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A.M. v. District of Columbia

United States District Court, District of Columbia

March 28, 2013

A.M., et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants

For A.M., a minor, by his parent and next friend Tracy Davenport, TRACY DAVENPORT, Plaintiffs:


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AMY BERMAN JACKSON, United States District Judge.

On August 18, 2011, Tracy Davenport, acting on behalf of her minor child, A.M., (together " plaintiffs" ), brought this action against the District of Columbia challenging a hearing officer's determination that A.M. was not denied a free and appropriate education (" FAPE" ) pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq. This Court referred the case to Magistrate Judge Alan Kay on September 28, 2011. Subsequently, both parties filed cross-motions for summary judgment. The Magistrate Judge issued a Report and Recommendation on December 17, 2012, recommending that this Court deny plaintiffs' motion for summary judgment and grant defendant's cross-motion. Plaintiffs filed timely objections to the Report. The Court has reviewed the entire record de novo, including the administrative record, the transcript of the proceedings before the hearing officer, and the Hearing Officer Determination, and based on that review, it will accept the findings and recommendations of the Magistrate Judge, deny plaintiffs' motion, and grant the District's cross-motion.


A.M. is currently a ten year-old student who resides with his mother, Tracy Davenport, in the District of Columbia. Administrative Record [Dkt. # 15] (" AR" ) 8, 45. He attended D.C. Preparatory Academy Edgewood Campus (" D.C. Prep" ), a public charter school, for kindergarten and first grade. AR 8; see also Tr. of A.M. Administrative Hearing [Dkt. # 15] (" Tr." ) at 193:1-194:11. While in kindergarten, A.M. was diagnosed with Mixed Receptive-Expressive Language Disorder, and he became eligible for special education and related services. AR 7, 66-68. In September 2009, shortly after starting his first-grade year, D.C. Prep drafted an individualized education program (" IEP" ) providing A.M. with ten hours of special education services per week. AR 110. By the end of his first-grade year, A.M. had " improved in classroom participation and engagement in learning. He ha[d] also shown growth in number sense and computation. The Special Education teachers [at D.C. Prep] both reported significant progress. However, his learning appeared inconsistent . . . ." AR 110. In the meantime,

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though, Ms. Davenport explored other options, and in March of 2010, she put down a deposit reserving a place for A.M. at Kingsbury Day School. Tr. 217:20-218:21.

During an IEP meeting on the last day of school, the D.C. Prep staff gave Ms. Davenport an overview of A.M.'s progress that year and recommended revising his IEP to include fifteen hours of instruction outside the general education setting and five hours within it. AR 79-85. The team also recommended continuing speech language services for two hours a week and occupational therapy for one and a half hours a week. AR 85. In response, Ms. Davenport informed the team that she had already decided to withdraw A.M. from D.C. Prep and had enrolled him at Kingsbury for the upcoming school year. AR 85, Tr. 196:14-:19. In August 2010, Ms. Davenport enrolled A.M. in Brookland Educational Campus at Bunker Hill - the neighborhood school - as a non-attending student so that she could ask the D.C. public school system (" DCPS" ) to develop a special education program and placement for him. AR 86, 102, Tr. 243:15-:21.

Between August 2010 and January 2011, representatives for A.M. attended and participated in four meetings with Brookland's multidisciplinary team (" MDT" ) to develop an IEP for A.M. The parties also continued their discussions and work between the meetings.

o August 24, 2010 IEP Meeting: Ms. Davenport and her attorney met with the Brookland special education team including Linda Miller (the special education coordinator), a regular education coordinator, an audiologist, a social worker, a special education teacher, a school psychologist, a speech language pathologist, and an occupational therapist. AR 88. During the meeting, the IEP team agreed to review the evaluations of A.M. from D.C. Prep, and Ms. Davenport gave members of the Brookland team permission to observe A.M. at Kingsbury. AR 88-93.
o September 2010 Observations: In September 2010, the Brookland speech language pathologist and the occupational therapist observed A.M. at Kingsbury. AR 95-99. The Brookland school psychologist also observed A.M. at Kingsbury, reviewed A.M.'s evaluations, and interviewed his former teachers at D.C. Prep and the special education teacher at Kingsbury. AR 102-12.
o October 13, 2010 Meeting: Ms. Davenport, her attorney, and Marlene Gustafson (the Kingsbury Associate Head of School) met with the Brookland team including Linda Miller, a speech language pathologist, an occupational therapist, a school psychologist, and a special education teacher. AR 116. At the meeting, the participants reviewed their observations of A.M. at Kingsbury and decided to reconvene to determine how many hours of special education services to include in the IEP and where the IEP should be implemented after seeking input from the D.C. Prep staff. AR 114-17.
o December 1, 2010 Meeting: Ms. Davenport, two of her attorneys, A.M.'s godmother, and Marlene Gustafson met with the Brookland team including Linda Miller, a special education teacher, a social worker, and a speech language pathologist. AR 121. By this point, the IEP under consideration recommended twenty hours of specialized instruction per week. AR 122. The participants reviewed the proposed hours of service. AR 121. Additionally, Ms. Gustafson stated that more goals needed to be added to the plan and agreed to share draft goals

