United States District Court for the District of Columbia
March 25, 2004.
ANNA SCHOENBACH, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants
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.
A. IDEA Background
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).
B. Factual Background
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.
A. Legal Standard
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 "because a federal court is just as well
suited to evaluate the situation." See Kings Local Sch. Dist. Ed. of
Educ. v. Zelazny, 325 F.3d 724, 728 (6th Cir. 2003); accord McKenzie v.
Smith, 771 F.3d 1527, 1535 n.17 (D.C. Cir. 1985).
It is also well-settled that the "party challenging the administrative
determination must at least take on the burden of persuading the court
that the hearing officer was wrong." Kerkam v. McKenzie, 862 F.2d 884,
887 (D.C. Cir. 1988). Furthermore, "a court upsetting the [hearing]
officer's decision must at least explain its basis for doing so." Id.
Finally, the Supreme Court has defined the remedial authority of
district courts under § 1415(e) as "confer[ing] broad discretion on
the court. The type of relief is not further specified, except that it
must be `appropriate.' Absent other reference, the only possible
interpretation is that the relief is to be `appropriate' in light of the
purpose of the Act." Sch. Comm. of Burlington v. Dep't of Educ. of
Mass., 471 U.S. 359, 369 (1985).
B. Public School Placement
Under IDEA, parents who unilaterally decide to place their disabled
child in private school, without consent of local school officials, "do
so at their own risk." Florence County Sch. Dist. Four v. Carter,
510 U.S. 7, 15 (1993) (quoting Burlington, 471 U.S. at 372). Parents may
receive tuition reimbursement if a court finds that (1) "the public
placement violated IDEA" and
(2) "the private school placement was proper under the Act. Id. at 15.
The first factor is a threshold condition, for if the public school
placement would have been appropriate, the analysis ends, and a disabled
child's parents are not entitled to reimbursement.
20 U.S.C. § 1412(a)(10)(C)(i) (indicating that IDEA "does not require
a local educational agency to pay for the cost of education, including
special education and related services, of a child with a disability at a
private school or facility if that agency made [FAPE] available to the
child and parents elected to place the child in such private school or
facility."); M.C. v. Voluntown Ed. of Educ., 226 F.3d 60, 66 (2d Cir.
2000) ("Only if a court determines that a challenged IEP was inadequate
should it proceed to the second question."); T.R. v. Kingwood Township
Ed. of Educ., 205 F.3d 572, 582 (3d Cir. 2000) ("The threshold question
here focuses on the first prong-viz., whether the Board's proposed
placement violated the IDEA. . . . The parental reimbursement mandate
comes into play only if we answer yes to this initial question.").
The threshold question in this case is whether Anna's proposed public
school placement at Murch was appropriate. This inquiry turns on two
further sub-issues: (1) whether DCPS has complied with IDEA'S
administrative procedures and (2) whether or not the IEP generated by the
MDT was reasonably calculated to provide some educational benefit to
Anna. See Rowley, 458 U.S. at 207; Zearley v. Ackerman, 116 F. Supp.2d 109,
113 (D.D.C. 2000).
1. Compliance With IDEA Procedures
A school district must comply with the procedural requirements and
safeguards listed in 20 U.S.C. § 1415.*fn2 Though their briefs do
not identify them as such, plaintiffs raise two
procedural arguments: (1) that DCPS failed to provide a complete and
accurate transcript of the due process hearing, Compl. ¶¶ 60-61; (2)
that DCPS failed to meet its burden of proving Anna's IEP adequate,
largely because the hearing officer misapplied the burden of proof in his
decision. Compl. ¶ 72; see Pl's Mot. for Summ. J. at 16. The court
finds these arguments meritless.
Claims of procedural violations of IDEA do not, in themselves,
inexorably lead a court to find a child was denied FAPE. Most circuits*fn3
require plaintiffs to show substantive harm resulting from a procedural
violation before finding a denial of FAPE. See Adam J. v. Keller Indep.
