Wade v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KOSHI WADE, et al.,
Plaintiffs,
v. Civil Action No. 19-2101 (TJK) (ZMF)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiffs—Koshi Wade and her daughter L.W.—allege that Defendant failed to provide
her with a free and appropriate public education, or FAPE, under the Individuals with Disabilities
Education Act, or IDEA. The Court referred the case to Magistrate Judge Zia M. Faruqui. After
the parties moved for summary judgment, he prepared a Report and Recommendation, or R&R.
The R&R recommends that the Court grant Defendant’s motion for summary judgment and deny
Plaintiffs’ motion. Plaintiffs timely objected. For the reasons explained below, the Court will
adopt the R&R and, as it proposes, enter judgment for Defendant.
I. Background
The Court assumes familiarity with the factual and procedural background of this case. See
ECF No. 23 at 2–6; see also Wade v. District of Columbia, No. 19-cv-2101 (TJK-ZMF), 2021 WL
3507866, at *1–3 (D.D.C. Feb. 11, 2021). In short, Plaintiffs sued Defendant after a hearing officer
determined that Defendant’s proposed individualized education programs (“IEPs”) for L.W.’s
2016–17 and 2017–18 school years satisfied the requirements of the IDEA. The Court referred
this matter to Judge Faruqui for full case management. The parties then moved for summary
judgment. ECF Nos. 14, 15.
In their motion, Plaintiffs argued that the hearing officer erred when he concluded that
(1) L.W.’s IEPs in January 2017 and December 2017 were appropriate for someone with her
capabilities, see ECF No. 14-1 at 14–22; (2) Defendant had provided Plaintiffs prior written notice
of her diploma track placement and graduation, see id. at 3–14; and (3) L.W. was properly
graduated in June 2018, see id. at 22–23. As for the second purported error, Plaintiffs argued that
the lack of prior written notice deprived Wade from knowing about the possibility of a certificate
track, rather than a diploma track, for L.W., which would have allowed her to remain in school
longer. See id. at 5. These arguments track the three claims that Plaintiffs made in their complaint.
ECF No. 1 ¶¶ 57–63.
Judge Faruqui prepared an R&R recommending that the Court grant Defendant’s motion
for summary judgment and deny Plaintiffs’ motion. In summary, Judge Faruqui concluded that
(1) claims related to L.W.’s IEP from January 2017 were not reviewable because they fell beyond
the relevant statute of limitations, and that L.W.’s December 2017 IEP was reasonable, as the
hearing officer concluded, see ECF No. 23 at 8–12; (2) while Defendant had failed to provide
Plaintiffs prior written notice, that failure did not affect the student’s substantive rights, see id. at
14–21; and (3) L.W. was properly graduated in 2018 because she had fulfilled the requirements of
her IEP, and that a claim that her graduation was improper because of her absences from school
had not been raised before the hearing officer, and in any event was meritless, see id. at 13–14.
Plaintiffs objected to the R&R. ECF No. 26.
II. Legal Standard
Federal Rule of Civil Procedure 72(b)(2) provides that once a magistrate judge has entered
his recommended disposition, a party may file specific written objections. The district court “must
determine de novo any part of the magistrate judge’s disposition that has been properly objected
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to.” Fed. R. Civ. P. 72(b)(3); see also Winston & Strawn LLP v. FDIC, 841 F. Supp. 2d 225, 228
(D.D.C. 2012). The district court may then “accept, reject, or modify the recommended
disposition.” Fed. R. Civ. P. 72(b)(3); see also LCvR 72.3(c). When objecting to a report and
recommendation, “the parties may not present new issues or arguments to the district judge; rather,
only those issues that the parties have raised in their objections to the Magistrate Judge’s report
will be reviewed by this court.” M.O. v. District of Columbia, 20 F. Supp. 3d 31, 37 (D.D.C. 2013)
(cleaned up). “And when a party makes conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the Report and Recommendation only for clear error.” Id.(cleaned up).
III. Analysis
To begin, Plaintiffs do not object to Judge Faruqui’s conclusions that claims related to
L.W.’s IEP from January 2017 are not reviewable because they fall beyond the relevant statute of
limitations; that Defendant failed to provide prior written notice of L.W.’s diploma track placement
and graduation; and that any claim that L.W.’s graduation was improper because of her absences
was meritless. Plaintiffs do, however, make several objections to Judge Faruqui’s three main
conclusions in the R&R described above. For the reasons explained below, none has merit.
