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Aikens v. District of Columbia

United States District Court, District Circuit

June 21, 2013

EDITH AIKENS, et al., Plaintiffs,


ROSEMARY M. COLLYER, United States District Judge

Plaintiffs Edith Aikens and her minor daughter, T.A., filed this suit, alleging that Defendant District of Columbia denied T.A. a free appropriate public education in violation of the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq., when the District of Columbia moved T.A. from Transition Academy at Shadd to Ballou Arts and Technology Senior High School without prior written notification to Ms. Aikens or her involvement in the decision. The District of Columbia responds that such procedures were not required because T.A.’s move from Shadd to Ballou did not constitute a change in educational placement. The Court agrees with the decision of the Hearing Officer that the schools are not substantially and materially different, and thus no change in educational placement occurred. As a result, T.A. was not denied a FAPE by any absence of procedural safeguards. The Court will grant the District’s motion for summary judgment.


A. Statutory Framework

The Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”) ensures 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). In designing a free appropriate public education (“FAPE”) for students with disabilities, the child’s parents, teachers, school officials, and other professionals collaborate in a “multi-disciplinary team” to develop an individualized educational program (“IEP”) to meet the child's unique needs. See Id . § 1414(d)(1)(B). Local school officials utilize the IEP to assess the student’s needs and assign a commensurate learning environment. See Id . § 1414(d)(1)(A).

While the District of Columbia is required to provide disabled students a FAPE, it is not required to, and does not, guarantee any particular outcome or any particular level of academic success. See 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 the parent objects to the identification, evaluation, or educational placement of a disabled child, or whether she is receiving a FAPE, 20 U.S.C. § 1415(b)(6), the parent may seek an “impartial due process hearing” before a D.C. Hearing Officer, who issues a Hearing Officer Determination (“HOD”). Id. § 1415(f)(1)(A). If the parent is dissatisfied with the HOD, she may appeal to a state court or a federal district court. See Id . § 1415(i)(2)(A).

B. Factual Background

Plaintiff T.A. was a seventeen-year-old student at the time of the relevant events. AR 13. T.A. had an emotional disturbance and was therefore disabled and eligible for special education services under the IDEA. Id. In February 2011, a multi-disciplinary team, which included T.A.’s mother, considered and revised an IEP for T.A. See 34 C.F.R. §§ 300.116, .327. The revised IEP required T.A. to receive specialized instruction outside a general education setting for 31.5 hours per week, four hours per month of behavioral support services, and speech and language therapy for 30 minutes per month. AR 61. T.A.’s IEP also set academic, communication, and behavioral goals. Id. at 56-60.

During the 2010-2011 school year, T.A. was placed at the Transition Academy at Shadd (“Shadd”).[1] At the end of the 2010-2011 school year, Shadd was closed and moved to the Ballou Senior High School building.[2] AR 13. It is undisputed that Ms. Aikens received notice that Shadd was closing at the end of the 2010-2011 school year. Pl. Statement Material Facts (“Pl. SMF”) [Dkt. 10] ¶ 5. The parties dispute, however, whether Ms. Aikens was notified that Shadd would be moving to Ballou and that T.A. was to start school at BAT in the fall. Compare Pl. SMF ¶¶ 6-8, 10-11, 16 (asserting that no information was provided to Ms. Aikens regarding where D.C. Public Schools (“DCPS”) had placed T.A.), with Def. Cross-Mot. for Summ. J. (“Def. Mot.”) [Dkt. 11] at 5 (asserting that Plaintiffs “became aware that . . . the special education program at Shadd would be moving to Ballou”) and Def. Reply [Dkt. 15] at 4 (“There is additional evidence that Plaintiffs received the proper notification from DCPS that Shadd was closing and its special education students were being relocated to Ballou.”).

In a letter dated August 22, 2011, Ms. Aikens informed DCPS of her decision to place T.A. at High Road of D.C. Upper School (“High Road”). AR 214-15. High Road is “a non-public separate day-school for children with social/emotional disabilities.” Id. 16. DCPS responded within 24 hours to Ms. Aikens’s letter, stating that it would not reimburse her for T.A.’s placement at High Road because it believed that BAT could provide T.A. with a FAPE. Id. at 249. Ms. Aikens, however, sent T.A. to High Road when school opened.

On November 10, 2011, Ms. Aikens filed an administrative complaint challenging T.A.’s placement at BAT. After a hearing on January 6, 2012, a HOD dismissed the complaint with prejudice on January 12, 2012. The HOD considered two issues: (1) whether the change from Shadd to BAT constituted a change of placement and if so, whether T.A. was denied a FAPE by DCPS’s failure to notify Ms. Aikens or involve her in the placement decision, and (2) if T.A. was denied a FAPE, whether Ms. Aikens was entitled to reimbursement for T.A.’s tuition at High Road. AR 9. The Hearing Officer made the following findings of fact regarding Shadd:

Students at Transition Academy were taught by special education and regular education teachers. There were six licensed social workers on staff and one school psychologist. There were seven to eight behavior technicians who were all trained in therapeutic crisis intervention (TCI). There were typically 60 students at Transition Academy of a capacity of 90 to 110. The school served students with behavior and social/emotional needs in grades nine through 12. Positive intervention strategies and other supports were used with the student at Transition Academy. The School had a designated room for therapeutic intervention for students in crisis or other disciplinary or social/emotional needs. The School was housed in a renovated elementary school with no other school programs and some administrative offices.

AR 13-14. The Hearing Officer made the following findings of fact regarding BAT:

BAT is a secondary school program serving students with disabilities outside of the general education setting. The school is housed in the Ballou Senior High School and is maintained separately from the high school with security guards between the schools. Students at BAT may only interact with non-disabled peers when entering or leaving the building or if their IEPs require they be in a less restrictive setting for part of the day. All students at BAT are supposed to be involved in and progressing in the general education curriculum. Additionally, there are remedial courses and vocational courses for students. Students do not attend classes with non-disabled peers unless their IEPs permit, and classes are provided with specialized instruction as necessary, including electives. The students are provided behavioral and social/emotional supports including the use of behavior technicians and a special intervention room for processing with students. There [are] 31.5 hours per week of school time at BAT, but only 28 hours of instructional time for the normal school week. There are currently 90 students enrolled at BAT. Not all teachers have District of Columbia teaching licenses but they do have licenses from other states. Some classes are only taught by a special education teacher and some are co-taught ...

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