Sch. Dist., 328 F.3d 804, 811-12 (5th Cir. 2003) ("[Circuits] that have
addressed this question head on have consistently held that `procedural
defects alone do not constitute a violation of the right to a FAPE unless
they result in the loss of an educational opportunity'").*fn4
The argument that DCPS failed to provide a complete and accurate
transcript fails because plaintiffs allege no substantive harm. At the
request of any party to a hearing, a local educational agency must
provide "a written, or, at the option of the parents, electronic verbatim
record" of an administrative hearing. 20 U.S.C. § 1415(h)(3). It
seems that DCPS produced the hearing transcript, see Defs.' Notice of
Filing Record (Mar. 11, 2003) [Dkt. # 9], only after this court's order
[Dkt. # 7] to do so. Nevertheless, plaintiffs do not allege any harm from
belated production of the transcript. Since plaintiffs seek retrospective
relief, in the form of tuition reimbursement, it is unclear how more
timely access to the transcript would have helped. Plaintiffs in fact
referred repeatedly to the transcript in their summary judgment motion.
See generally Pls.' Mot. for Summ. J. As a result, the court must reject
this procedural argument.
The argument that DCPS failed to meet its burden of proof*fn5 also
must fail. Plaintiffs do not present any direct evidence that the hearing
officer misapplied the burden of proof. In Kroot, a sister court
found probative a written statement by the hearing officer-"'[t]he burden
of proof shifts to the parents once DCPS is found to have not met its
burden of proof "-that clearly "reflect[ed] a misunderstanding regarding
the operation of the burden of proof." 800 F. Supp. at 982 n.10.
Plaintiffs offer no such evidence. Instead, they seem to argue that the
hearing officer misapplied the burden of proof whenever he discounted
evidence favorable to plaintiffs or cited evidence unfavorable to
First, plaintiffs argue that DCPS failed to meet its burden by
providing no oral testimony affirming that the 3/22/02 IEP was appropriate
for Anna. See Pls.' Mot. for Summ. J. at 18. But the failure to provide
oral testimony is not the same as providing no evidence at all.
Plaintiffs cite no authority requiring DCPS to produce oral testimony,
though it is well-established that a hearing officer may rely upon
written evidence of academic progress in his decision, see Rowley, 458
U.S. at 203, as the hearing officer did in this case. See HOD at 5
(citing academic records as evidence that Anna had made progress over the
years and that her IEP was appropriate).
Second, plaintiffs further argue that the HOD was erroneous to the
extent that it gave any weight at all to DCPS's witnesses: "The DCPS
witnesses were not competent to testify as they did, and the hearing
officer offered no explanation for his decision to defer to their
opinions above those of qualified experts and those who knew Anna
personally." Pls.' Mot. for Summ. J. at 19. Plaintiffs fail to identify a
case or applicable rule of evidence indicating which witnesses a hearing
officer must find competent or incompetent. See id. at 19. The HOD seemed
skeptical of testimony important to plaintiffs' case (especially that of
Dr. Edelstein and Anna's parents), but the hearing officer provided
reasons, justified by other testimonial and written evidence, for
discounting their testimony. See HOD ¶ 5 ("Dr. Edelstein went to the
IEP meeting . . . but she did not participate in a discussion on the IEP
goals and objectives and offered no recommendations on the IEP."); id.
("The parents took the developed IEP home to review."). The hearing
officer was entitled to make the judgments about witnesses that he did.
Finally, those complaining of procedural violations of IDEA must also
show substantive harm. Adam J., 328 F.3d at 811-12. Plaintiffs contend
that the hearing officer's procedural error, misapplying the burden of
proof, ratified a substantively defective IEP. See Pls.' Mot. for Summ.
