United States District Court for the District of Columbia
March 16, 2004.
Mathew Reid, et. al., Plaintiffs,
District of Columbia, et. al. Defendants
The opinion of the court was delivered by: REGGIE WALTON, District Judge
The instant lawsuit concerns the education of a young child, Mathew
Reid, who is enrolled in the District of Columbia Public Schools ("DCPS")
system. Mathew and his mother Gwendolyn Reid (collectively the
"plaintiffs"), brought this action against the District of Columbia and
Elfreda W. Massie, in her official capacity as Interim Superintendent of
the DCPS (collectively the "defendants").*fn1 Specifically, plaintiffs
challenge a hearing officer's decision ("HOD") which concluded (1) that
an award of 810 hours of compensatory education services was sufficient
to compensate Mathew for the DCPS' prior denial of a free appropriate
public education ("FAPE") to him; (2) that the DCPS denied Mathew a FAPE
for only four and a half years; and (3) that the Individualized Education
Program ("IEP") team may terminate Mathew's compensatory education
services if they determine that he would no longer benefit from such
services. Upon consideration of the entire record, the Court concludes
that plaintiffs have failed to establish that the HOD must be reversed,
and accordingly, the Court will grant defendants' motion for summary
judgment and deny plaintiffs' motion for summary judgment.
Plaintiff Mathew Reid was born on September 18, 1988. Plaintiffs'
Statement of Material Facts as to Which There is No Genuine Issue ("Pls.'
Stmt") ¶ 2. On June 6, 1998, Mathew was identified as a child with
learning disabilities. Defendants' Statement of Material Facts as to
Which There is No Genuine Issue, and Response to Plaintiffs' Statement of
Material Facts ("Defs.' Stmt") ¶ 4. Specifically, Mathew has been
diagnosed as having Attention Deficit Hyperactive Disorder ("ADHD") and a
learning disability. Pls.' Stmt ¶ 13. Because of Mathew's
disabilities, he is eligible for special education services pursuant to
the Individuals with Disabilities Education Act ("IDEA" or "the Act"),
20 U.S.C. § 1400 et seq. (2000). The dispute in this matter centers
around exactly when Mathew's disabilities manifested themselves and
should have been recognized and addressed by DCPS officials. In
addition, plaintiffs challenge the remedy awarded to them for defendants'
denial of a FAPE to Mathew.
Mathew has attended DCPS facilities for all school years relevant to
this action except during the 1996-97 school year, when he attended
school in California. Pls.' Stmt. ¶ 2; Memorandum of Points and
Authorities in Support of Plaintiffs' Motion for Summary Judgment ("Pls.'
Mem.") at 9. In the fall of 1995, when Mathew was in the second grade,
Ms. Reid asked the school counselor for help because she was concerned
that Mathew was having problems learning. Id. ¶ 6. During the spring
of 1996, Mathew's teacher met with Ms. Reid and the school principal to
discuss Mathew's behavior, academic, and attention problems. Id. ¶
8; Plaintiffs' Motion for Summary Judgment ("Pls.' Mot."), Exhibit
("Ex.") 1, Hearing Officer Determination ("HOD") at 6. At the end of the
1995-96 school year, Mathew was considered for retention in the second
grade but because retention at the second grade level was a parental
decision, Mathew was promoted to the third grade. Id. at 4; Pls.' Stmt.
¶ 7. In June 1998, Mathew was identified as a child with
disabilities, and at the conclusion of the 1998-99 school year he was
retained in the fourth grade. Pls.' Mot., Ex. 1, HOD at 2, 4. Once he was
identified as a child with disabilities, an Individualized Education
Program ("IEP") was developed and provided to Mathew. Id. On July 27,
2001, a hearing officer determined that Mathew had been "underserved
since being identified as a child with a disability . . . and placed him
on a full-time special education program." Id. at 6. On December 18,
2001, Ms. Reid, through counsel, filed a request for a due process
hearing. Id. at 2. Specifically, Ms. Reid complained about the DCPS'
failure to "find"*fn2 Mathew's disabilities prior to June 1998, and
requested compensatory education for Mathew for the 1992-93, 1993-94,
1994-95, 1995-96, 1996-97, 1997-98, 1998-99, 1999-2000, and 2000-01
school years. Id. at 2. Plaintiffs subsequently withdrew their claims for
compensatory education for school years 1992-93, 1993-94, 1994-95, and
1996-97. Id. Their due process hearing was held on April 11, 2002, and
May 14, 2002. Id. at 1.