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and objectives with the Brookland team. AR 121-22. The Brookland team agreed to review these goals and to share a draft IEP with Ms. Davenport and her attorneys on December 15, 2010. AR 121-22. The participants also agreed to reconvene to finalize the IEP on January 5, 2011. AR 121-22.
o December 1, 2010 Letter: Ms. Davenport's attorney wrote to Linda Miller to voice her concern that " the team has predetermined the level of service that [A.M.] requires." AR 122. The attorney specifically stated that at the last meeting, the IEP team proposed providing twenty hours of specialized instruction to A.M. based on discussions that occurred with D.C. Prep staff without the involvement of A.M.'s representatives. AR 122. The letter also stated that while Ms. Davenport is willing to consider any proposed placement for A.M., she requests that the IEP team consider placing him at Kingsbury. AR 122.
o December 15, 2010 Draft IEP: On December 15, 2010, Ms. Davenport's attorney sent the Kingsbury staff's suggested goals to Linda Miller, and stated her willingness to extend the IEP draft deadline to allow DCPS to incorporate these goals. AR 134. The Kingsbury staff suggested goals in the areas of Math, Reading Comprehension, Written Expression, Classroom Adaptation, Communication, and Expressive Speech-Language. AR 135-43.[1] About four hours later, Miller emailed the attorney stating that she would fax the draft IEP shortly. AR 131. Later that day, the attorney sent a letter to Miller expressing concern that the IEP did not include many of Kingsbury's suggested goals and again offering to give Miller more time to revise the IEP to incorporate those goals. AR 144. On December 17, 2010, the attorney also sent Miller additional social emotional goals to incorporate into the draft IEP. AR 145.
o Pre-January 5, 2011 Conversation Regarding Where To Implement the IEP: Before the final IEP meeting, Miller spoke with the placement " specialist" at Brookland about where A.M.'s IEP should be implemented. Tr. 334:15-335:5. The specialist reviewed the data and she and Miller decided that A.M.'s IEP could be implemented at Brookland because Brookland already had students with " life disabilities" and could provide A.M.'s academic needs and related services. Tr. 337:13-:19, AR 167.
o January 5, 2011 Meeting: Ms. Davenport, two of her attorneys, her educational consultant, Gustafson from Kingsbury, and a classroom teacher at Kingsbury met with the Brookland staff including Linda Miller, another special education coordinator, a special education teacher, a regular education teacher, a social worker, an occupational therapist, and a speech language pathologist. AR 169, 171. The Brookland team presented the IEP for A.M. and proposed implementing it at Brookland. AR 169. At the conclusion of the meeting, Ms. Davenport

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expressed her disagreement with " the proposed program and placement" because she believed that A.M. required full-time special education to be provided by Kingsbury. AR 169. She also informed the group that she would be " seeking funding from DCPS for placement at Kingsbury." AR 170; see also AR 187-89.
o Final IEP: The final IEP included thirty minutes of occupation therapy in the general education setting and the following services outside of the general education setting: 7.5 hours per week of specialized reading instruction; 7.5 hours per week of specialized math instruction; 5 hours per week of specialized written expression instruction; 2 hours per week of speech language pathology; 120 minutes per week of behavioral support services; and 30 minutes per week of occupational therapy. AR 179.

In February 2011, Ms. Davenport and her educational consultant visited Brookland " to see what they had to offer." Tr. 209:19-214:2, 108:21-:22; see also Tr. 95:1-97:20. While there, she asked the Brookland special education instructor to set out/detail what A.M.'s schedule would actually look like if he enrolled. The Brookland special education instructor stated that generally it was difficult to create a schedule for a student with more than 15 hours of specialized instruction because the school had to consider other variables like recess and special subjects. Tr. 258:10-:17; see AR 179 (proposing that A.M. have 20 hours of specialized instruction plus additional related services). She also stated that she could not provide a schedule for A.M. at that precise moment. Tr. 258:10-:17. A.M. had not yet enrolled at Brookland. Tr. 259:7-:8.

On March 17, 2011, Davenport filed a due process complaint asserting that DCPS had denied A.M. a free and appropriate public education. AR 218. After a due process hearing on May 11, 2011, the hearing officer issued his determination on May 22, 2011, finding that the District did not deny A.M. a FAPE because: (1) the January 2011 IEP contained a sufficient number of hours of specialized instruction and included appropriate goals; (2) DCPS proposed to place A.M. in a school that could implement the IEP; and (3) A.M. and his representatives had actively participated in the IEP process. AR 23-38. The hearing officer also concluded that DCPS did not predetermine the components of the IEP, and noted that in fact, it had adopted a number of A.M.'s team's suggestions. AR 34-36. The hearing officer also found DCPS's witnesses to be more credible and persuasive because Ms. Davenport's witnesses relied on the wrong legal standards. AR 23-25. He also concluded that Ms. Davenport's own credibility was impaired because she had never intended to enroll A.M. in a D.C. public school in the first place; DCPS " could not deny FAPE to the student if the student was never going to attend one of [its] public schools." AR 25-26. Based on these findings, the hearing officer denied Ms. Davenport's request for payment for private schooling at Kingsbury. AR 38; see also AR 218 (detailing the relief requested by Ms. Davenport).

