The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Wesleyann and Warren Gill are ardent advocates for their son, W.G., who qualifies for and is receiving special education and related services as a child with a disability. A Hearing Officer found that the District of Columbia denied W.G. a free appropriate public education ("FAPE") in violation of the Individuals with Disabilities Improvement Education Act ("IDEIA"), 20 U.S.C. § 1400 et seq., because at least one of his teachers was not a certified special education teacher as his individualized education plan ("IEP") requires and he had been placed in inappropriate classes. As a result, the Gills demanded 150 hours of compensatory education for their son. The Hearing Officer concluded that the Gills produced insufficient evidence to sustain a compensatory education award for W.G. under the standards established by Reid v. District of Columbia, 401 F.3d 516, 523--24 (D.C. Cir. 2005). The Gills appeal this determination. The Court will deny the parties' cross-motions for summary judgment and invite the Gills to seek an evidentiary hearing. While compensatory education is a customary award for denial of a FAPE, it is not automatic, and the Gills' counsel did not establish a basis on which 150 hours might be awarded to W.G.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . 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., 477 U.S. at 322. To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248. A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Id.; Celotex, 477 U.S. at 322.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] 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, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. at 325. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675--76. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249--50 (internal citations omitted).
B. Individuals with Disabilities Education Improvement Act
The Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. § 1400 et seq., ensures that "all children with disabilities have available to them a free appropriate pubic 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). The IDEIA guarantees children with disabilities the right to a free appropriate public education ("FAPE"). Id. After a child is identified as having a disability, a team, which includes the child's parents, certain teachers, school officials, and other professionals, collaborates to develop an individualized educational program ("IEP") to meet the child's unique needs. See 20 U.S.C. §§ 1412(a)(4), 1414(d)(1)(B). Local school officials utilize the IEP to assess the student's needs and assign a commensurate learning environment. See 20 U.S.C. § 1414(d)(1)(A). The IEP team examines the student's educational history, progress, recent evaluations, and parental concerns prior to implementing a FAPE for the student. Id § 1414(d)(1)--(3). At a minimum, the IEP and the corresponding FAPE must "provide[e] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982). To determine whether a FAPE has been provided, courts must determine whether:
(1) the school complied with the IDEIA's procedures; and (2) the IEP developed through those procedures was reasonably calculated to enable the student to receive educational benefits. Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1312 (11th Cir. 2003).
While the District of Columbia is required to provide students with a public education, it does not guarantee any particular outcome or any particular level of education. Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 192 (1982); Dorros v. District of Columbia, 510 F. Supp. 2d 97, 100 (D.D.C. 2007). If a parent objects to the identification, evaluation, or educational placement of the student, or the provision of a free appropriate public education, 20 U.S.C. § 1415(b)(6), the parent may seek an impartial due process hearing. Id. § 1415(f)(1). If the parent is dissatisfied with the outcome of that hearing, the parent may appeal the decision to a state court or a federal district court. See 20 U.S.C. § 1415(i)(2)(A).
A reviewing court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." See 20 U.S.C. § 1415(i)(2)(C). A "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). Courts sitting on an IDEIA appeal do not have unfettered review but "must . . . give 'due weight' to the administrative proceedings and afford some deference to the expertise of the hearing officer and school officials responsible for the child's education." Lyons v. Smith, 829 F. Supp. 414, 418 (D.D.C. 1993) (citing Kerkam, 862 F.2d at 887). A court fashioning appropriate relief for a denial of FAPE, among other options, "may order compensatory education, i.e., replacement of educational services the child should have received in the first place." Reid, 401 F.3d at 518.
W.G. attended the SunRise Academy in Washington, D.C. during the 2007-2008 school year. As early as a multi-disciplinary team meeting on May 21, 2008, W.G.'s parents, through their advocate, explained that they were interested in a change in placement because, among other things, W.G. felt he was being made fun of at SunRise. Administrative Record [Dkt. # 13] ("A.R.") at 77--78. The May 2008 meeting focused partly on W.G.'s truancy from school. Id. at 76--78. Some members of the team disagreed with a change in placement, believing that W.G.'s truancy at SunRise needed to be corrected before any change in placement could be considered. Id. at 78. The parents filed a due process complaint on June 16, 2008, alleging, inter alia, that D.C. failed to provide W.G. with an appropriate placement. Id. at 85. A Hearing Officer determined on July 14, 2008, that given the extent of W.G.'s truancy - and a lack of analysis of its genesis - it was impossible to determine if SunRise were an inappropriate placement, and left the issue to be reevaluated at a later time. Id. at 87--88. The Hearing Officer also ordered further evaluations of W.G. Id.
After more testing, a multi-disciplinary team meeting on November 5, 2008, led to a re-classification of W.G. from Learning Disabled ("LD") to Mental Retardation ("MR") and Emotionally Disturbed ("ED"). Id. at 40, 57; see also A.R., Tr. of 5/15/09 Hr'g [Ex. 8, 9] ("Tr. 5/15/09") at 46--7. The team determined W.G. has an IQ of 51. A.R. at 56. His education advocate sought a transfer from SunRise and compensatory education but D.C. refused, at least partly because of W.G.'s poor attendance. Tr. 5/15/09 at 47, 87--88. The parties acknowledge that at that November 2008 meeting, ...