The opinion of the court was delivered by: HENRY KENNEDY, District Judge
Plaintiffs, Anna Schoenbach ("Anna"), a minor with Asperger's Syndrome
and Attention Deficit and Hyperactivity Disorder, and her parents Andrew
Schoenbach and Daryl Kade ("Anna's parents"), appeal a District of
Columbia Public Schools ("DCPS") hearing officer's decision that they are
not entitled to reimbursement for tuition incurred in sending Anna to the
Kingsbury Day School. Defendants are the District of Columbia and Paul
Vance, former Superintendent of DCPS, sued in his official capacity.
Plaintiffs allege that the Individuals with Disabilities in Education Act
("IDEA"), 20 U.S.C. § 1400-1461, the Rehabilitation Act of 1973,
29 U.S.C. § 701 et seq., and 42 U.S.C. § 1983 provide the bases
for obtaining the relief they seek.
Before this court are the parties' cross-motions for summary judgment.
Upon consideration of the motions, the oppositions thereto, and the
record of this case, the court concludes that defendants' motion should
be granted and plaintiffs' motion should be denied.
Congress passed IDEA to "ensure that all children with disabilities
have available to them a free appropriate public education that
emphasizes special education and related services designed to meet their
unique needs." 20 U.S.C. § 1400(d)(1)(A). IDEA provides funding and
assists states in implementing a "comprehensive, coordinated,
multidisciplinary, interagency system of early intervention services for
infants and toddlers with disabilities and their families."
20 U.S.C. § 1400(d)(2). In order to receive funding under IDEA,
states must also ensure that "[a]ll children with disabilities residing
in the State, including children with disabilities attending private
schools, regardless of the severity of their disability, and who are in
need of special education and related services, are identified, located,
and evaluated." 34 C.F.R. § 300.125(a)(1)(i). IDEA'S free appropriate
public education ("FAPE") provision entitles each disabled student to an
individualized education program ("IEP"), educational services tailored
to the unique needs of each disabled child. 20 U.S.C. § 1414(d)(2)(A)
("At the beginning of each school year, each [state] shall have in
effect, for each child with a disability in its jurisdiction, an
individualized education program."); 34 C.F.R. § 300.300(a)(3)(ii).
A full evaluation of a child is an integral part of developing an
appropriate IEP. Therefore, IDEA requires states to "conduct a full and
individual initial evaluation . . . before the initial provision of
special education and related services to a child with a disability."
20 U.S.C. § 1400(d)(2). Once a child has been evaluated and identified
as disabled, the school district must annually create an IEP tailored to
the disabled child's needs. The IEP is developed in a periodic,
but no less than annual, meeting of an IEP team including parents,
faculty, and evaluators. 20 U.S.C. § 1414(d)(1)(B). The IEP must meet
a number of standards set out in 20 U.S.C. § 1414(d)(1)(A).
By definition, a "free" appropriate public education means that
services, including evaluations, must be "provided at public expense,
under public supervision and direction, and without charge."
20 U.S.C. § 1401(8)(A). If the proposed educational services cannot
be provided by the school district, the IDEA requires the child's
placement in a private school at public expense. 20 U.S.C. § 1413(a)(4).
Parents who disagree with their child's evaluation or placement may
request an administrative hearing, before an impartial hearing officer,
to challenge the IEP. 20 U.S.C. § 1415(b)(2). The hearing officer's
determination ("HOD") may be challenged in federal district court.
20 U.S.C. § 1415(e)(2).
Anna Schoenbach, now thirteen years old, attended Murch Elementary
School ("Murch") from kindergarten through the fifth grade-through the
2001-02 school year. At the end of third grade, Anna had some
psychological evaluations, which indicated the presence of a learning
disability in fine motor skills, an anxiety disorder, Oppositional
Defiant Disorder, and a provisional diagnosis of ADHD (Inattentive
Type). Terry Edelstein & Lynnwood Andrews, Psychological Assessment:
Anna Schoenbach at 2 (Dec. 19, 2001) (Bates No. 90) ("Edelstein Report")
(discussing Anna's diagnosis history). DCPS provided her with a Section
504 plan pursuant to the Rehabilitation Act, but not for IDEA services.
