Plaintiff, Derrick Shelton, an adult student, brought this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et. seq.,*fn1 as well as 42 U.S.C. § 1983, against Defendant, Maya Angelou Public Charter School ("MAPCS"). The IDEA provides that all children with disabilities will be provided a free and appropriate public education ("FAPE"), and provides for procedural safeguards to ensure that disabled children receive individualized education programs ("IEP") to fulfill the Act's goals. This case comes before the Court in connection with an April 5, 2007 Hearing Officer Determination ("HOD") and related proceedings. Specifically, Plaintiff's May 21, 2007 Complaint for declaratory and injunctive relief alleges that Defendant has failed to comply with the April 5, 2007 HOD. Along with his Complaint, Plaintiff filed a Motion for a Temporary Restraining Order and Preliminary Injunction ("TRO/PI Motion"). See Docket No. . The Court denied Plaintiff's TRO/PI Motion without prejudice on June 12, 2007, after the parties held discussions and reached an agreement regarding the implementation of the April 5, 2007 HOD. See 6/12/07 Order, Docket No. .
Currently pending before the Court are motions for summary judgment filed by each party. Plaintiff's Motion argues that MAPCS has failed to comply with the April 5, 2007 HOD, that the April 5, 2007 HOD was correct, and that MAPCS has violated 42 U.S.C. § 1983. In contrast, Defendant's Motion argues only that the Hearing Officer erred in his April 5, 2007 HOD and also that this entire action is moot in light of the Court's denial of Plaintiff's TRO/PI Motion. Upon a searching examination of both parties' filings, the relevant statutes and case law, and the entire record herein, the Court finds that this action is not moot, that Defendant has failed to establish any error in the April 5, 2007 HOD, and that Defendant failed to comply with the April 5, 2007 HOD. The Court also finds, however, that Plaintiff has not established that MAPCS's failure to comply with the April 5, 2007 HOD resulted in a denial of FAPE, and that Plaintiff is not entitled to summary judgment on his claim pursuant to 42 U.S.C. § 1983. Accordingly, the Court shall GRANT-IN-PART and DENY-IN-PART Plaintiff's  Motion for Summary Judgment, and shall DENY Defendant's  Motion for Summary Judgment.
At the outset, the Court observes that the District Court for the District of Columbia has supplemented Federal Rule of Civil Procedure 56 with LCvR 7(h), which requires that each party submitting a motion for summary judgment attach a statement of material facts to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement. The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts which the party contends are at issue and thus require litigation. See LCvR 7(h). Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. Id. As the Court of Appeals for the District of Columbia Circuit has emphasized, "[LCvR 7(h)] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992)). Because of the significance of this task and the potential hardship placed on the court if parties are derelict in their duty, courts require strict compliance with LCvR 7(h). See id. at 150 (citations omitted).
As the parties were advised before they filed their Motions for Summary Judgment, this Court strictly adheres to the text of Local Civil Rule 7(h) when resolving motions for summary judgment. See 8/21/07 Order, Docket No. ; see also Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002). Although discretionary in the text of the Local Civil Rule 7(h), in resolving the present summary judgment motion, this Court "assume[s] that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h)(1). The United States District Court for the District of Columbia has recently clarified that, for "cases in which judicial review is based solely on the administrative record . . . motions for summary judgment and oppositions thereto shall include a statement of facts with references to the administrative record." LCvR 7(h)(2). Local Civil Rule 7(h)(2) does not alter the parties' obligations to submit statements of material fact in support of motions for summary judgment in administrative review cases. Rather, as the Comment to Local Civil Rule 7(h) states, LCvR 7(h)(2) "recognizes that in cases where review is based on an administrative record the court is not called upon to determine whether there is a genuine issue of material fact, but rather to test the agency action against the administrative record." See Comment to LCvR 7(h).
In setting out the factual background, where possible, the Court cites to the parties' statements of facts filed in accordance with Local Civil Rule 7(h). The Court has reviewed the record citations by the parties to ensure that the representations made in the parties' statement are accurate, and notes that so-called "factual assertions" that are unsupported by citations to accurate record evidence are insufficient to create issues of material fact. The Court also cites directly to the record, if appropriate, to address facts not covered by the parties in their statements of material facts. Moreover, the Court only uses the facts in a manner consistent with the approach taken by the parties in their briefing and arguments made to the Court. See, e.g., Morgan v. Federal Home Loan Mortgage Corp., 328 F.3d 647, 655 n.10 (D.C. Cir. 2003). Again, the Court emphasizes that, in accordance with the Local Civil Rule, it "assume[s] that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h)(1).