B. The Evidence Presented at the Due Process Hearing
The hearing officer heard testimony from plaintiffs' three experts:
Dr. Susan Van Ost, a psychologist with experience in assessing children
with disabilities; Dr. Carol A. Kamara, a Speech and Language
pathologist; and Dr. Sheila C. Isman, an educational consultant who
provides services to parents who have children with disabilities. Id. at
3-4. All three experts testified that Mathew's disabilities should have
manifested themselves in the early stage of his
school enrollment and should have been identified by a qualified
teacher. Id. However, because all the testimony was based on records and
retrospective evaluations of Mathew, none of the experts could specify
the precise time when Mathew's disabilities actually manifested
themselves. Id. Dr. Ost testified that, according to the American
Psychiatric Association, Mathew's combined ADHD and learning disabilities
should have manifested the symptoms of the disorder by the age of seven.
Id. Thus, according to Dr. Ost, Mathew's teachers should have suspected
his disabilities as early as the second grade. Id. Dr. Kamara testified
that given her understanding of Mathew's speech and language impairment
as of April 8, 2002, the impairment should have manifested itself in the
early stages of his school enrollment and been observed by a qualified
teacher. Id. at 4. As proof of when the disabilities manifested
themselves, Dr. Kamara pointed out that Mathew's third grade report card
from California and his performance on his May 1997 Stanford 9 test
results "indicated a speech and language deficit." Id. Finally, Dr.
Iseman testified that Mathew should have been evaluated for special
education services when his teacher discussed his possible retention in
the second grade at the conclusion of the 1995-96 school year. Id. In
addition, according to Dr. Iseman, Mathew's third grade report card and
test results from California should have strongly suggested that Mathew
had learning disabilities. Id.
The DCPS did not call any witnesses to testify on its behalf. Id. at
3. Instead, the DCPS submitted two pieces of documentary evidence: a copy
of a September 1, 2000, Mediation Agreement and a copy of a April 4,
2002, proposed settlement agreement that was entered into between
plaintiffs and the DCPS.*fn3
C. The Hearing Officer's Decision
In a decision issued July 15, 2002, the hearing officer made three
findings of fact that are relevant to the current proceeding. First, he
found that by failing to "find" that Mathew was in need of special
education services for the 1998-99, 1999-2000, and 2000-01 school years,
the DCPS denied Mathew a FAPE. Id. at 6. Second, he concluded that
Mathew's "disabilities manifested themselves and should have been `found'
and evaluated as early as midway through the 1995-96 school year." Id.
Finally, the hearing officer found that "[b]y failing to `find' [that]
Mathew [needed special education services] until midway through the
1995-96 School Year and during the 1997-98 School Year, [the] DCPS denied
[a] FAPE to Mathew." Id. at 5-6.*fn4 The hearing officer ordered that
Mathew receive one hour of compensatory education services for each day
his FAPE had been denied as directed by Mathew's IEP team, for a total of
810 hours, in addition to the special education and related services
already provided to Mathew pursuant to his IEP that was already in
effect. Id. at 7. The order also allowed for periodic assessments of
Mathew's progress by his IEP team and permits the IEP team to reduce or
discontinue Mathew's compensatory education services if it determines
that Mathew no longer needs or is no longer benefitting from the
Plaintiffs argue that based on the evidence they presented at the
hearing, Mathew should have been identified as a child with disabilities
at the beginning of the 1995-96 school year rather than midway through
that school year; that Mathew is entitled to one day of compensatory
education services for each day he was denied a FAPE; and that the IEP
team should not have been given authority to reduce or terminate Mathew's
compensatory education services. Pls.' Mem. at 1. Defendants request that
the hearing officer's determinations be affirmed on the ground there is
no legal basis for overturning the hearing officer's decision. Memorandum
of Points and Authorities is [sic] Support of Defendants' Motion for
Summary Judgment and in Opposition to Plaintiffs' Motion for Summary
Judgment ("Defs.' Mem.") at 4.
A. Standard of Review
1. Summary Judgment
In reviewing the parties' motions for summary judgment, the Court must
determine that there exists "no genuine issue as to any material fact and
. . . [that] the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(c). The Court must review the facts in the light
most favorable to the non-moving party in making this determination.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In making its
determination, the Court evaluates the "pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any. . . ." that are presented to the Court. Fed.R.Civ.P.