J. at 23-29. This burden of proof argument is so entwined with the merits
that, even if there had been a clear procedural violation, it makes
little sense to consider it separately, at least in this case.*fn6 That
is, if Anna's Initial IEP was appropriate, then DCPS's "procedural"
failure led to no
harm and, therefore, no IDEA violation. If the Initial IEP was
substantively inappropriate, that alone is an IDEA violation, and it is
unclear what more relief plaintiffs could claim by proving a procedural
mistake as well. As a result, the court finds no procedural violations of
2. Educational Benefit
Plaintiffs contend that DCPS offered an inappropriate public school
placement for Anna by proposing to keep her at Murch. Specifically, they
argue that DCPS "neglected to propose a number of critical goals,
objectives and services for this troubled student, as identified by her
parents in their April 4, 2002 letter." See Pls.' Mot. for Summ. J. at
23. Based on the record before the hearing officer, and its obligation to
give a hearing officer's decision due weight, the court would not have
disturbed the HOD. However, evidence unavailable to the hearing
officer-the 2003-04 lEP-indicates that the Initial IEP was
inappropriate. The court therefore finds Anna's Initial IEP
The analysis of whether Anna's IEP was appropriate begins with the
hearing officer's determination. Rowley, which the hearing officer cites
in his report, HOD at 5, holds that IDEA was intended to provide a "basic
floor of opportunity" and an individualized plan "designed to provide
educational benefit to the handicapped child." 458 U.S. at 201. IDEA,
according to Rowley, imposes "no additional requirement that the services
so provided be sufficient to maximize each child's potential commensurate
with the opportunity provided other children." Id. at 198; see also
Kerkam, 862 F.2d at 886 (emphasizing that Rowley rejected "[i]n at least
four places" the notion that a public school placement must "maximize the
potential of handicapped children"). Furthermore, if a public school
placement is appropriate, a school district need not consider a private
placement, "even though a private school might be more appropriate or
able to serve the child." Jenkins v. Squillacote, 935 F.2d 303, 305
(D.C. Cir. 1991). The analysis of the appropriateness of a public school
placement "is not comparative." Id.
After considering oral testimony and the written record, the hearing
officer found that the proposed IEP met the Rowley standard, finding 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." HOD at 5. DCPS and the hearing officer relied on
evidence that while at Murch, Anna had advanced in grade every year and
received, in some classes, higher-than-average marks at "one of the best
academically performing schools in the DCPS system." HOD ¶ 2.
Rowley indicates that academic progress is strong, though not probative,
evidence that an IEP provides educational benefit. See 458 U.S. at 203
("The grading and advancement system thus constitutes an important factor
in determining educational benefit"); but see id. at 203 n.25 ("We do not
hold today that every handicapped child who is advancing from grade to
grade in a regular public school system is automatically receiving a Tree
appropriate public education.'"). Not only did Anna progress academically
at Murch, but according to the hearing officer, the IEP "included goals
and objectives on most of the issues raised by the parents and the
assessment [by Drs. Andrews and Edelstein] including social-emotional,
organizational skills, interpersonal social skills, coping skills, and
attending skills." HOD ¶ 5. Further, the hearing officer identified
evidence that Anna had made social and emotional progress. HOD 7 (finding
that Murch helped reduce teasing Anna suffered to "its lowest level in
fifth grade," and that Anna's father lauded Murch as "terrific" in
On the other hand, there is written and testimonial evidence by Drs.
Andrews and Edelstein, indicating that Anna requires a small classroom
setting, unavailable at Murch, to make
any progress in coping with Asperger's. Edelstein Report at 9 (Bates No.
97) ("Anna requires placement in a school which has small classrooms
where individual, and small group (3-4 students or fewer) is available
daily across all subject areas. . . ."); Tr. at 135 (Test, of Dr.
Edelstein) (stating that "it's not possible for [the Murch classroom
curriculum] to be individualized to meet Anna's needs, in my opinion. So
it's not a criticism of the teacher. It's not possible to do that in a
large class that is a mainstream setting."); Tr. at 126 ("I think . . .
that the identification of strengths and weaknesses is fairly correct.
