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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. Page 2


 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, Page 3 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, Page 4 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 Asperger's Disroder.").

  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 Page 5 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. Page 6 Compare id. with Edelstein Report at 8 (Bates No. 96).*fn1 Anna's 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 id.
  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."). Page 7

  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 Page 8 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 ...

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