The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Kea Norris and her minor son, J.N., brought this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487 (2000), challenging a hearing officer's dismissal of her due process complaint that alleged that the District of Columbia Public Schools ("DCPS") denied J.N. a free, appropriate public education ("FAPE") by failing to comply timely with earlier directives in a hearing officer's determination ("HOD"), failing to allow Norris to help develop J.N.'s individualized education program ("IEP"), and failing to provide J.N. with an appropriate educational placement. The parties have cross-moved for summary judgment. Although DCPS did not comply timely with the HOD, Norris has failed to show error in the hearing officer's determination that the delay was not harmful. However, DCPS has shown no evidence of any reasonable diligence in responding to or accommodating Norris' requests to reschedule the meeting to develop J.N.'s IEP so that she could participate, a procedural failing that renders infirm the hearing officer's finding that J.N.'s school placement was appropriate. Thus, each motion will be granted in part and denied in part.
When this complaint was filed, J.N. was a twelve-year-old student enrolled at a public school, Aiton Elementary ("Aiton"), and classified as learning disabled and eligible for special education and related services. (Defs.' Stmt. of Material Facts ("Defs.' Stmt.") ¶¶ 1-3.) In January 2006, an IEP was developed requiring that J.N. receive twelve and one-half hours of specialized instruction, one hour of speech language services, and 30 minutes of psychological services each week. (Id. ¶ 7.) In March 2006, at Norris' request, a hearing officer directed DCPS to conduct a speech and language evaluation, an occupational therapy evaluation and a clinical psychological evaluation within 10 days of the order; perform a Functional Behavioral Assessment and a Behavior Intervention Plan within 15 days of the order; complete an Assistive Technology evaluation withing 15 days of the order; and convene a multi-disciplinary team ("MDT")/IEP meeting no later than 15 days after the receipt of the last evaluation. (See A.R., Ex. 7. at 0204.)
Months later, on September 8, 2006 Norris filed an administrative due process complaint against DCPS arguing, in part, that DCPS had failed to complete the required evaluations, failed to convene an MDT/IEP meeting, and failed to provide the necessary compensatory education. (A.R., Ex. 10 at 0328-32.) DCPS eventually completed all of the evaluations (Def.'s Stmt. ¶ 5), although J.N. appears to have received all of the ordered services in the interim. (Defs.' Mem. of P. & A. in Supp. of Defs.' Mot. for Summ. J. and in Opp'n to Pls.' Mot. for Summ. J. ("Defs.' Mem.") at 13.) On September 21, 2006, DCPS conducted the required MDT/IEP meeting without Norris after notice to her (Defs.' Stmt. ¶¶ 10, 13) and unanswered requests by her to DCPS to reschedule it. (See A.R., Ex. 6 at 0193-94.) At the meeting, DCPS developed another IEP, calling for the same amount of specialized instruction and services as those called for in the previous IEP. (Defs.' Stmt. ¶ 7.)
Two months later, a hearing officer held a hearing on Norris' due process complaint. The three DCPS professionals who had been providing J.N. with special education instruction, speech and communication services, and psycho-social counseling services under the IEP over the previous year testified. All said J.N. had made progress at Aiton since the previous year. (Defs.' Stmt. ¶¶ 18, 23-36.) On January 11, 2007, the hearing officer dismissed the plaintiffs' administrative complaint after finding that DCPS had complied -- although untimely -- with the March 2006 HOD, that the delay did not harm J.N., that DCPS' efforts to obtain Norris' participation in the IEP meeting were diligent and reasonable and revealed no procedural flaw, and that J.N.'s educational placement at Aiton was appropriate. (A.R., Ex. 2 at 0007.) Norris brought this action, challenging the hearing officer's dismissal.
The parties have cross-moved for summary judgment under Federal Rule of Civil Procedure 56(c). Rule 56(c) provides for entry of summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, "show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). "The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
IDEA "ensure[s] 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 and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A).
It "allows parents to file administrative complaints and request due process hearings 'with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.'" Wright v. District of Columbia, Civil Action No. 05-0990 (RWR), 2007 WL 1141582, at *2 (D.D.C. April 17, 2007) (quoting 20 U.S.C. § 1415(b)(6)(A)). A reviewing court is to "review the administrative record, hear additional evidence if so requested by the parties, and, based on the preponderance of the evidence, . . . grant such relief as the court determines is appropriate." Id. (internal quotation marks omitted). The administrative officer's findings must be given due weight, but less deference is called for than would normally be accorded an administrative decision. See Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988). "[A] party challenging the administrative determination must at least take on the burden of persuading the court that the hearing officer was wrong, and . . . a court upsetting the officer's decision must at least explain its basis for doing so." Id. A court's primary consideration is compliance with the procedural requirements of IDEA, and a court should not substitute its own judgment for that of school agencies regarding what is in the best educational interests of a student. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
I. DELAYED COMPLIANCE WITH HOD
"[P]rocedural violations of IDEA do not, in themselves, inexorably lead a court to find a child was denied FAPE." Schoenbach v. District of Columbia, 309 F. Supp. 2d 71, 78 (D.D.C. 2004). "[A]n IDEA claim is viable only if those procedural violations affected the student's substantive rights." Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006) (emphasis in original); see also C.M. v. Bd. of Educ. of Union County Reg'l High Sch. Dist., 128 Fed. Appx. 876, 881 (3d Cir. 2005) (per curiam) ("[O]nly those procedural violations of the IDEA which result in loss of educational opportunity or seriously deprive parents of their participation rights are actionable."); see, e.g., Kruvant v. District of Columbia, 99 Fed. Appx. 232, 233 (D.C. Cir. 2004) (denying parents relief because "although DCPS admits that it failed to satisfy its responsibility to assess [the student] for IDEA eligibility within 120 days of her parents' request, the [parents] have not shown that any harm resulted from that error"). "A delay does not affect substantive rights if the student's education would not have been different had there been no delay." D.R. ex rel. Robinson v. Gov't of D.C., 637 F. Supp. 2d 11, 18-19 (D.D.C. 2009) (finding that the defendant's delay affected the student's substantive rights because the student's most recent IEP differed from the one previously issued).
Norris argues, in part, that the hearing officer erred by not finding that DCPS' failure to comply timely with the March 2006 HOD caused J.N. irreparable harm. Norris, however, has failed to show that the hearing officer's conclusion was wrong. Although explanation for that conclusion was spare, the record evidence reflected a basis for the conclusion. While the ordered evaluations were delayed, J.N. received in the interim the services and instruction that the IEP completed in January 2006 required. The fact that the IEP completed in September 2006 (A.R., Ex. 9 at 0303) called for the same amount of specialized instruction and services as the one completed in January 2006 (Id., Ex. 7 at 0229) was some evidence of lack of harm. See, e.g., D.R. ex rel. Robinson, 637 F. Supp. 2d at 18. The testimony by J.N.'s teacher and counselors that he had made progress under the IEP supported the ...