On August 18, 2011, Ms. Davenport filed this action on behalf of A.M. appealing the hearing officer's determination.[2] Compl. [Dkt. # 1] ¶ ¶ 1-2. The Court referred the

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case to Magistrate Judge Kay for full case management on September 28, 2011. Order Referring Case [Dkt. # 4]. Plaintiffs then filed a summary judgment motion arguing the administrative decision should be reversed because the hearing officer was impartial, " failed to complete a reasoned and substantive analysis of the evidence before him, [and] incorrectly determined that DCPS had offered A.M. an appropriate Individualized Education Program (" IEP" ) and placement." Pl.'s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 18] at 1-2. Defendants opposed the motion, and filed their own cross-motion for summary judgment asking the Court to affirm the hearing officer's decision. Def.'s Opp. to Pl.'s Mot. for Summ. J. and Def.'s Mem. in Supp. of its Cross-Mot. for Summ. J. [Dkt. # 20] at 44.

On December 17, 2012, the Magistrate Judge issued a Report and Recommendation in which he recommended that this Court deny plaintiffs' motion and grant defendant's cross-motion. Report and Recommendations [Dkt. # 24] (" R& R" ) at 2. Plaintiffs filed their timely objections to the Report on December 27, 2012. Pls.' Objections to Report and Recommendations [Dkt. # 25] (" Pls.' Obj." ).


When a party objects to a Magistrate Judge's recommended disposition, the Court reviews de novo the portion of the recommendation that has been objected to. Fed.R.Civ.P. 72(b)(3); see, e.g., Smith v. District of Columbia, 846 F.Supp.2d 197, 198-200 (D.D.C. 2012); D.D. ex rel. Davis v. District of Columbia, 470 F.Supp.2d 1, 1-3 (D.D.C. 2007). The Court may " accept, reject, or modify" the magistrate judge's recommendation. Fed.R.Civ.P. 72(b)(3).


Plaintiffs raise four objections to the Magistrate Judge's Report and Recommendations. They contend that:

1. The Magistrate Judge did not properly address " the overwhelming evidence of pre-determination; "
2. The Magistrate Judge erred in accepting the hearing officer's credibility determinations;
3. The DCPS IEP was deficient; and
4. The hearing officer was biased and/or incompetent.

Pls.' Obj. 2-13. None of these grounds compels the rejection of the Magistrate Judge's Report or the reversal of the hearing officer's determination.

I. The Record Reflects That Ms. Davenport Fully Participated In The IEP Process.

In their objections to the Magistrate Judge's report, plaintiffs set out the authorities that require " meaningful" participation by the parent in the decision making process. See, e.g. Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ( " Congress sought to protect individual children by providing for parental involvement . . . in the formulation of the child's individual educational program." ) (citation omitted); Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 858 (6th Cir. 2004), (citation omitted) (" Participation [of parents] must be more than a mere form; it must be meaningful. " ) (emphasis in original). The District does not quarrel with this fundamental proposition, and the Report and Recommendation reflects that the Magistrate Judge assessed the record with this important legal principle in mind. See R& R at 11-12. And, as the Magistrate Judge determined, the record demonstrates a pattern of consistent and meaningful participation by Tracy Davenport, the parent of the child involved. Not

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only did Ms. Davenport attend four IEP meetings, AR 88, 116, 121, 169, and make comments at those meetings, AR 88, 115, 120, 169-70, but she was accompanied by a skilled special education attorney at all of the meetings, AR 88, 116, 121, 169, 171. On top of that, the Associate Head of the Kingsbury Day School - Marlene Gustafson, a Kingsbury classroom teacher, A.M.'s godmother, and an educational consultant all participated in one or more meetings, in person or by telephone conference. AR 116, 121, 169, 171. The record further reflects, as the Magistrate Judge found, that DCPS was receptive to their input and incorporated many of their recommended goals into A.M.'s IEP. Compare Kingsbury Suggested Goals, AR 135-47, with DCPS IEP, AR 171-83 (demonstrating that the proposed IEP included goals in all the subject areas that Kingsbury suggested except classroom adaptation).

Given this evidence of active participation by a parent supported by a team of experts and advocates, and a constructive dialogue between DCPS and A.M.'s team, the record amply supports the Magistrate Judge's finding that Ms. Davenport's participation in the development of the IEP was meaningful.

Plaintiffs also advance a more specific objection, though, and they assert:

Prior to the final IEP meeting, DCPS unilaterally determined that A.M. should attend Brookland with twenty hours of specialized instruction. The decision was made without the input of A.M.'s mother; she was not afforded an ...

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