56(c).*fn5 Once a motion for summary judgment has been properly made and
supported by evidence, the non-moving party must then
demonstrate the existence of a genuine issue of material fact for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citing Fed.R.Civ.P. 56(e)). The existence of "some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact." Anderson v. Libertv Lobby. Inc.,
477 U.S. 242, 247-48 (1986). A fact is material if it "might affect the
outcome of the suit under the governing law." Id. at 248. Summary
judgment is mandated if a party fails to establish an element essential
to that party's case and on which that party will have the burden of
proof at trial. Celotex Corp., 477 U.S. at 322.
2. Judicial Review Pursuant to the IDEA
The IDEA guarantees to children the right to receive a free,
individually appropriate, public education. 20 U.S.C. § 1400(d)(1)(A).
A free individually appropriate public education or a FAPE "consists of
educational instruction specially designed to meet the unique needs of
the handicapped child, supported by such services as are necessary to
permit the child `to benefit' from the instruction." See Board of Educ.
Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 188-89
(1982). In reviewing challenges to a hearing officer's administrative
decision made pursuant to the IDEA, courts must review the records of the
administrative proceedings and may hear additional evidence at the
request of a party. 20 U.S.C. § 1415(I)(2)(B). Courts have
interpreted the Act's requirement that a reviewing court in an IDEA case
"shall receive the records of the administrative proceedings[,]"
20 U.S.C. § 1415(i)(2)(B)(i), as requiring courts to give "due
weight" to the administrative proceedings. Rowley, 458 U.S. at 206;
Leonard v. McKenzie, 869 F.2d 1558, 1561 (D.C. Cir. 1989); Kerkam v.
McKenzie, 862 F.2d 884, 887
(D.C. Cir. 1988). As already indicated, a court is also free to consider
additional evidence at the request of a party,
20 U.S.C. § 1415(i)(2)(B)(ii), and although it must give deference to
the findings of the hearing officer, "less deference than is
conventional" is required. Kerkam, 862 F.2d at 887. In determining
whether to reverse a hearing officer's decision, the Court must engage in
a two-step analysis. Rowley, 458 U.S. at 206. First, it must determine
whether the DCPS has complied with the procedural requirements of the
IDEA.*fn6 Id. Second, it must determine whether the "individualized
educational program developed through the Act's procedures [is]
reasonably calculated to enable the child to receive educational
benefits[.]" Id. at 207. Once a determination is made that "these
requirements are met, [the Court must conclude that] the State has
complied with the obligations imposed by Congress and . . . can require
no more." Id. However, "a party challenging [an] administrative
determination must at least take on the burden of persuading the court
that the hearing officer was wrong. . . ." Id. In the final analysis, the
Court must "bas[e] its decision on the preponderance of the evidence [and
must] grant such relief as the court determines is appropriate."
20 U.S.C. § 1415(i)(2)(B)(iii). The Court must remain mindful that
"the provision that a reviewing court base its decision on the
`preponderance of the evidence' is by no means an invitation to the
court to substitute [its] own notions of sound educational policy for
those of the school authorities which [it] review[s]." Rowley, 458 U.S.
B. Plaintiffs' Challenges to the Hearing Officer's Decision*fn7
As noted above, plaintiffs challenge three aspects of the hearing
officer's decision. Each of these challenges will be addressed
1. When Should Mathew Have Been "Found" in Need of Special Education
Services by the DCPS?
Plaintiffs contend that the DCPS began denying Mathew a FAPE at the
beginning of the 1995-96 school year, not midway through that school year
as determined by the hearing officer. Pls.' Mem. at 10. Plaintiffs argue
that the "hearing officer does not explain the basis for his mid year
`finding of fact' and . . . [they] submit it is inconsistent with
evidence summarized earlier in the [hearing officer's] Determination. .
. ." Id.
The IDEA places an affirmative duty on states to identify, locate, and
evaluate all children with disabilities residing within their boundaries.
20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.125 (2000). This duty,
called the "child find" duty, is triggered when the school has reason to
suspect a child has a disability, and has reason to suspect that special
education services may be needed to address the disability. Dep't of
Educ., State of Hawaii v. Cari Rae S., 158 F. Supp.2d 1190, 1194
(D. Haw. 2001) (citations omitted). The IDEA specifically states that an
educational agency shall be deemed to have knowledge
that a child has a disability if
(i) the parent of the child has expressed concern
in writing (unless the parent is illiterate or has
a disability that prevents compliance with the
requirements contained in this clause) to personnel of
the appropriate educational agency that the child is
in need of special education and related services;
(ii) the behavior or performance of the child
demonstrates the need for such services;
(iii) the parent has requested an evaluation of the
child pursuant to section 1414 of this title; or (iv)
the teacher of the child, or other personnel of the
local educational agency, has expressed concern about
the behavior or performance of the child to the
director of special education of such agency or to
other personnel of the agency.