Anna's last Section 504 plan,
revised in September 2001, provided for certain classroom accommodations
(e.g., "reducing homework," "allowing student to tape record lessons")
and prescribed medication for Anna's ADHD. See generally Section 504 Plan
(Sept. 28, 2001) (Bates Nos. 66-68).
Despite the Section 504 plan, Anna continued to have problems. In
October 2001, Anna's parents made arrangements to have Anna evaluated by
psychologists, Dr. Terry Edelstein and Dr. Lynnwood Andrews, "due to her
difficulties with social interactions, anxiety, oppositional behavior and
problems in school." Edelstein Report at 1 (Bates No. 89). Dr. Andrews
confirmed the ADHD diagnosis but also found that Anna had Asperger's, an
autism-spectrum disorder that combines high cognitive ability with
impairment of social relations and restrictive, repetitive patterns of
behavior. See id. at 5 (Bates No. 93). Anna's parents gave DCPS the
report, which a DCPS-hired psychologist reviewed and largely agreed
with. See Ada E. Vincent, Review of Clinical Psychological Evaluation at
4 (Feb. 15, 2002) (Bates No. 72) (noting that tests conducted by
Edelstein and Andrews "indicate a chronic pattern of social withdrawal,
social skills deficits regarding poor nonverbal communication and
perception of nonverbal cues, and poor peer relations, and a restricted
range of interests with intense preoccupation consistent with mild
On February 19, 2002 and March 26, 2002, DCPS held IEP meetings with a
multidisciplary team ("MDT") consisting of Anna's parents, DCPS
officials, Anna's teachers at Murch, and psychologists. Based on the
Edelstein Report and input from Anna's Murch teachers and parents, the
team agreed that Anna was eligible for special educational services under
IDEA. Most of the team agreed that Anna should be eligible for IDEA
services under the category of "autism," although Anna's parents
objected, arguing that she should also be eligible under
another category as well. Initial IEP Notes at 3 (Mar. 26, 2002) (Bates
No. 147). This is the sole instance, on the record, of Anna's parents
objecting to anything at the IEP meetings. See generally Initial IEP
Notes (Bates Nos. 23-24, 25-26, 143-47, 148-49). The team also agreed
that Anna should receive one hour of specialized instruction and thirty
minutes of counseling every week, and, in addition, that DCPS should hire
a full-time, in-class aide to assist Anna. See Initial IEP at 1, 10
(Mar. 26, 2002) (Bates Nos. 133, 142). The parents took the IEP home.
Plaintiffs apparently had every opportunity to request changes and make
objections, and any changes they did request were incorporated into the
Initial IEP. See Tr. at 39 (Test, of Scott Cartland) (indicating that
Cartland, assistant principal at Murch, worked with Anna's parents on the
Initial IEP, and that he "worked particularly with Mr. Schoenbach to . .
. draft" the IEP); see id. at 40 (noting that "any requests for goals and
objectives or services for Anna made by the parents" were included in the
Initial IEP). Nothing appears to have stopped Anna's parents from
requesting different goals than those in the Initial IEP or recommending
a private placement.
On April 4, 2002, Anna's parents signed and submitted the proposed IEP
along with a letter stating that they accepted the IEP for the remaining
months of the 2001-02 school year, but that otherwise they felt the IEP
inadequate. See Schoenbach & Kade Ltr. to Cartland (Apr. 4, 2002)
(Bates No. 132). They claimed that the proposed IEP failed to provide
small group instruction available daily across all
subject areas, staff knowledgeable about children with
severe social disabilities, training integrated into
the wider curriculum, small structured and supervised
activity groups, and an individualized educational
plan that allows Anna to practice new skills and
demonstrate her competency within the confines of her
limited range of interests-in summary, a "coordinated
social, communications, and adaptive skills curriculum
and behavior management approach."