A. Events Occurring Prior to the April 5, 2007 Hearing Officer Determination
Plaintiff Derrick Shelton attended Maya Angelou Public Charter School during the 2006-2007 school year. Def.'s Stmt. of Mat'l Facts as to Which There is No Genuine Issue ("Def.'s Stmt.") ¶ 1; Pl.'s Response to Def.'s Stmt. of Mat'l Facts ("Pl.'s Resp.") ¶ 1.*fn2 Plaintiff's Individualized Education Plan ("IEP") identifies him as learning disabled and calls for a total of four (4) hours and twenty-five (25) minutes of specialized instruction and counseling per week: ninety (90) minutes of counseling, one (1) hour of special education consultation, and one (1) hour and fifty-five (55) minutes of advisory services. Pl.'s Stmt. ¶ 1; Def.'s Stmt. ¶ 2; Pl.'s Resp. ¶ 1. During the first quarter of the 2006-2007 school year, Plaintiff performed well academically and was on the honor roll. Def.'s Stmt. ¶ 3; Pl.'s Resp. ¶ 1, Administrative Record ("A.R.") at 3 (4/5/07 HOD). In addition, however, prior to November 17, 2006, Plaintiff was suspended for a total of four days: two in September 2006 for being disrespectful to a teacher and two in connection with other incidents for one day each. A.R. at 3 (4/5/07 HOD).
On November 17, 2006, Plaintiff was involved in an incident with another MAPCS student (his girlfriend at the time). Def.'s Stmt. ¶ 4; Pl.'s Resp. ¶ 2. While Plaintiff asserts that he acted in self-defense, see Pl.'s Resp. ¶ 2, the parties do not dispute that Plaintiff assaulted the other student, was immediately disciplined by being removed from MAPCS, and was not allowed to return to MAPCS as a student after November 17, 2006, see Pl.'s Stmt. ¶ 2; Def.'s Stmt. ¶¶ 4-5; Pl.'s Resp. ¶ 2; A.R. at 3-4 (4/5/07 HOD). On November 22, 2006, MAPCS sent a letter to Plaintiff's father, informing him that Plaintiff had been suspended with the intent to expel. Def.'s Stmt. ¶ 6; Pl.'s Resp. ¶ 3; A.R. at 212. The letter indicated that MAPCS's special education coordinator would be scheduling a manifestation determination review ("MDR") meeting as soon as possible. A.R. at 4 (4/5/07 HOD); A.R. at 212.
Pursuant to the IDEA, an MDR meeting "shall" be held "within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct." 20 U.S.C. § 1415(k)(1)(E). It is undisputed that the MDR in Plaintiff's case was not held until December 19, 2006. Def.'s Stmt. ¶ 11; Pl.'s Resp. ¶ 4; A.R. at 4-5 (4/5/07 HOD). Before the Hearing Officer below, Plaintiff argued that MAPCS denied him FAPE when it failed to convene an MDR meeting within 10 school days of his suspension, see A.R. at 9 (4/5/07 HOD); however, the Hearing Officer concluded that MAPCS's delay in convening the MDR meeting was justified and did not constitute a denial of FAPE. Id. at 9-10. In reaching this conclusion, the Hearing Officer credited testimony that Plaintiff's "father wanted to delay the meeting." Id. The Hearing Officer also noted that "once the student retained counsel the MDR was convened on a date proposed by his counsel," and acknowledged that MAPCS offered to provide Plaintiff with tutoring once he had been out of school for ten days. Id. As neither party has contested the Hearing Officer's findings in this respect, the Court does not revisit herein either the Hearing Officer's ultimate conclusion or its factual underpinnings.