What disturbs me . . . is that the goals are well meaning and well
intended, but there is no sensitivity, from my perspective, as to what
Asberger's [sic] children require."). Indeed, Dr. Edelstein testified
that while Anna has progressed academically, such progress in children
with Asperger's can be misleading because they cannot effectively use
information they seem to have mastered.*fn7 Finally, testimony suggested
that Anna's "social" progress at Murch-fewer students teasing her-was
also deceptive, and that Anna's condition had not improved and would not
improve at Murch. See Tr. at 131 (Test, of Dr. Edelstein) ("[Anna's]
behaviors are seriously atypical. The atypicality does not allow children
to embrace her."); id. (indicating that Murch provided "a
counterproductive set of circumstances for a child who has a hopeful
prognosis if the right intervention is available").
Based solely on the record before the hearing officer, the court would
not overturn the HOD. The evidence based on the written record and oral
testimony is mixed. On the one hand,
there is the evidence that the HOD relied on to find that Murch provided
the "basic floor" of educational benefit required by Rowley, and that the
IEP placing Anna at Murch even helped with her social-emotional goals.
See HOD ¶¶ 5 (indicating that the IEP included goals for Anna's
social, emotional and interpersonal development), 7 (suggesting Anna made
some social progress in 2001-02). DCPS also presented evidence by
psychologists that considered a special placement outside of general
education placement counterproductive. See Initial IEP Placement Notice
at 2 (Mar. 26, 2002) (Bates No. 22) (rejecting both 100% general
education and 100% special education as likely to fail). On the other
hand, the extensive evidence presented in the reports and testimony of
Drs. Edelstein and Andrews that the Murch placement is unsuitable for
Anna. Where evidence of educational appropriateness is mixed, and a court
bases its ruling on same record as before the hearing officer, the court
should defer to the hearing officer. See M.S. v. Ed. of Educ. of the City
Sch. Dist. of the City of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000)
(finding that, in a matter involving judgment about educational
progress, "the district court should defer to the [hearing officer's]
educational experience, particularly where . . . the district court's
decision was based solely on the record that was before the [hearing
However, plaintiffs present evidence-Anna's IEP for the 2003-04 school
year-not available to the hearing officer when he made his decision. See
generally Pls.' Ex. 1 (IEP Meeting Notes (July 22, 2003)) ("New IEP
Notes"). The new IEP team recommends, in essence, her current Kingsbury
placement. At the July 23, 2003 IEP meeting for Anna, the
multi-disciplinary team*fn8 agreed that Anna should be placed in a
full-time special educational program.
New IEP Notes at 1-2. The team specifically rejected a general education
setting or a combined general education with other resources (such as
Anna had at Murch with the classroom aide). Id. at 2. The new IEP team
based their decision, in part, on evidence available to the hearing
officer at the due process hearing. See id. at 2 (Written Test, of Laura
Olsen) ("After speaking with Anna's current psychologist and social
worker and reviewing additional reports made available at the last
meeting, it is the opinion of this psychologist that Anna requires a
full-time educational setting. . . ."). Nothing suggests any party
objected to this finding; rather, it seems all team members agreed on a
full-time special education placement, such as the one at Kingsbury.
This evidence is reason to depart from the HOD. It is not a failure to
provide the HOD due weight because the New IEP Notes provided evidence
unavailable to the hearing officer in September 2002. See Justin G. v.
Ed. of Educ. of Montgomery County, 148 F. Supp.2d 576, (D. Md. 2001)
(indicating that a court may consider an IEP placement developed after a
hearing officer's determination because such information "was not
available to the parents at the time of the administrative hearing nor
can the evidence be characterized as repetitive or embellished witness
testimony."). The evidence of Anna's needs now are relevant to
determining the appropriateness of Anna's placement in 2002-03. A child's
educational needs at the time of trial may be relevant in determining the
child's needs at the time of disputed events. See Ash v. Lake Oswego
Sch. Dist., 980 F.2d 585, 588 (9th Cir. 1992) (recognizing "the need for
such extrapolation given the likely delay in bringing IDEA cases before
the district courts"); see id. (finding that a child's "needs at the time
of the district court hearing undoubtedly reflect[ed] something of his
needs" in the two years before trial when his IEP was prepared).
