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March 25, 1993

MARC FAGAN, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.


The opinion of the court was delivered by: JOHN H. PRATT

This case is before the Court pursuant to plaintiffs' and defendants' cross motions for summary judgment. For the reasons discussed below, we grant defendants' motion and deny plaintiffs' motion.


 Plaintiffs, Marc Fagan and his parents, brought this action against the District of Columbia Public Schools ("DCPS") and DCPS's Superintendent, Franklin L. Smith, for the expenses of Marc's placement in a private school. They allege that DCPS failed to provide Marc with a proper school placement as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et seq. (1988), *fn1" and inferentially, that their unilateral action was justified.

 The IDEA provides that school districts receiving federal assistance must provide a "free and appropriate public education" to handicapped students. 20 U.S.C. § 1412 (1). Placements must be made pursuant to an "individualized education program" ("IEP") which assesses each student's abilities and needs. 20 U.S.C. § 1414(a)(5). Plaintiffs allege that the IEP prepared for Marc was procedurally defective and that DCPS failed to make an appropriate school placement for Marc.

 The following facts are undisputed. On May 2, 1989, Marc's parents filed a Comprehensive Student Services Form ("CSSF") with DCPS, requesting that Marc be evaluated for special education placement because he had been diagnosed as a "seriously emotionally disturbed" student. The Fagans requested that DCPS approve and finance placement at the Somerset School (now called Parkmont), a small, private school which Marc had attended since September 1988. The school holds small classes of three to eight pupils, and Marc was reportedly functioning well there.

 DCPS held an IEP meeting on July 26, 1989 to assess Marc's special needs, but failed to include the parents in the development of the IEP, as required by the IDEA. See 20 U.S.C. § 1415(b); 34 C.F.R. § 300.345 (1992). Moreover, the Confidential Report, also required for placement, was not signed by all members of the multidisciplinary team or developed with the aid of Marc's current teachers. Nevertheless, despite these procedural defects, DCPS on August 8, 1989 notified the Fagans of its proposed placement at the public South Adolescent Psychoeducational Program. DCPS rejected the Fagans' requested placement at the private Somerset School because a "free appropriate public education" could be provided to Marc at South Adolescent. See Administrative Record ("AR") at 17.

 Plaintiffs challenged DCPS's choice of program in a due process hearing held on October 11, 1989, conducted pursuant to 20 U.S.C. § 1415(b)(2). The Hearing Officer agreed that there were substantial deficiencies in the IEP and the Conference Report and ordered that a new IEP and Report be developed. Without developing a new IEP, however, DCPS proposed yet another placement at the Wilson High School. Again, plaintiffs challenged the proposal in a due process hearing held on January 11, 1990. The Hearing Officer again found that "DCPS could not meet its burden of proof that it proposed an appropriate placement" because the IEP was developed without the participation of the parents. AR at 111.

 In a subsequent written ruling, the Hearing Officer also determined that placement at the Somerset School was inappropriate because "it does not provide special education and related services which meet the standards of the State educational agency." AR at 115. According to the Officer, Somerset School's professional staff did not meet the Board Rules requirement that they be licensed to work with handicapped children. AR at 116 (citing Board Rule 3016.5). The Officer therefore gave the Fagans until February 5, 1990 to inform DCPS whether they wanted to have DCPS "propose a fulltime, special education placement that can meet Marc's academic and emotional needs." AR at 115-116 (emphasis in original).

 Both parties have moved for summary judgment on the Fagans' claims. Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate here since, as mentioned above, there is no genuine issue as to any material fact. The only dispute in this case is whether defendants are obligated by law to reimburse the Fagans for tuition paid to the Somerset School.


 The process delineated by the IDEA is designed to ensure that the local educational agency and the parents work collectively in finding an appropriate placement for their child. Generally, the local agency will try to provide a "free appropriate public education" in a public school. In instances where there is no appropriate public education program available, however, the agency may place the child at a private school at no cost to the parents. See 20 U.S.C. § 1413(a)(4)(B)(i). In such situations, "the State educational agency shall determine whether such schools and facilities meet standards that apply to State and local educational agencies." 20 U.S.C. § 1413(a)(4)(B)(ii).

 The mechanism established by the IDEA therefore leaves parents with several options. The parents may immediately place the child in the public or private school designated by the agency. Alternatively, the parents may contest the placement by seeking review of the agency's IEP in a state administrative due process hearing by an impartial Hearing Officer, 20 U.S.C. § 1415(b)(2), and may further appeal that decision in a State or federal district court. 20 U.S.C. § 1415(e). Finally, the parents may reject the placement entirely and place the child in a private school of their choice without approval by the local agency. If they choose the latter, the agency is not required to pay for the ...

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