1. Plaintiffs’ Objections to Judge Faruqui’s Conclusion that Defendant’s
Failure to Provide Prior Written Notice of L.W.’s Diploma Track and
Graduation Did Not Affect L.W.’s Substantive Rights Are Meritless
Plaintiffs first take aim at Judge Faruqui’s conclusion that Defendant’s failure to provide
prior written notice of L.W.’s diploma track and graduation did not affect L.W.’s substantive
rights. See ECF No. 26 at 5–11. Plaintiffs do so by alleging that Wade could not meaningfully
participate in L.W.’s December 2017 IEP meeting because she did not know about the possibility
of a certificate track. In addition, for the first time, Plaintiffs argue that Wade was not represented
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by counsel or an advocate at the December 2017 meeting and that Defendant did not attend the
meeting with an open mind to alternatives to a graduation track.
If plaintiffs are “denied a procedural protection of the IDEA,” the question becomes
whether “that denial . . . constituted a denial of a FAPE to [the student].” J.T. v. District of
Columbia, 496 F. Supp. 3d 190, 203 (D.D.C. 2020), aff’d, No. 20-7105, 2022 WL 126707 (D.C.
Cir. Jan. 11, 2022); see ECF No. 23 at 15–18 (finding Defendant procedurally violated the IDEA
for failing to provide adequate prior written notice). And one way a plaintiff can show that a FAPE
was denied because of a procedural inadequacy is by showing that it “significantly impeded the
parents’ opportunity to participate in the decisionmaking process regarding the provision of a free
appropriate public education to the parents’ child.” 20 U.S.C. § 1415(f)(3)(E)(ii)(II); see B.D. v.
District of Columbia, No. 15-cv-1139 (RJL), 2021 WL 6049879, at *7–8 (D.D.C. Dec. 21, 2021),
appeal dismissed, No. 22-7011, 2022 WL 2919976 (D.C. Cir. June 29, 2022). Still, a
“disagreement with the output of the IEP process does not mean that [plaintiffs] were denied the
chance to provide meaningful input into that process.” Pavelko v. District of Columbia, 288 F.
Supp. 3d 301, 306 (D.D.C. 2018). “The party challenging the administrative determination
‘take[s] on the burden of persuading the court that the hearing officer was wrong.’” Middleton v.
District of Columbia, 312 F. Supp. 3d 113, 129 (D.D.C. 2018) (quoting Kerkam v. McKenzie, 862
F.2d 884, 887 (D.C. Cir. 1988)).
Judge Faruqui considered the entire record and concluded that even though Defendant did
not provide prior written notice of L.W.’s December 2017 diploma track placement and subsequent
graduation, that failure did not affect L.W.’s substantive rights by significantly impeding Wade’s
opportunity to participate in the process. See ECF No. 23 at 19–20. He began by explaining the
ample opportunities Wade had to contribute to, monitor, and challenge L.W.’s IEPs over the years.
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As Judge Faruqui observed, “Wade was no novice to the IEP process,” id. at 19. He noted that
Defendant held several IEP meetings in which Wade participated, often with representation. See
id. at 19–20 (noting Wade’s assistance from counsel and educational advocates); see also id. at 4–
5. Indeed, with the aid of counsel, Wade filed two due process complaints challenging L.W.’s
2016 and 2017 IEPs. A.R. 1467–90, 1491–1508.1 And of course, Wade attended the December
2017 IEP meeting, although that time without counsel or an advocate. See A.R. 10–11. The Court
agrees with the conclusion in the R&R.
Plaintiffs’ objections do not undermine the conclusion that Defendant’s failure to provide
prior written notice did not significantly impede Wade’s opportunity to participate in L.W.’s IEP
process and so did not affect L.W.’s substantive rights.
Plaintiffs argue first that Judge Faruqui erred by not focusing exclusively on the December
2017 IEP meeting in making this determination. But they offer no legal support for the idea that
he had to ignore all that happened beforehand. To be sure, the Supreme Court requires parental
“participation at every stage of the administrative process.” Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 205 (1982). But nothing in the cases Plaintiffs cite
suggest that a court may not consider the entire context of a parent’s dealings with school
administrators about a student’s IEPs to inform its evaluation of whether the parent could
meaningfully participate in a particular step in the process. Indeed, cases suggest the opposite is
true. See, e.g., Cooper v. District of Columbia, 77 F. Supp. 3d 32, 38 (D.D.C. 2014) (finding
procedural violation for specific IEP meeting did not preclude meaningful participation in
student’s education based on an examination of “all of the IEP . . . meetings”). And while Plaintiffs
also note that Wade was unrepresented at the December 2017 IEP meeting, representation is not
1
The Court cites the administrative record as “A.R.” See ECF Nos. 7–12.
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required for parental participation to be meaningful anyway. See J.T., 496 F. Supp. 3d at 203–04
(holding that attendance at IEP meetings showed a parent was not seriously deprived of her rights).
