demonstrates that other issues involving truancy and a service provider could have been
introduced with the same level of detail; the fact that they were not indicates that they were not
“implicitly” included in the complaint, as the defendant attempts to posit. See Def.’s Mot. at 9.
Indeed, the hearing on decision, itself, noted that the defendant “failed to address this
issue in her request for relief and in the evidence she presented at the due process hearing.”
HOD at 18. Thus, the hearing officer “injecting” an issue that was not raised in the complaint
was “clearly inappropriate,” as she “should [have instead] limit[ed] the issues [she] consider[ed]
in reaching h[er] determination to those that were raised prior to the hearing.” Hawaii Dep’t of
Educ., 2006 WL 1646093, at *4 (internal citation omitted); Redovian, 18 IDELR at 1098
(determining that the hearing officer raising issues that were not brought by the parties was
inappropriate because it did not give the school district notice of such issues).
In addition, the IDEA requires that “a decision made by a hearing officer shall be made
on substantive grounds based on a determination of whether the child received a free appropriate
public education.” 20 U.S.C. § 1415(f)(3)(E)(i). Here, the hearing officer determined that the
District did not deny J.P. a FAPE. HOD at 15-18. Thus, because there was no determination
made at the hearing that DCPS had violated any of J.P.’s rights, as there was no denial of a free
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appropriate publication education, the hearing officer had no substantive basis to order that the
District increase its services by appointing a service provider.
Even if the hearing officer had found that there had indeed been a denial of a FAPE, the
IDEA also requires that an award should be “fact-specific” and “reasonably calculated,” with
some indication that it satisfies the child’s needs. Gill v. District of Columbia, 751 F. Supp. 2d
104, 111-12 (D.D.C. 2010). Yet the hearing officer here had no evidentiary basis to make the
determination that a service provider should be appointed to supervise J.P. on a daily basis. See
Scorah v. District of Columbia, 322 F. Supp. 2d 12, 19 (D.D.C. 2004) (reasoning that the hearing
officer’s conclusion required support by evidence put forward at the hearing). As noted above,
she, herself, indicated that there was no evidence presented at the hearing regarding J.P.’s
truancy, including any evidence that a service provider was essential to curbing it. HOD at 18.
There is also no evidence in the record or in the hearing officer’s findings of fact suggesting that
daily supervision, particularly through a service provider, will resolve J.P.’s emotional
difficulties and depression, the central cause of his inability to perform well in school. See HOD
at 18 (“The evidence at the due process hearing overwhelmingly showed that [J.P.] has
significant emotional problems that interfere with his attendance and participation in school.”).
Thus, as here, an order lacking any factual support for its award “simply cannot be affirmed.”
Friendship Edison Public Charter Sch. Collegiate Campus v. Nesbitt, 532 F. Supp. 2d 121, 125-
26 (D.D.C. 2008); Scorah, 322 F. Supp. 2d at 19 (refusing to uphold hearing officer’s
conclusions that lacked any evidence in the record or factual findings).
Accordingly, because the HOD lacked both procedural and substantive grounds to order
that the District appoint a service provider to supervise J.P., that portion of her decision below is
vacated. The remaining aspects of the hearing officer’s decision will not be disturbed, including
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her determination that J.P. was not denied a FAPE, as they were not challenged and are not on
appeal before this Court. 1
IV. CONCLUSION
For the foregoing reasons, the Court grants the plaintiff’s motion for summary judgment
and denies the defendant’s cross-motion for summary judgment. An Order consistent with this
Memorandum Opinion is separately and contemporaneously issued this 8th day of February,
2013.
RUDOLPH CONTRERAS
United States District Judge
1
The plaintiff also asserts that the hearing officer’s remedy appointing a service provider was not
authorized under the IDEA, and that it fell outside of the scope of her authority. Def.’s Mot. at 14, 18.
Because the remedy is vacated on other grounds, however, the Court need not reach this issue.
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