20 U.S.C. § 1415(k)(8)(B)(i-iv).
Plaintiff argues that the evidence presented at the due process hearing
demonstrated that the defendants should have recognized and then
evaluated Mathew to assess his learning disabilities at the beginning of
the 1995-96 school year. Pls.' Mem. at 10. However, the Court cannot
agree that the evidence in the record supports that position. In Cari Rae
S., 158 F. Supp.2d at 1195, for example, the Court found "ample" evidence
in the record indicating that the school was on notice of the student's
disabilities. This evidence consisted of the student's mother's request
for tutoring, as well as other "warning signs" including: the child's
class ranking (she was ranked at the bottom of her class), her attendance
record (she was absent seventy-nine times during one academic year),
behavioral referrals and disciplinary actions by her teachers, and
symptoms of drug use. Id. Here, the evidence was far from "ample." The
evidence in the record consists of the testimony of three expert
witnesses who all evaluated Mathew after his learning disability
diagnosis was made and three specific instances when Ms. Reid had contact
with school officials regarding Mathew. The testimony from the experts
did not definitively establish that Mathew's disabilities should have
been detected at the time alleged by the plaintiffs, as all the witnesses
did not evaluate Mathew until at least four years after that point in
time. And it is significant that all of the witnesses merely testified
that Mathew's disabilities "should" have manifested themselves
during the 1995-96 school year. Pls.' Mot, Ex. 1, HOD at 3-4. Regarding
Ms. Reid's contact with school officials, two of those encounters clearly
do not give rise to a finding that Mathew's disabilities should have been
recognized at the beginning of the 1995-96 school year. The retention
discussion between the school officials and Ms. Reid took place at the
end of that school year and in no way establishes that Mathew's
disabilities had manifested themselves nine months earlier. Pls.' Stmt
¶ 7. Ms. Reid's discussion with Mathew's teacher and the principal
concerning Mathew's lack of progress, possible retainment, and behavioral
problems did not occur until the spring of 1996, or near the end of the
school year. Id. ¶ 8; Pls.' Mot., Ex. A, HOD at 6. Again, this
discussion does not prove that Mathew's disabilities manifested
themselves at the beginning of the 1995-96 school year. Thus, because
neither of these two discussions occurred during the fall of the 1995-96
school year, neither supports plaintiffs' argument that school officials
should have identified Mathew's disabilities at that time.
The only remaining question then is whether Ms. Reid's request for help
for Mathew during the fall of 1995-96 school year should have put
defendants on notice of Mathew's disabilities, triggering the "child
find" duty. Id. ¶ 8. The Court concludes that this oral request was
not alone sufficient to trigger this duty. For example, the student's
mother in W.B. v. Matula, 67 F.3d 484, 488 (3d Cir. 1995), met with the
principal of the school to discuss concerns about her child's behavioral
problems, and also met with her child's teacher and other school officials
to discuss his behavioral and academic problems. Id. However, in addition
to these meetings, the child's teacher reported to W.B. and other school
officials a variety of disruptive classroom behaviors committed by the
child, she informed W.B. that her child might have ADHD, and W.B.
specifically asked the school to refer her child for an evaluation for
special education services.
Id. All of this evidence led the Court to conclude that the defendant
"had an ongoing obligation to discharge the `child find' duty." Id. at
501. Here, while Ms. Reid specifically asked for help from school
officials for Mathew's behavioral and academic problems, she did not
fulfill the statutory requirements of 20 U.S.C. § 1415(k)(8)(B)(i-iv).
Specifically, there is no evidence in the record, nor do plaintiffs assert
that Ms. Reid expressly requested an evaluation. Id. §
1415(k)(8)(B)(iii). In addition, unlike what occurred Matula, there is no
evidence that Mathew's teacher expressed concern about his performance or
behavior to agency personnel. Id. § 1415(k)(8)(B)(iv).
Similarly, in Alex K. v. Wissahickon Sch. Dist., No. CIV.A.03-854, 2004
WL 286871, at *8 (E.D. Pa. Feb. 12, 2004), the Court held that
expressions of concern conveyed by parents to school officials about
their child's educational performance did not trigger the "child find"
duty. There, prior to enrolling the plaintiff child in a private school,
the plaintiff's parents met with a public school principal. Id. at 3.