1. The MDR Meeting and Resolution Meeting
As noted above, MAPCS convened the MDR in this case on December 19, 2006. Def.'s Stmt. ¶ 11; Pl.'s Resp. ¶ 4. Plaintiff, his parents, and his educational advocate attended the meeting, along with a counselor, Plaintiff's algebra teacher, a psychologist, and the Special Education Coordinator from MAPCS (collectively the "MDR Team"). Id.; A.R. at 4-5 (4/5/07 HOD). The MDR Team determined that Plaintiff's behavior on November 17, 2006 was not a manifestation of his disability, concluding that although Plaintiff had previously been suspended, the November 17, 2006 incident was an aberration. Def.'s Stmt. ¶ 11; Pl.'s Resp. ¶ 4; A.R. at 5 (4/5/07 HOD). During the MDR meeting, Plaintiff's educational advocate expressed a desire to reconvene the MDR Team at a later date to review Plaintiff's IEP. Id. The MDR Team did not discuss a placement for Plaintiff or consider the services that Plaintiff would be provided during the period that he was not attending MAPCS. A.R. at 5 (4/5/07 HOD). The MDR Team also did not discuss whether a Functional Behavioral Assessment ("FBA") or Behavioral Intervention Plan ("BIP") should be conducted. Pl.'s Resp. ¶ 6; A.R. at 74-78 (notes of MDR meeting). The decision to expel Plaintiff from MAPCS was not made at the MDR meeting. A.R. at 5 (4/5/07 HOD); A.R. at 74-78 (notes of MDR meeting).
Immediately after the MDR meeting on December 19, 2006, MAPCS convened a resolution meeting regarding a due process complaint filed by Plaintiff's counsel against MAPCS. Def.'s Stmt. ¶ 20; Pl.'s Stmt. ¶ 7; A.R. at 3, 5 (4/5/07 HOD). Plaintiff's counsel attended the resolution meeting. Def.'s Stmt. ¶ 21; A.R. at 6 (4/5/07 HOD). At the resolution meeting, MAPCS offered to provide Plaintiff with three hours of tutoring per week until District of Columbia Public Schools ("DCPS") determined a new placement for Plaintiff. Def.'s Stmt. ¶ 22; A.R. at 6 (4/5/07 HOD). Significantly, however, the Hearing Officer found that there was no agreement as to the amount of tutoring during the resolution meeting, because "Counsel indicated she wanted the student readmitted," "MAPCS did not agree to readmit the student and the meeting ended." A.R. at 6 (4/5/07 HOD). In its Statement, Defendant alleges that "MAPCS's IEP team determined that 3 hours of individualized one-on-one tutoring per week was appropriate since [Plaintiff's] IEP called for a total of 4.5 hours of specialized instruction and counseling in a classroom setting." Def.'s Stmt. ¶ 23. The pages of the Administrative Record that Defendant cites in support of this assertion are entirely unrelated to the assertion. See A.R. at 110-13. Moreover, Defendant's use of the phrase "IEP team" to describe a group of MAPCS personnel is disingenuous because the IDEA explicitly defines the term "IEP Team" as a group of individuals composed of-- (i) the parents of a child with a disability; (ii) not less than 1 regular education teacher of such child . . . ; (iii) not less than 1 special education teacher . . . of such child; (iv) a representative of the local educational agency . . . ; (v) an individual who can interpret the instructional implications of evaluation results . . . ; (vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child . . . ; and (vii) whenever appropriate, the child with a disability. 20 U.S.C. § 1414(d)(1)(C). To be clear, Defendants do not assert that all of these individuals collectively determined that 3 hours of tutoring per week was appropriate. Def.'s Stmt. ¶ 23.
2. Events Leading to the March 12, 2007 Due Process Hearing
Following the MDR meeting and resolution meeting, MAPCS issued a letter to Plaintiff indicating that he had been expelled as of December 19, 2006. A.R. at 5 (4/5/07 HOD). The letter indicated that MACPS would provide Plaintiff with tutoring for the time that he was out of school following the tenth day of his suspension, and directed Plaintiff to register at his neighborhood school as soon as possible. Id.; A.R. at 79. The letter informed Plaintiff that his transcript and other records would be sent to his neighborhood school, but did not indicate how Plaintiff could appeal his suspension or expulsion. Id. The Hearing Officer found that, despite MAPCS' letter, Plaintiff and his parents were under the impression that Plaintiff was still enrolled at MAPCS until the due process hearing was complete, and therefore did not take any action to register Plaintiff at his neighborhood school or any other school. A.R. at 5 (4/5/07 HOD).
Also following the MDR meeting and resolution meeting, MAPCS contacted the school's DCPS liaison and informed her of Plaintiff's expulsion. Def.'s Stmt. ¶ 24; A.R. at 6 (4/5/07 HOD). The DCPS liaison told MAPCS that Plaintiff's neighborhood school could implement his IEP. Id. MAPCS's Special Education Coordinator then went to Plaintiff's neighborhood school and provided the special education coordinator at that school with Plaintiff's student records. Id.; see also A.R. at 85.