In this situation, the New IEP Notes are relevant in determining
whether the Initial IEP, placing Anna at Murch, was appropriate. Nothing
in the new notes suggests that Anna's needs changed in a year, or that
the team thought the Initial IEP was appropriate at the time it was
formulated. Furthermore, no evidence suggests that Anna's condition
deteriorated suddenly between 3/26/02, the date of the Initial IEP, to
7/23/03, when the new IEP was released. See generally New IEP Notes.
Rather, the simple, unexplained reversal by the new IEP team is evidence
that the Initial IEP was wrong, even when formulated in 2002. For
instance, two members of the new IEP team from Murch Deborah
Ziff-Cook, Anna's former teacher, and Scott Cartland, present at Initial
IEP meeting and witness for DCPS at the hearing-both ratified the new IEP
and apparently agree that Anna should be full-time in a private school.
See id. at 1.
The New IEP Notes are important not because they contain new
information about Anna, but because they contain new information about
the judgments of those with greater educational expertise than this
court. The current consensus among those who know Anna is that a public
school placement is simply inappropriate for her. The court does not
"substitute [its] own notions of sound educational policy for those of
school authorities." Rowley, 458 U.S. at 206. Rather, instead of
deferring to the HOD, the court defers to a subsequent finding of school
authorities-the new IEP team. The court therefore concludes that the
Initial IEP, recommending Anna's placement at Murch, was inappropriate.
*fn9 It does not, and need not, reach the issue of
whether DCPS failed to implement the Initial IEP, since in any case, the
IEP was inappropriate.*fn10
C. Private School Placement
Once a plaintiff establishes that the proposed public school placement
was inappropriate, the second inquiry is whether or not the private
school placement is appropriate. No one seriously disputes the
appropriateness of Kingsbury as a private school placement. The new IEP
team recommends Kingsbury unreservedly. See New IEP Notes at 1
("Kingsbury should be strongly considered because it offers
continuity."). Unrebutted testimony at the due process hearing in 2002
also indicates that the parties considered Kingsbury appropriate. Tr. at
161 (Test, of Piper Caswell, Kingsbury curriculum development specialist)
(noting that Kingsbury's official position is that Kingsbury offers Anna
an appropriate placement).
DCPS does not contest the appropriateness of Anna's placement at
Kingsbury. See generally Defs.' Opp'n. Rather, DCPS's position is that
plaintiffs are not entitled to reimbursement because the Murch placement
was also appropriate, see id. at 10-13, but the court has already
overturned this finding. As a result, under Rowley, the court finds that
(1) Anna's public school placement at Murch was inappropriate and
violated FAPE; and (2) Anna's private placement at Kingsbury is
D. Reduction/Denial of Tuition
Even when a court finds parents of a disabled child eligible for
tuition reimbursement under Carter, 510 U.S. at 15, the 1997 IDEA
Amendments allow a court to reduce or deny reimbursement under certain
circumstances. See 20 U.S.C. § 1412(a)(10)(C)(iii); Ms. M. v.
Portland Sch. Comm., 2004 WL 431471, at *4 (1st Cir. Mar. 9, 2004) ("In
1997, Congress significantly amended IDEA and, in the process, clarified
the circumstances in which parents who unilaterally remove their children
from private school may receive tuition reimbursement.") (citing Pub.L.
No. 105-17, 111 Stat. 37 (1997)); id. at *6 ("The 1997 Amendments
tightened up the circumstances under which reimbursement was to be
allowed.");. The purpose of these "exceptions to reimbursement"
provisions is to "giv[e] the school system an opportunity, before the
child is removed, to assemble a team, evaluate the child, devise an
appropriate plan, and determine whether a [FAPE] can be provided in the
public schools." See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160
(1st Cir. 2004). The 1997 IDEA amendments gave effect and more structure
to case law preceding the amendments that held "that reimbursement for
private school tuition depended on the parents cooperating with school
authorities in determining the proper placement and educational plan for
the child." Id. at 159; Patricia P. v. Ed. of Educ.,
203 F.3d 462, 468 (7th Cir. 2000) (indicating that pre-amendment cases
made tuition reimbursement for unilateral private school placements
"subject to the parties cooperating in the placement process") (citing
Johnson v. Duneland Sch. Corp., 92 F.3d 554, 558 (7th Cir. 1996); Doe v.