During this meeting the plaintiff's parents informed the principal that
the plaintiff might have learning difficulties and they were looking into
potential placements for plaintiff. Id. The principal informed plaintiff's
parents that if they would like the school district to evaluate the
plaintiff and consider him for special education, they should put the
request in writing. Id. Plaintiff's parents then enrolled him in private
school in 1997, and subsequently requested tuition reimbursement and
compensatory education from the school district in 2001. Id. Plaintiff
sued the school district for failing to "find" and evaluate the child
plaintiff for special education services for the five years following
their revelation to the principal that plaintiff had learning
disabilities. Id. at 1. The Court held that the discussion between the
parents and the principal alone was insufficient to trigger the "child
find" duty and therefore the
school district was held not to have been on notice of the child's
disability until the parents requested an evaluation in writing at the
beginning of the 2001 school year. Id. at 8. See also Evans v. Dist.
Number 17 of Douglas County, Neb., 841 F.2d 824, 828 (8th Cir. 1988)
(parent's expression of concern did not trigger the procedural
requirements of the IDEA which requires written notice to initiate a
change of placement). Here, Ms. Reid did not express her concern about
Mathew's performance in writing or specifically request an evaluation
pursuant to § 1414 as the statute requires.
20 U.S.C. § 1415(k)(8)(B)(i), (iii). These findings, coupled with the
plaintiffs' experts' inability to definitively pinpoint when Mathew's
disabilities would have manifested themselves leads the Court to the
conclusion that the evidence in the record does not support plaintiffs'
assertion that defendants were on notice of Mathew's disabilities at the
beginning of the 1995-96 school year. Thus, the Court cannot disturb the
hearing officer's determination that the DCPS should have found that
Mathew was in need of special education services midway through the
1995-96 school year.
Plaintiffs also argue that because defendants failed to present any
evidence at the due process hearing, the hearing officer erred in not
directing a finding in plaintiffs' favor on the question of whether a
FAPE was provided to Mathew during the first half of the 1995-96 school
year. Plaintiffs' Opposition to Defendants' Memorandum of Points and
Authorities in Support of Defendants' Motion for Summary Judgment and in
Reply to Defendants' Opposition to Plaintiffs' Motion for Summary
Judgment ("Pls.' Opp'n") at 15. This argument misconstrues the nature of
compensatory education. Compensatory education is an equitable remedy,
Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th
Cir. 1994), and equitable remedies are flexible and capable of adjustment
and reconciliation between the public interest and private
needs. California v. American Stores Co., 495 U.S. 271, 284 (1990).
Therefore, the hearing officer was obligated to provide an equitable
remedy for Mathew and not mechanically direct a verdict in his favor
solely because the defendants failed to present any evidence. Here, the
hearing officer considered the testimony and evidence submitted to him,
which included the testimony of plaintiffs' experts, and determined that
the denial of a FAPE did not commence until the middle of the 1995-96
school year. Plaintiffs acknowledge that there was no requirement that
the hearing officer credit plaintiffs' experts' testimony, Pls.' Mem. at
31, notably in light of the fact that the evidence they presented was not
conclusive. Therefore, the Court affirms the hearing officer's
determination that the DCPS did not fail to find that Mathew was in need
of special education services until midway through the 1995-96 school
2. Whether the Remedy Awarded by the Hearing Officer was Appropriate?
Plaintiffs challenge the hearing officer's remedy that was awarded for
the denial of Mathew's FAPE. In general, compensatory education has been
determined to be an appropriate remedy once it has been shown that a
child is entitled to coverage under the Act and the child was denied that
coverage. Harris v. District of Columbia, No. CIV.A.91-1660, 1992 WL
205103, at *3 (D.D.C. Aug. 6, 1992). The hearing officer ordered the DCPS
to compensate Mathew for its denial of a FAPE with one hour of
compensatory education for every school day during the four and a half
year period of denial, for a total of 810 hours.*fn8 Pls.' Mot, Ex. 1,
HOD at 7. Plaintiffs argue that Mathew should have been awarded one day
of compensatory education for each day he was denied a FAPE. Pls.' Mem.
at 1. However, the Court finds that plaintiffs have failed to
establish that they are entitled to this relief for several reasons.
Plaintiffs ask the Court to apply an incorrect legal standard in
assessing the hearing officer's award. Plaintiffs appear to be asking the
Court to apply something akin to a potential maximizing standard, rather
than the "some educational benefit" standard. Pls.' Opp'n. at 14.
Plaintiffs state that "compensatory education should . . . be provided in
a form that allows it to be used to assure that Mathew Reid can make up
for what he lost, to reach the levels that he would have reached but for
defendants' failure to provide [a] FAPE in the first instance." Id.