Indeed, the record here is nothing like those cases in which courts have found that a parent
could not meaningfully participate. For example, in Eley v. District of Columbia, No. 11-cv-309
(BAH), 2012 WL 3656471 (D.D.C. Aug. 24, 2012), a parent was wholly excluded from a school’s
update of a student’s IEP, “violat[ing] an important procedural safeguard and seriously impair[ing]
the right of the parent to participate in the process.” Id. at *9. And in another case Plaintiffs
provided, see ECF No. 30, the court found a lack of meaningful participation based on an IEP
meeting that occurred “in the [parents’] absence” right after the school had “unilaterally” made a
placement decision for the student and despite the parent communicating she would “very much
like to attend.” B.D., 2021 WL 6049879, at *7. Nothing of the sort happened here. See ECF No.
23 at 19–20.2
Plaintiffs also assert that Wade was unaware of the certificate track and the opportunity to
advocate for it, so she was denied meaningful participation. See ECF No. 26 at 8–9. And it is this
claim—linked to a lack of prior written notice—that they advanced in their complaint and motion
for summary judgment. ECF No. 1 ¶ 62; ECF No. 14-1 at 3–14. Even assuming that Wade was
unaware of the certificate track, it is not clear that would mean that she was denied meaningful
participation, given the standard set forth in above-cited cases. Still, Judge Faruqui properly
rejected this claim for sound reasons reflected in the record, and so it does not otherwise save
Plaintiffs’ argument that Wade lacked the opportunity to meaningfully participate. See ECF
2
In contrast, A.I. ex rel. Iapalucci v. District of Columbia, 402 F. Supp. 2d 152 (D.D.C. 2005),
presented a situation much like what happened here. In that case, the court found six “technical”
violations of the IDEA but that there was no basis to find the student’s IEP inappropriate, in part
because plaintiffs did “not argue that they were denied the opportunity to examine relevant records,
present complaints, or obtain an independent evaluation of [the student].” Id. at 165–66.
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No. 23 at 17–18. A frequent IEP meeting attendee testified that the certificate track had been
discussed with Plaintiffs, their counsel, and their advocates at “every IEP meeting.” See id.; A.R.
1938. And although this was not enough to cure Defendant’s failure to provide prior written notice,
and there was some contrary evidence in the record, Judge Faruqui properly (in the Court’s view)
deferred to the hearing officer’s crediting of that testimony, which suggests that Wade had been
informed about the certificate track. See ECF No. 23 at 17–18 (citing Wimbish v. District of
Columbia, 381 F. Supp. 3d 22, 29 n.5 (D.D.C. 2019)); A.R. 12. On top of that, over the years,
L.W.’s IEPs made clear that a certificate track was available. The December 2017 IEP, as with all
the ones before it, identified “H.S. Diploma” instead of “H.S. Certificate prior to age 21” or “H.S.
Certificate at age 21” for L.W.’s “Projected Exit Category.” See A.R. 774, 795, 814, 835, 860,
883, 931; see also A.R. 1938 (“[C]ertificate or diploma” “was discussed at every IEP meeting, it’s
on the IEP itself.”).
Plaintiffs also raise a host of other arguments about Defendant’s conduct at the December
2017 IEP meeting, accusing Defendant of not having an “open mind about the possibility of
switching L.W. to the certificate track,” and suggesting that Defendant was not “willing to listen”
to her. ECF No. 26 at 10–11. But these claims were not part of Plaintiffs’ prior written notice
claim in their complaint and in their summary judgment motion before Judge Faruqui. Thus, the
Court need not—and will not—consider them now. M.O., 20 F. Supp. 3d at 37. Regardless, as
Judge Faruqui found, they are meritless. In support, Plaintiffs point out only that the school in
which L.W. was placed offers only a diploma track. See ECF No. 26 at 11. But this is not
tantamount to lacking an “open mind,” and it does not reflect an unwillingness to listen. In the
end, Ms. Wade offers no evidence that she tried to pursue the certificate track for L.W. but was
rebuffed.
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2. Plaintiffs’ Objections to Judge Faruqui’s Conclusion that L.W.’s December
2017 IEP Was Reasonable Are Meritless
Plaintiffs also say that Judge Faruqui erred in several ways when he found that L.W.’s
December 2017 IEP was reasonable and appropriate, as the hearing officer had also found. See
ECF No. 26 at 13–22. Again, the Court agrees with the analysis laid out by Judge Faruqui in the
R&R and overrules Plaintiffs’ objections.