Metro. Nashville Pub. Schs., 133 F.3d 384, 388 (6th Cir. 1998);
Schoenfeld v. Parkway Sch. Dist., 138 F.3d 379, 380-82 (8th Cir. 1998);
Ash, 980 F.2d at 589.
A court may reduce or deny tuition reimbursement if, inter alia, a
disabled child's parents, prior to or during the most recent IEP meeting
before removing their child from school, failed to "inform the IEP team
that they were rejecting the placement proposed by the public agency to
provide a [FAPE] to their child including stating their concerns and their
intent to enroll their child in a private school at public expense. . .
." 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa).*fn11 A court may also
reduce or deny tuition reimbursement "upon a judicial finding of
unreasonableness with respect to actions taken by the parents." §
1412(a)(10)(C)(iii)(III). The court finds that plaintiffs both failed to
provide adequate notice and acted unreasonably,*fn12 and therefore denies
the equitable remedy of tuition reimbursement.
Anna's parents failed to provide notice in compliance with either part
of § 1412(a)(10)(C)(iii)(I)(aa). The last IEP meeting before Anna
went to private school took place on March 26, 2002. Only two weeks after
the IEP meeting, on April 12, 2002, that Anna's
parents notified the IEP team that Anna would attend Kingsbury during
2002-03. Anna's parents did register certain objections when they
submitted a letter along with the signed Initial IEP on April 4, 2002.
See Schoenbach & Kade Ltr. to Cartland (Bates No. 132). However, this
letter was sent only after the March 26, 2002 IEP meeting, and still
provided no hint that Anna was to attend Kingsbury. See id. Further, while
Anna's parents expressed concerns about the Initial IEP, "there is a
difference between voicing general dissatisfaction and formally rejecting
an IEP." Loren F., 349 F.3d at 1317 (indicating that notice provision of
§ 1412(a)(10)(C)(iii)(I)(aa)-(bb) requires formal rejection by
parents, not just expressions of dissatisfaction).
It is clear that Anna's parents failed to provide the statutorily
required notice. But the conclusion that Anna's parents acted
unreasonably and should be denied reimbursement requires somewhat more
explanation. Courts may reduce or deny reimbursement-the text of IDEA
does not compel them to. 20 U.S.C. § 1412(a)(10)(C)(iii) ("The cost
of reimbursement [for unilateral private placements by parents] may be
reduced or denied") (emphasis added). Just as a court need not allow
recovery for a merely technical violation of IDEA without any showing of
substantive harm, see Adam J., 328 F.3d at 811-12, the mere fact that
parents violated the notice provision may not, in itself, justify reducing
or denying tuition reimbursement.
However, most circuits that have decided the issue*fn13 have upheld
complete denials of
tuition reimbursement to parents who failed to comply with the notice
requirement.*fn14 In many of these cases, courts justified totally
denying reimbursement because they found that a parent's unreasonableness
or failure to provide notice, in substantial part, caused a child's IEP
to be inappropriate in the first place.*fn15 Courts have found total
denial of reimbursement too harsh where a parent's actions did not
contribute to the inappropriateness of a child's educational plan.*fn16
The court finds that the failure of Anna's parents to provide proper
notice contributed to the formulation of an inappropriate IEP. Their
actions were significant factors in the IEP team's finding that a
placement at a public school was appropriate when it was not.
The Edelstein Report-especially the way Anna's parents reacted to it
and presented it to others-is central to this analysis. Anna's parents
profess to have been greatly moved by the report since reading it in
December 2001. The report first alerted Anna's parents that Anna had
Asperger's and also recommended Anna for full-time special educational
services. See Edelstein Report at 9 (Bates No. 97). Anna's parents claim
that the report "has been an eye-opener," that they "refer to the report
continuously, in terms of how we need to modify the environment, what
sort of attention to be placed on Anna, where her strengths and
weaknesses are," and that it has "has been [their] bible" with regard to
Anna's condition. Tr. at 109 (Test. of Schoenbach).