Plaintiffs argue that the hearing officer should have based his decision
on what level of compensatory education would help Mathew achieve the
level of attainment he would have achieved if a FAPE had not been
denied. Id. However, as required by the Supreme Court in Rowley, 458
U.S. at 195, 201, the District of Columbia Circuit applied the "some
educational benefit" standard in Kerham, when it reversed a district
court decision that applied a potential maximizing standard. 862 F.2d at
889. There, the parents of a severely disabled child objected to a DCPS
decision to place the child into a day program located in the District of
Columbia rather than leaving him at a private school and residential
program in the area from which plaintiffs had recently moved. Id. at 886.
The parents obtained a due process hearing at which the hearing officer
ultimately found that the DCPS day program placement combined with
additional special education services was appropriate. Id. The parents
appealed and the district court reversed the hearing officer's decision
despite not finding fault with the testimony presented during the due
process hearing. Id. at 888. The Circuit Court stated:
The [district] court's unspoken premise appears to
have been that since [the child] was making progress
at [the residential program] it followed that any
inferior placement was not appropriate. Appealing as
that view must be, it is inconsistent with the "some
educational benefit" standard of Rowley and is
of reliance on the potential-maximizing standard that
Id. at 889; see also Angevine. 959 F.2d at 295 (reversing a district
court decision because the district court improperly shifted the burden
to the hearing officer and applied a potential maximizing standard).
The some educational benefit standard requires that a disabled child be
provided with a "basic floor of opportunity." Rowley, 458 U.S. at
200-201. In determining what constitutes a "basic floor of opportunity,"
the Supreme Court explicitly rejected a bright-line rule but instead
required courts to make that determination on a case-by-case basis,
taking into account the particular needs of the disabled child. Id. at
201. The Court's concern here is the lack of any evidence concerning why
Mathew's needs are not now being addressed and why additional special
educational services are necessary to ensure that Mathew is achieving
some educational benefit. Plaintiffs' position is that Mathew's current
needs are relevant only to the question of what defendants must provide
now and that compensatory education should depend on what he has already
been denied. Pls.' Opp'n at 14. Therefore, plaintiffs opine that the DCPS
"owes" Mathew five yeas of compensatory education. Id. However,
plaintiffs fail to offer proof regarding why the hearing officer's award
is "inappropriate" to achieve what is required by the Act, i.e., a basic
floor of opportunity and "access to specialized instruction and related
services which are individually designed to provide educational benefit
to [Mathew]." Rowley, 458 U.S. at 201.
Under the IDEA, when a public school system fails to provide adequate
services to a handicapped child, the court "shall grant such relief as
the court determines is appropriate." 20 U.S.C. § 1439(a)(1). The
reviewing court has broad discretion in determining what is
appropriate based on the circumstances of each case. School Committee of
Burlington v. Massachusetts Department of Education, 471 U.S. 359, 369
(1985). While it is true that there is no limit to relief under the
IDEA, see Matula, 67 F.3d at 501, "[t]here is [also] no obligation to
provide . . . day-for-day compensation for time missed." Puyallup, 31 F.3d
at 1497. While plaintiffs acknowledge that there is no set framework to
guide the Court in determining what amount of compensatory education is
appropriate, Pls.' Opp'n at 2, they state that "under the circumstances of
this case an award of five years compensatory education is appropriate to
make up for five years of [a] FAPE denied to Mathew Reid." Id. at 3.
However, as noted above, plaintiffs fail to justify this assertion with
facts regarding the specific circumstances of this case. Rather,
plaintiffs argue that because Mathew is performing below grade level a
greater award of compensatory education is required. Id. at 14. However,
plaintiffs fail to specifically explain why day for day compensation is
the only way to remedy Mathew's situation. Plaintiffs state that a
child, like Mathew, who has fallen behind requires the equivalent amount
of time to "unlearn" bad habits picked up or he will never be able to get
back what was lost. Pls.' Mem. at 26-27. Plaintiffs rely on three cases,
which are not binding on this Court, as support for their position that
the appropriate remedy for Mathew is day-for-day compensatory education.
The Court is not persuaded that these cases call for that relief in this
In Hammond v. District of Columbia, No. CIV.A.99-1723, 2001 WL
34360429, at *1 (D.D.C. Mar. 1, 2001), the Court primarily addressed the
question of whether a claim for relief under the IDEA was barred by the
three-year statute of limitations of D.C. Code § 12-301(8) (2001). In
finding that the claim was not time barred and relief was appropriate,
the Court made a lump sum compensatory education award equal to the time
a FAPE was denied. Id. at *6.