Id. The letter reflected, and in places parroted, the concerns listed in
the Edelstein Report.
Compare id. with Edelstein Report at 8 (Bates No. 96).*fn1
parents claim that they signed the Initial IEP "to get something in place
as soon as possible for the remainder of the school year." Id. The letter
itself, however, contained no request for a private school placement, and
no attempt to notify DCPS that they had applied to private schools. See
On April 12, 2002, plaintiffs submitted DCPS a letter indicating that
Anna had been accepted at the Kingsbury Day School, a private school for
disabled children, for the 2002-03 school year. The letter simply
announced, as fact, that Anna would attend Kingsbury:
While the family has agreed to permit DCPS to
implement the proposed IEP through the remainder of
the current school year, we remain skeptical that the
IEP and placement will be sufficient to meet Anna's
unique and complex needs. In compliance with the
notice requirements of IDEA, DCPS is hereby advised
that my clients will execute a tuition contract with
Kingsbury Day School on or about April 30, 2002, with
enrollment scheduled for September, 2002.
Gruber Ltr. to Gay (Bates No. 87). Anna remained at Murch until the end
of the 2001-02 school year. While Anna's Initial IEP called for a
full-time aide starting just after April 4, 2002, it was not until May
20, 2002 that an aide started working with Anna in the classroom. Tr. at
93 (Test, of Andrew Schoenbach). Mr. Schoenbach's uncontroverted
testimony indicates that the aide was unqualified and, in short, a
"disaster." See id. at 91 (noting that the aide "had just finished high
school; had had no training in education, let alone special education, no
training in tutoring; and clearly had had no experience or training in
dealing with a child with a complex emotional problem"); id. at 93 ("It
was an absolute disaster. Despite our discussions, the aide interpreted
her responsibility as-I can only call it harassment.").
In July 2002, plaintiffs requested a due process hearing, alleging that
Anna's IEP was inappropriate and was not even implemented as written.
Request for Hearing at 2 (July 3, 2002) (Bates No. 85). Plaintiffs
requested "that DCPS be ordered (or agree) to place and fund Anna at
Kingsbury for school year 2002-03, with tuition, related services, and
transportation." Id. DCPS held a hearing before an impartial officer on
September 9, 2002. See generally Tr. The hearing officer denied
plaintiffs' request for relief, finding that DCPS "developed an
appropriate IEP that provides educational benefits to Anna, that it has
implemented that IEP and that Murch is an appropriate placement for
Anna." Hearing Officer's Determination at 5 (Sept. 17, 2002) ("HOD"). One
month later, plaintiffs timely filed the present action.
Normally, under Fed.R.Civ.P. 56, summary judgment shall be granted if
the pleadings, depositions, answers to interrogatories, admissions on
file and affidavits show that there is no genuine issue of material fact
in dispute and that the moving party is entitled to judgment as a matter
of law. Material facts are those "that might affect the outcome of the
suit under the governing law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In considering a motion for summary judgment,
the "evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor." Id. at 255.
In IDEA cases, however, a district court shall review the
administrative record, hear additional evidence presented at the request
of the parties, and based "on the preponderance of the evidence shall
grant such relief as the court determines is appropriate."
20 U.S.C. § 1415(e)(2) (emphasis added). In making this assessment, a
district court is to give the hearing
officer's determination "due weight." Ed. of Educ. v. Rowley, 458 U.S. 176,
206 (1982) (holding that § 1415(e) "carries with it the implied
requirement that due weight shall be given to" the administrative
proceedings). The "due weight" standard of review does not rise to the
level of de novo review because "courts must be careful to avoid imposing
their view of preferable educational methods upon the States." Id. at
207. Less weight is due to a hearing officer's decision for matters not
involving educational expertise ...