Plaintiff's counsel filed an amended due process complaint on January 12, 2007. A.R. at 6 (4/5/07 HOD). In January 2007, Plaintiff's educational advocate sent a letter to MAPCS proposing dates to reconvene the MDR Team to discuss Plaintiff's IEP. Id.; see also A.R. at 184.*fn3 Nevertheless, the MDR Team did not reconvene prior to the March 12, 2007 due process hearing. See Tr. of 3/12/07 Due Process Hrg. ("Hrg. Tr.") at 30:23-31:1 (testimony of C. Hamilton, educational advocate).*fn4 In addition, following the filing of Plaintiff's amended due process complaint, MAPCS's Special Education Coordinator made three attempts to contact Plaintiff's counsel to convene a resolution meeting. A.R. at 6 (4/5/07 HOD). A second resolution meeting was eventually convened, but Plaintiff's complaint was not resolved. Id. at 7.
3. March 12, 2007 Due Process Hearing and April 5, 2007 HOD
The due process hearing in this case was held on March 12, 2007, and Plaintiff was represented by counsel. Def.'s Stmt. ¶ 26; Pl.'s Resp. ¶ 9. During the hearing, Plaintiff, each of his parents, Plaintiff's educational advocate, MAPCS's Special Education Coordinator, and an MAPCS psychologist all testified. See generally Hrg. Tr. As was made clear during the hearing testimony, and as the Hearing Officer found in his April 5, 2007 HOD, the parties disagree as to the tutoring that MAPCS provided Plaintiff between his November 17, 2006 suspension and the March 12, 2007 due process hearing. It is clear from the Administrative Record that factual disputes exist still in this regard as to "when the tutoring [offered by MAPCS began], the quantity of tutoring delivered, the subjects covered in the tutoring and the student's availability for tutoring." A.R. at 6 n.5 (4/5/07 HOD). Although the Court cannot resolve this issue on the current record, the dispute is not material to the April 5, 2007 HOD, the Court's review of that HOD, or the Court's resolution of the parties' Motions for Summary Judgment.
The Hearing Officer issued his Determination on April 5, 2007. See A.R. at 2-17 (4/5/07 HOD). As noted above, the Hearing Officer found that MAPCS did not deny Plaintiff FAPE by failing to convene the MDR within 10 days following Plaintiff's November 17, 2006 suspension. See id. at 9-10. In contrast, the Hearing Officer found that Plaintiff's counsel sustained Plaintiff's burden of proof in showing that MAPCS denied Plaintiff FAPE when it (1) failed to conduct an FBA and BIP following the MDR meeting, and (2) failed to provide Plaintiff with an alternative placement and/or to provide Plaintiff with continued services following his suspension/expulsion. Id. at 10-13. As a remedy, the HOD ordered:
1. MAPCS shall within ten (10) school days of the issuance of this Order, convene a multi-disciplinary team/individualized educational program (MDT/IEP) meeting to develop a FBA [Functional Behavioral Assessment] and BIP [Behavioral Implementation Plan] for the student, discuss if any additional evaluations are warranted, review and/or revise the student's IEP as appropriate, discuss and determine the student's placement, and discuss compensatory education and develop a compensatory education plan for the time student has not been provided an alternative interim placement decided by the IEP team.
2. MAPCS shall ensure that a representative of DCPS [District of Columbia Public Schools] participates in the MDT/IEP meeting.
3. MAPCS shall either allow the student to reenroll at MAPCS or DCPS shall issue a prior notice of placement within five (5) school days of the MDT/IEP meeting if the recommended placement is public and thirty (30) calendar days if the recommended placement is private.
4. Scheduling of the MDT/IEP meeting is to be arranged through parent's counsel.
5. MAPCS and DCPS will be given a day for day extension of any of the prescribed time frames in this Order for any delay caused by the student, the parent and/or their representative(s).
6. If there is not agreement by the parties as to the compensatory education plan for the student pursuant to this Order either party may petition this Hearing Officer for an expedited hearing on this issue.
B. Events Following the April 5, 2007 Hearing Officer Determination
Following the April 5, 2007 HOD, Plaintiff's educational advocate attempted to schedule the MDT required by the HOD. Pl.'s MSJ, Ex. 1 (4/11/07 Letter from educational advocate to MAPCS Special Education Coordinator). MAPCS, however, responded that it was "appealing the HOD issued on April 5, 2007, and thus [would] not be convening the MDT meeting outlined in the HOD." Pl.'s Stmt. ¶¶ 5-6; Pl.'s MSJ, Ex. 3 (4/13/07 Letter from ...