The report suggests, but does not directly say, that Anna should be in
a private school. Specifically, it indicates that "Anna requires
placement in a school which has small classrooms where individual, and
small group (3-4 students or fewer) instruction is available daily across
all subject areas and which has a staff knowledgeable about children with
severe social disabilities." See Edelstein Report at 9 (Bates No. 97).
Murch did not offer small classroom teaching. Nevertheless the report's
implication-that Anna should be in private school-was not self-evident.
Anna's parents testified that Drs. Edelstein and Andrews had to convince
them that public school
was inappropriate; once converted, Anna's parents quickly applied
to private schools:
[W]e argued very strongly with Dr. Andrews and Dr.
Edelstein about that: why it had to be a small
school; couldn't it be supplement to a regular
school. And we argued about that. And they were
very clear why. And frankly, I have to tell you,
we weren't completely convinced that that was the
only way, because we really do love Murch so much.
But we felt we had-We know in order to apply,
you have to apply a year ahead. So we started to
Trans at. 99 (Test, of Daryl Kade) (emphasis added).
Anna's parents gave the report to DCPS which, in turn, gave the report
to another psychologist, who presented her review of the report on
February 15, 2002. The reviewer seemed to agree with the report's
diagnosis and recommended that the IEP team "consider all additional up
to date data presented by parents, current teachers, and other
personnel." Ada E. Vincent, Review of Clinical Psychological Evaluation at
4 (Feb. 15, 2002) (Bates No. 126). Dr. Vincent's review did not recommend
a private school placement and did not seem to read the Edelstein Report
as requiring such a placement. See generally id. Yet the evidence
available on the record suggests DCPS agreed with all findings in the
report, and nothing suggests DCPS, before the Initial IEP meeting,
favored or disfavored a private school placement.
Critical to the finding that Anna's parents' actions contributed to the
inappropriateness of the Initial IEP is the dog that did not bark at the
March 26, 2002 IEP meeting. Dr. Edelstein and Anna's parents testified
that they strongly believed, before the IEP meeting, that public school
was inappropriate; yet they failed to object when the IEP team simply
recommended precisely that-a public school placement, albeit with certain
special services and accommodations.
First, Dr. Edelstein conceded that, while she attended perhaps half of
the IEP meeting on March 26, 2002, she never commented on, much less
criticized, the goals and objectives proposed by the Initial IEP. Her
silence is striking given the apparent depth of her conviction,
also expressed to Anna's parents, that a public school setting was
radically inappropriate and even likely to cause Anna's conditions to
worsen. See Tr. at 142 (Test, of Dr. Edelstein). During her oral
testimony, Dr. Edelstein's had difficulty justifying her silence:
Q: . . . [I]f you heard goals and objectives that
you now say are inappropriate being drafted at an
IEP meeting, you didn't at any point say that,
"maybe you need to revisit these"? . . .
A: I do remember one thing I did says, and that
was . . . I was in complete agreement with all of
[Dr. Andanitis's] conclusions.
Tr. at 146. The Initial IEP explicitly rejected full-time special
education and proposed a general classroom placement with just 5% of
Anna's time outside that setting. See Initial IEP at 1 (Bates No. 133).
But at the meeting when these proposals were made, Dr. Edelstein failed
to criticize a plan she later repudiated as having "no sensitivity . . .
as to what Asperger's children require." See Tr. at 126. This
inconsistency struck, unfavorably, the hearing officer. See HOD at 4
("Dr. Edelstein went to the IEP meeting which lasted over three hours,
but she did not participate in a discussion on the IEP goals and
objections and offered no recommendations on the IEP.").