However, the Court specifically stated that the reason it granted such
relief was, at least in part, based on the fact that the defendants
"voiced no objection to [p]laintiffs' request for compensatory education
. . . [and] [accordingly], the Court awarded plaintiffs a lump sum
grant." Id. Here, the defendants have voiced an objection to the specific
relief requested by the plaintiffs.
Similarly, in Harris, 1992 WL 205103, at *4, the Court did not explain
why it granted a lump sum of compensatory education equivalent to the
amount of time a FAPE had been denied. There, the hearing officer held
that he was without valid statutory authority to award the plaintiffs
compensatory education. Id. at *1. Rejecting the hearing officer's
conclusion, the Court held that hearing officers have such authority when
a FAPE has been denied. Id. at *3. The defendants had argued that
compensatory education was not available to the plaintiff because it was
only available when a "gross violation" of the IDEA is established, and
that the issue was not ripe for adjudication because it was unclear that
the plaintiff would actually need compensatory education. Id. at *3-4.
Because they did not believe an award of compensatory education could be
granted at all, the defendants in Harris did not address what amount of
compensatory education they thought would be appropriate. The Court
awarded the plaintiff compensatory education in the amount requested
without explaining why that amount was appropriate. Id. Here, what is at
issue is whether the actual amount of compensatory education granted is
appropriate, not whether compensatory education is appropriate at all.
Therefore, Harris is not useful to the analysis the Court is required to
conduct in this case.
The third case plaintiffs rely on is also distinguishable from this
case. In Everett v. Santa Barbara High Sch. Dist., Nos. 00-55647,
00-56338, 2002 WL 44264, at *1 (9th Cir. Jan. 11,
2002), the Ninth Circuit affirmed the district court's decision granting
compensatory education equal to the time a FAPE was denied. There,
although the plaintiff was not seriously emotionally disturbed, the
school district had placed the plaintiff in a class for seriously
emotionally disturbed students. Id. at *1. The school district also
failed to provide the plaintiff with "educational benefit . . . "while he
"was on home/hospital instruction[,]" by providing a regular teacher in
lieu of a special education teacher during part of that period of
instruction, and failing to provide a teacher at all for two months
during that period. Id. The Everett Court specifically stated that "this
failure to provide any special education instruction for a significant
segment of the year compels the conclusion that the services were not
reasonably calculated to provide educational benefit." Id. (emphasis
added). The facts before the Everett Court are distinctly different from
the facts currently before this Court. The school district in Everett
placed the student in a setting that was grossly inappropriate, provided
him with someone unqualified to provide special education services, and
then denied him education services altogether. Id. Here, Mathew has been
receiving special education services for most of the five year period at
issue, since he was diagnosed at the end of the 1997-98 school year.
Pls.' Mot., Ex. 1, HOD at 2. While the hearing officer determined that
Mathew was underserved after being diagnosed and placed Mathew on a
full-time special education program, id. at 6, plaintiffs do not provide
evidence that the "underserved" determination amounted essentially to the
total denial of a FAPE as was the case in Everett.
The Court finds Wingfield v. District of Columbia, No. 00-121, slip
op. at 1 (D.D.C. Dec. 7, 2000), more analogous to the present situation.
In Wingfield, the plaintiff child and his mother brought an action
against the DCPS for failing to provide the child with special education
services. Id. As in this case, whether plaintiff was entitled to the
services, whether those services were in fact denied, and the fact that
the child was entitled to some compensatory education were not in
dispute. Id. at 2. And like the situation here, the parties disagreed on
how much compensatory education was an appropriate remedy. Id. The child
in Wingfield was denied a total of 320 hours of special education
services and the parents requested one hour for every hour the child was
denied special education services. Id. at 9-10. The plaintiffs relied on
the Harris decision, 1992 WL 205103, among other cases, as support for
their argument that the child should be awarded an amount of compensatory
education in an amount commensurate with the time he was denied a FAPE.
