since been consolidated with this action, DCPS appealed the Hearing Officer's adverse determination.
Thus, putting to one side its somewhat complicated procedural history, this case is actually an appeal from the Hearing Officer's ruling in the Blocks' favor.
Having carefully considered the entire record before the Hearing Officer, the parties' arguments,
and the underlying law, the Court holds that, because DCPS has not shouldered its burden of proving that the Hearing Officer was wrong, it must reimburse the Blocks for the tuition and related services necessary to maintain Stephen's placement at the Chelsea School ("Chelsea") for the 1989-90 school year.
I. Procedural History and Statutory/Regulatory Framework
None of the parties dispute that Stephen's learning disabilities and "multiple secondary deficits" render him a handicapped child within the meaning of the EHA. See 20 U.S.C. § 1401(a)(1). The primary purpose of the EHA is to "assure that all handicapped children have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs." § 1400(c); see Spiegler v. District of Columbia, 275 U.S. App. D.C. 260, 866 F.2d 461, 463 (D.C. Cir. 1989). To that end, the EHA provides that state and local agencies may receive federal funds to assist them in educating handicapped children but only if the agencies comply with specific goals and procedural requirements. See §§ 1412-1415; see also Board of Educ. v. Rowley, 458 U.S. 176, 179, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). Moreover, the EHA contemplates that the free appropriate public education "will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children, but the [EHA] also provides for placement in private schools at public expense where this is not possible." Burlington School Comm. v. Department of Educ., 471 U.S. 359, 369, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985) (citing § 1412(5); 34 C.F.R. §§ 300.132, 300.227, 300.307(b), 300.347 (1984)).
During the 1988-89 school year, pursuant to the EHA, DCPS placed and funded Stephen at the Center School, a private special education facility in Chevy Chase, Maryland. In June 1989 the Center School closed down and notified both the Blocks and DCPS. DCPS responded by preparing a new Individualized Education Plan ("IEP") in July 1989 for the school year beginning in September 1989. See Spiegler, 866 F.2d at 466 ("educational agencies must review and, where appropriate, revise each child's IEP at least annually" (citing § 1414(a)(5))). The IEP -- the " modus operandi " of the EHA -- is "a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." Burlington, 471 U.S. at 368 (citing § 1401(19)).
On August 8, 1989, DCPS proposed placing Stephen at the Buchanan Secondary School ("Buchanan"), a DC public school for learning disabled students.
Objecting to the IEP as inappropriate and incomplete and to the proposed placement at Buchanan, the Blocks exercised their rights under the EHA and on August 16, 1989 requested a due process hearing before an impartial hearing officer. See § 1415(b)(2). The applicable regulations required the formal due process hearing and a decision thereon to be completed by October 2, 1989,
but the hearing was not held and a decision (oral) not made until October 13, 1989, see Administrative Record ("AR") Tab XII, with a written decision filed on October 27, 1989, see id. Tab XIII. Although the Blocks immediately accepted one of the September dates proposed by the Student Hearing Office, see id. Tab VII, the absence of any response in the record by DCPS to the dates that the Blocks and the Student Hearing Office suggested indicates that the significant delay until October 13, 1989, when the due process hearing finally was held, was attributable to DCPS.
At that hearing the Blocks put on evidence to show that DCPS had not completed the necessary evaluations of Stephen and to support their contention that DCPS's new IEP for Stephen, when compared to the previous year's IEP, was incomplete and lacking in several significant related services (such as occupational therapy, speech language therapy, socio-emotional counseling, and adaptive physical education). Therefore, the Hearing Officer ruled that DCPS had not carried its burden of proving that the new IEP and the placement at Buchanan were appropriate. See AR Tabs XII, XIII. However, over the Blocks' objection, the Hearing Officer gave DCPS additional time to evaluate Stephen and complete his IEP. See id.
In November 1989, after DCPS had evaluated Stephen and added the related services listed above, DCPS again proposed Buchanan for the 1989-90 school year. The Blocks again objected, and on November 20, 1989 another due process hearing was held, which was a full-blown adversarial hearing on the merits with direct and cross-examination of several witnesses. See AR Tab XXXV. The Hearing Officer issued his final determination on December 28, 1989, ordering DCPS to maintain and fund Stephen's placement at Chelsea for the 1989-90 school year. However, instead of complying with the Hearing Officer's unequivocal ruling, DCPS brought -- and halfheartedly maintained, see supra note 1 -- its appeal in this Court.
Since this is an appeal from the Hearing Officer's ruling, in the Blocks' favor, the Court first must resolve the threshold issue of what standard of review to apply. Although the standard of review is not as clearly defined as it could be, it is well established that in this kind of case courts do not start with a clean slate. See Rowley, 458 U.S. at 206 ("the provision that a reviewing court base its decision on the 'preponderance of the evidence' [§ 1415(e)(2)] is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review"). However, while de novo review is inappropriate, a court's authority is not so limited that it must accord the hearing officer deference as great as the "clearly erroneous," "abuse of discretion," or "substantial evidence" standards of review. See Spiegler, 866 F.2d at 464-65.
In short, the standard of review is somewhere in the middle with courts giving "due weight" to administrative proceedings, Rowley, 458 U.S. at 206, and applying a "preponderance of the evidence" test, § 1415(e)(2). The United States Court of Appeals for this Circuit has elaborated somewhat on this intermediate standard of review:
Deference to the hearing officer makes sense in a proceeding under the [EHA] for the same reasons that it makes sense in the review of any other agency action--agency expertise, the decision of the political branches (here state and federal) to vest the decision initially in the agency, and the costs imposed on all parties of having still another person redecide the matter from scratch. But the district court's authority under § 1415(e) to supplement the record with new evidence,
as well as Congress's call for a decision based on the "preponderance of the evidence," plainly suggest less deference than is conventional.
We will not try here to capture the appropriate deference in some formula. . . . We think it clear that a party challenging the administrative determination must at least take on the burden of persuading the court that the hearing officer was wrong. . . .