More importantly, Anna's parents failed to object to Anna's proposed
placement at a public school. Anna's parents testified that before the IEP
meeting, Drs. Andrews and Edelstein convinced them that only a private
school placement was appropriate for Anna. Tr. at 99 (Test, of Kade). Yet
they, like Dr. Edelstein, did not protest when the Initial IEP proposed
public school. Anna's parents did not suggest that they objected to that
placement during the Initial IEP meeting. See Tr. at 73-101 (Test, of
Schoenbach); Tr. at 102-111 (Test, of Kade). Other IEP team members
seemed unaware, at the meeting, that Anna's parents thought public school
to be inappropriate, for they had had every opportunity to present
objections and did not suggest private school. Compare Tr. at 39-40
(Test, of Cartland) (indicating that Cartland worked with
the Schoenbachs on the March 26, 2002 IEP, that Cartland "worked
particularly with Mr. Schoenbach to . . . draft" and accommodated all the
wishes expressed by the Schoenbachs at that meeting) with Initial IEP
Notes (recording no objections by Anna's parents to the IEP).
Eight days after signing the IEP, Anna's parents notified DCPS that
they would place Anna at Kingsbury. See Gruber Ltr. To Gay (Apr.
4, 2002) (Bates No. 87). They testified that they waited until the end of
the 2001-02 school year before deciding to enroll Anna at Kingsbury:
[B]y the end of the year, after the experience with
the aide and the tutoring and the inability to get
integrated services, we absolutely concluded that the
recommendation was right; that Anna needed to be in a
smaller classroom setting; that she would not get the
attention that she needed, she would not have
confidence building. So we decided then, and we
informed the school then of our decision at the end of
Tr. at 100-01 (Test, of Kade). This testimony is, simply, wrong. The
April 12 letter presented DCPS no requests for more services or even an
ultimatum, but a fait accompli in unconditional language: "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) (emphasis added). The April 12 letter
contradicts testimony that Anna's parents intended to wait and see if the
IEP would help Anna before committing to Kingsbury.
In sum, the record and oral testimony indicates that (1) DCPS and the
Initial IEP team took the Edelstein Report seriously; (2) that the team
took the concerns of Anna's parents seriously and accepted their
requests; (3) that the Edelstein Report did not make clear, on its own,
that Anna needed to be in private school; (4) that at the March 26, 2002
IEP meeting, or anytime before April 12, 2002, Anna's parents, and Dr.
Edelstein, did not mention their
conviction that Anna required a private placement. The Initial IEP team
may have made a fundamental mistake in believing that the Edelstein
Report could be read to allow for a public school placement, or that
Anna's condition could improve in a regular classroom with the piecemeal
addition of services (1 1/2 hours of out-of-class instruction, the full
time aide). If alerted, the Initial IEP team might have agreed with the
Anna's parents and changed the IEP, if the new IEP (recommending Anna's
placement at Kingsbury) is any indication.*fn17 Though strongly convinced
before the IEP meeting that such piecemeal services in a general
classroom setting were simply not sufficient to help Anna progress,
neither Anna's parents nor Dr. Edelstein objected to the public school
placement at the IEP meeting. Such silence, despite their genuine
conviction that Anna needed to be in private school, is inexpliciable and
The court concludes that the Initial IEP proposed an inappropriate
public school placement in significant part because of the failure of
Anna's parents to object to the IEP when given the opportunity to do so.
Therefore, plaintiffs are not entitled to tuition reimbursement.
IDEA expects strong parental input at IEP meetings. Warren G., 190 F.3d
at 86 ("Vigorous advocacy is an anticipated by-product of a policy
encouraging parental involvement."). Such input is critical in assuring
that disabled children get the services they need. Rowley, 458 U.S. at
209 ("[I]ndividualized planning conferences are a way to provide parent
involvement and protection to assure that appropriate services are
provided to a
handicapped child."). But parents must talk, or complain, when given the
chance. Timely input can allow a school district to respond meaningfully
to parental requests. A disabled child's parents are not entitled to
reimbursement for an inappropriate IEP when their input may have made the
plan appropriate. An appropriate order accompanies this memorandum
ORDER AND JUDGMENT
For the reasons stated in the court's memorandum opinion docketed this
same day, it is this 25th day of hereby
ORDERED that JUDGMENT is entered in favor of defendants and against