Id. at 10-11. The Court explicitly rejected the plaintiffs' position,
stating that while "[i]n some cases an hour-for-hour remedy may be
appropriate . . . [the] Court must weigh the evidence, the administrative
record, and the hearing officer's decision, and craft a remedy
appropriate for this case." Id. at 11 (emphasis added). In Crafting "the
best possible remedy," the Court examined the special education services
currently being provided to the child and the recommendations of
officials as to what would be most beneficial to the child. Id. at 8,
12. The Court found that because the child was already receiving a large
amount of special education services pursuant to his current IEP, less
than hour-for-hour compensation was appropriate to achieve an educational
benefit. Id. at 9, 12-13. Based on the amount of special education the
child was receiving, the Court awarded forty hours of additional special
education services. Id. at 13. Like the child plaintiff in Wingfield,
Mathew is currently receiving special education services because he is
enrolled in a full time special education program. Pls.' Mot., Ex. 1, HOD
at 2. And plaintiffs, who have the burden in this case, have failed to
provide the Court with a copy of Mathew's current IEP and therefore the
Court is unable
to assess whether the services he is already receiving are inadequate to
compensate for the prior denial of FAPE, which might justify a larger
compensatory education award. Therefore, the Court affirms the hearing
officer's decision that 810 hours of compensatory education is the
appropriate remedy for the prior denial of a FAPE by the DCPS.
3. Whether the IEP team's Authority and Discretion to Reduce or
Discontinue the Compensation was Appropriate?
Plaintiffs also challenge the hearing officer's ruling that Mathew's
IEP team has the authority to "reduce or discontinue Mathew's
compensatory education if the team concludes that Mathew no longer needs
or is not benefitting from this compensatory education." Pls.' Mot., Ex.
1, HOD at 7. Plaintiffs argue that "to give defendants final authority
over the use of the award that their acts and omissions brought about is
illogical." Pls.' Opp'n at 15. However, this delegation of authority is
consistent with the purpose and structure of the IDEA. The IDEA sets out
a series of procedural safeguards for children and their parents to
ensure that, as the plaintiffs put it, "the fox [is not] in charge of the
chicken coop." Pls.' Mem. at 10. The primary vehicle for delivering a
FAPE to a student with a disability is through the IEP team, which
designs an IEP specific to each child's needs. G. ex rel R.G. v. Fort
Bragg Dependent Sch., 324 F.3d 240
, 243 (4th Cir. 2003). The IDEA
provides safeguards "designed to ensure that the parents . . . of a child
with a disability are both notified of decisions affecting their child
and given an opportunity to object to those decisions." Id. at 243
(quoting MM ex rel DM v. Sch. Dist. of Greenville County, 303 F.3d 523
527 (4th Cir. 2002) (internal citations omitted)). Parents are permitted
to be a part of the IEP team, 20 U.S.C. § 1414(d)(1)(B)(i), as well
as other individuals "who have knowledge or special expertise regarding
the child" at the "discretion of the parents."
20 U.S.C. § 1414(d)(1)(B)(vi). Also, parents receive written notice
before any changes in the IEP are made.
20 U.S.C. § 1415(b)(1)(C). And if the parents are unhappy with
the decisions of an IEP team, and their objections are not heeded, they
may request a due process hearing. 20 U.S.C. § 1415(f). These
safeguards are adequate to ensure that the IEP team acts in Mathew's best
interest. Therefore, the Court finds that the hearing officer's decision
to place re-evaluation authority of Mathew's needs and discretion to
terminate his special education services if they are no longer beneficial
with the IEP team is logical and not prohibited by the Act.
In sum, the Court affirms the decision of the hearing officer in all
respects. This is not a case where a child is being denied educational
services he desperately needs. This is also not a case where the DCPS has
objected to providing a needy child with special education services and
is challenging an award of any amount of compensatory education. Rather,
defendants are willing to provide Mathew compensatory education for the
time a FAPE was denied as instructed by the hearing officer. This is,
therefore, a case where plaintiffs are dissatisfied with the amount of
compensatory education awarded by the hearing officer, but have failed to
justify why more is necessary. While Mathew was denied a FAPE for a
significant portion of his educational experience, "[o]nce a child has
missed the benefit of education which was designed to be given at a
specific time . . . the Court [or hearing officer] must look to the
realities of the situation, and craft the best possible remedy."
Wingfield, No. 00-121, slip op. at 11-12. Without evidence supporting
plaintiffs' assertions, the Court cannot find that anything less than what
is required by the IDEA has been providedMarch 16, 2004 and therefore the
Court is without a basis for reversing the hearing officer's decision.
Accordingly, the Court will grant the defendant's motion for summary
SO ORDERED on this 16th day of March, 2004.*fn9
In accordance with the Memorandum Opinion that is being issued
contemporaneously with the filing of this Order, it is hereby
ORDERED that Plaintiffs' Motion for Summary Judgment [#8] is
denied. It is further
ORDERED that Defendants' Motion for Summary Judgment [#11] is granted.
It is further
ORDERED that Plaintiff's Motion to Strike the Declaration of Judith
Smith [#17] is found to be moot.
SO ORDERED on this on this 16th day of March, 2004.