Plaintiffs first argue that Judge Faruqui should not have relied on the hearing officer’s
determinations on witness credibility and should have instead found that the IEP was inappropriate
based on their extrinsic evidence that L.W. could not have earned her good grades in certain high-
level courses. The Court disagrees. Judge Faruqui thoroughly explained why he deferred to the
hearing officer’s determination that the December 2017 IEP was reasonable and why Plaintiffs’
extrinsic evidence was insufficient to change that determination. See ECF No. 23 at 9–12. For
example, Judge Faruqui credited the hearing officer’s finding that “improved attendance over the
summer credibly led to [L.W.’s] improved grades” in part because of testimony from L.W.’s
psychologist. See id. at 12. Judge Faruqui also accounted for why he did not rely on Plaintiffs’
post-graduate testing evidence, explaining that evidence that “post-dates” an IEP is considered
only to the “extent it sheds light on whether the IEP was objectively reasonable at the time it was
promulgated.” Id. (cleaned up). In this case, Judge Faruqui concluded, L.W.’s “contemporaneous
improvement in grades” sufficiently supported the hearing officer’s decision that the December
2017 IEP was objectively reasonable. Id. Again, the Court agrees with this conclusion.
Plaintiffs offer a few other scattershot objections to the R&R’s conclusion that L.W.’s
December 2017 IEP was reasonable, but they can be dismissed even more summarily. They assert
that Judge Faruqui (1) endorsed “shoehorning,” (2) shifted the obligation to provide L.W. a FAPE
to Wade, and (3) blamed Wade for L.W.’s placement at a diploma-only high school under what
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they call the “chutzpah doctrine.” See ECF No. 23 at 10; ECF No. 26 at 19–20. First, shoehorning
is a “form of ‘predetermination’ where a school district develops a student’s IEP based on [a]
school’s capabilities.” ECF No. 26 at 20 (quoting Report & Recommendation at 16, Shipley v.
District of Columbia, No. 18-cv-2550 (RMM) (D.D.C. Mar. 6, 2020), ECF No. 32). And there is
no evidence of shoehorning here because L.W. had been on the diploma track at another high
school before she enrolled at the diploma-only school from which she graduated (as well as before
the December 2017 IEP). See ECF No. 23 at 10. Second, Judge Faruqui did note that Wade’s
objection to the December 2017 IEP’s continuation of a diploma track for L.W. was undermined
by her own choice to enroll L.W. in a diploma-only high school in August 2017. ECF No. 23 at
10. But nothing about that observation either shifted the burden of providing a FAPE or otherwise
blamed Wade. Both claims appear to stem from Plaintiffs’ assertion that Judge Faruqui found that
Wade did not know that any alternatives to graduation existed. ECF No. 26 at 20–22. But that is
not at all what Judge Faruqui found. As described above, he properly deferred to the hearing
officer’s determination that a frequent IEP meeting attendee had credibly testified that the
certificate track had been discussed with Plaintiffs, their counsel, and their advocates at “every
IEP meeting.” See ECF No. 23 at 18; A.R. 1938. Even so, neither the R&R’s conclusion that the
December 2017 IEP was reasonable, nor the Court’s adoption of that conclusion, turn on this
observation.3
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Plaintiffs also object to Judge Faruqui, in analyzing whether L.W.’s December 2017 IEP was
reasonable, characterizing their claim as asking for a specific educational outcome rather than
“more” or “further educational benefit.” ECF No. 26 at 23. Of course, while schools must provide
a FAPE, they do not guarantee “any particular outcome or any particular level of academic
success.” Holman v. District of Columbia, 153 F. Supp. 3d 386, 389–90 (D.D.C. 2016). The Court
understands this passage as reflecting Judge Faruqui’s surmise about the true source of Plaintiffs’
dissatisfaction with L.W.’s education, as opposed to a literal description of their legal claims. In
any event, the R&R’s analysis of the propriety of L.W.’s December 2017 IEP does not turn on this
characterization of their chosen relief.
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3. Plaintiffs’ Objection to the Legal Standard Employed by Judge Faruqui to
Conclude that Defendant’s Graduation of L.W. Was Appropriate Is Meritless
Finally, Plaintiffs contend that Judge Faruqui used an “incorrect and circular” standard to
conclude that L.W.’s graduation was appropriate. ECF No. 26 at 12. He did not. As Plaintiffs
themselves note, to determine whether an education placement is appropriate, “courts apply the
same analysis used when evaluating challenges to a student’s IEP.” Id. Judge Faruqui concluded
that Defendant’s “subsequent graduation of L.W. was an appropriate placement because L.W.
fulfilled the requirements set forth in her IEP.” ECF No. 23 at 13 (cleaned up). The Court
understands this sentence to mean only that, for all the reasons Judge Faruqui had already
concluded that L.W.’s December 2017 IEP was appropriate, her graduation upon fulfilling that
IEP was also appropriate.
IV. Conclusion
For all the above reasons, and upon consideration of the entire record, including the R&R
and Plaintiffs’ objections to specific portions of the R&R, the Court will adopt in its entirety Judge
Faruqui’s R&R, grant Defendant’s cross-motion for summary judgment, and deny Plaintiffs’
motion for summary judgment. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: December 7, 2022
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