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Mary Mcleod Bethune Day Academy Public Charter School v. Bland

May 27, 2008

MARY MCLEOD BETHUNE DAY ACADEMY PUBLIC CHARTER SCHOOL, PLAINTIFF,
v.
TERRI BLAND, AS NEXT FRIEND OF THE MINOR CHILD, T.B., AND T.B., INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

SUPPLEMENTAL MEMORANDUM OPINION*fn1

This matter is before the Court following the hearing officer's February 25, 2008 Explanation of Compensatory Education Award. Having reviewed the Hearing Officer's Determination and the supplemental briefing supplied by the parties, the Court issues the following Supplemental Memorandum Opinion.

I. Background

The factual and procedural history of this case is set forth at length in the Court's February 20, 2008 Memorandum Opinion [17] and need not be restated herein. In granting summary judgment for Defendant with respect to Count I of Plaintiff's Complaint, the Court found that the Hearing Officer had sufficient information before him from which he could conclude that T.B. had been denied a free and appropriate public education ("FAPE") and was entitled to compensatory education. (Mem. Op. [17] at 10-11.) However, the Court denied the cross-motions for summary judgment as to Count II of Plaintiff's Complaint, finding that there was insufficient evidence in the record from which the Court could discern whether the Hearing Officer's award of 375 hours of compensatory education violated the principles set forth by the Supreme Court in Reid v. D.C., 401 F.3d 516 (D.C. Cir. 2005). (Id. at 14-15.) Accordingly, the Court remanded the case to the Hearing Officer for a further explanation of why 375 hours of tutoring was an appropriate remedy. (Id. at 15.)

On February 25, 2008, the Hearing Officer issued a supplemental Hearing Officer Determination in which he set forth the basis for the 375 hour award. (HOD of 2/25/08.) The Hearing Officer stated that the results of the Qualitative Reading Inventory, 4th Edition ("QRIIV") indicated that T.B. was reading two years behind grade level. (Id. at 2.) The Hearing Officer then found that while T.B.'s March 10, 2006 IEP called for fifteen hours per week of specialized instruction, T.B. only received five hours per week of specialized instruction and received no specialized instruction by a special education teacher during December 2006. (Id.) The Hearing Officer calculated that between March and December 2006, the school failed to provide a total of 375 hours of specialized instruction. (Id.) Finding that this number was close to the number of hours of tutoring recommended by the Sylvan Learning Center, the Hearing Officer concluded that 375 hours of tutoring was reasonably calculated "to close the two year grade level gap caused by the school's failure to provide FAPE and meet his individual needs." (Id.)

II. Legal Standards

A. Summary Judgment

A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate 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. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party bears the initial burden of identifying those portions of the pleadings or other documents in the record that it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The adverse party must then "go beyond the pleadings" and "'designate' specific facts showing that there is a genuine issue for trial." Id.at 324. To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party." Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). Although a Court should draw all reasonable inferences from the records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

B. The Individuals with Disabilities in Education Act

The IDEA provides for judicial review in state or federal court for "[a]ny party aggrieved by the findings and decision" rendered in a due process hearing. 20 U.S.C. § 1415 (i)(2)(A); 34 C.F.R. § 300.512.(b)(3). The reviewing court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."

20 U.S.C. § 1415(i)((2)(C); 34 C.F.R. § 300.512(b)(3). The burden is on the party challenging an administrative determination to persuade the court that the Hearing Officer was wrong. Reid, 401 F.3d at 521. Given the reviewing court's authority to hear additional evidence and base its decision on the preponderance of the evidence, IDEA "plainly suggests less deference than is conventional in administrative proceedings," and little deference is owed to a hearing decision that lacks reasoned and specific findings. Id. Finally, "[w]hen no additional evidence is introduced in a civil suit seeking review of an H.O.D., a motion for summary judgment operates as a motion for judgment based on the evidence comprising the record." Thomas v. D.C., 407 F.Supp.2d 102, 109 (D.D.C. 2005).

C. Compensatory Education

The Individuals with Disabilities in Education Act ("IDEA") guarantees children with disabilities the right to a free and appropriate public education with services designed to meet their individual needs. 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1). Where a school system fails to provide special education or related services to a disabled student, the student is entitled to compensatory education. Walker v. D.C., 157 F.Supp.2d 11, 30 (D.D.C. 2001). See also Reid, 401 F.3d at 522 ("Under the theory of compensatory education, courts and hearing officers may award educational services to be provided prospectively to compensate for a past deficient program.") (citations omitted).

A compensatory education award is an equitable remedy that "should aim to place disabled children in the same position they would have occupied but for the school district's violations of the IDEA." Reid, 401 F.3d at 518, 523. In crafting a compensatory education award, the Hearing Officer must engage in a fact-intensive analysis that is qualitative rather than quantitative. Branham v. D.C., 427 F.3d 7, 11 (D.C. Cir. 2005); Reid, 401 F.3d at 524. In Reid, the Court rejected "cookie-cutter" or mechanical remedies, such as awarding one hour of compensatory instruction for each hour that the student was denied FAPE, and stressed that the Hearing Officer must take into account individual assessments of the ...


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