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D.K. v. District of Columbia

United States District Court, District Circuit

August 26, 2013

D.K., a minor, by his parents, PAUL and MELISSA KLEIN, Plaintiffs,


ROSEMARY M. COLLYER, District Judge.

Plaintiffs Paul and Melissa Klein, in their own right and on behalf of their minor son D.K., seek a preliminary injunction compelling the District of Columbia to maintain D.K.'s placement at the McLean School of Maryland pursuant to the "stay put" provision, 20 U.S.C. § 1415(j) of the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §§ 1400 et seq. Because the "stay put" provision does not apply, the motion will be denied.


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 a parent objects to the identification, evaluation, or educational placement of a disabled child, or whether he is receiving a FAPE, see 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 determination. Id. § 1415(f)(1)(A). If the parent is dissatisfied with the determination, he may appeal to a state court or a federal district court. See id. § 1415(i)(2)(A).

B. Background

D.K. is a fifteen-year-old student who has been diagnosed with disabilities including Mixed Receptive-Expressive Language Disorder, Attention Deficit Hyperactivity Disorder, Learning Disorder, Pervasive Developmental Disorder, Anxiety Disorder, and stuttering. AR[1] at 10, 12. When he was ready to begin third grade at the beginning of the 2006-2007 school year, D.K.'s parents, Paul and Melissa Klein (Plaintiffs), unilaterally removed him from his neighborhood elementary school and enrolled him in the McLean School of Maryland (McLean), a private school. AR at 11, 61-62.

Plaintiffs then sought a due process hearing and an order requiring the District to pay for D.K.'s tuition at McLean. On May 9, 2007 a Hearing Officer found: D.K. was a student with special education needs; the District had denied D.K. a FAPE; and D.K. was making progress at McLean. AR at 59-69. Accordingly, the Hearing Officer determined that McLean was a proper placement since it offered "full-time special education in a modified general education environment, " and ordered the District to fund D.K.'s education at McLean. AR at 67-68. D.K.'s placement setting was designated as "out of general education;" his parents did not object. AR at 11. The District complied and maintained D.K.'s placement at McLean through the end of the 2011-2012 school year.

The District did not monitor D.K.'s progress at McLean from 2007-2010. A.R. at 7. Then, in the spring of 2010, the District told Plaintiffs that D.K.'s IEP had expired and that updated evaluations were needed for a new IEP. AR at 7. Plaintiffs hired Dr. William Stixrud to evaluate D.K. He confirmed that D.K. is very bright with significant cognitive, academic, social, and emotional challenges. AR at 90. Dr. Stixrud recommended continued placement at McLean because D.K. would be in a small structured classroom and he would be exposed to a demanding academic curriculum and other bright students, while receiving necessary support. Id.

Plaintiffs forwarded the report and recommendation to the District in February 2011, but the District took no action. AR at 106, 121-24. In September 2011, Plaintiffs submitted a proposed IEP, developed by their educational consultant and staff at McLean. AR at 126-30. The District determined that it needed additional evaluations and it needed to speak to Dr. Stixrud about his evaluation. AR at 134-40.

In December 2011, a speech-language pathologist evaluated D.K. She determined that D.K. needed speech-language services in order to assist him with communication deficiencies and behavior support to help him with his anxiety and frustration over his inability to express himself easily. AR at 159-178. D.K.'s out of school therapist believes that D.K. has fluctuating anxiety related to auditory sensing and processing. AR at 16.

An IEP meeting was convened on March 1, 2012, and a multi-disciplinary team found that D.K. was eligible for services as a student with Multiple Disabilities. AR at 213-37. On March 15, 2012, another IEP meeting was held to review a draft IEP. At this meeting, the District informed D.K.'s parents that the school system would not be able to continue D.K.'s placement at McLean because it lacked the necessary Certificate of Approval from the Office of the State Superintendent of Education. AR at 14, 261. The District referred Plaintiffs to Kingsbury Day School and Harbour School, both private schools that provide full-time self-contained special education services to students with special education needs. AR at 276. The team agreed to reconvene several weeks later in order to permit Plaintiffs time to review the draft IEP.

Plaintiffs visited both Kingsbury and Harbour and concluded that their programs were not desirable because they served only disabled students and their curricula were not sufficiently rigorous. AR at 276. D.K. feared leaving his social relationships at McLean and was concerned about the noise level at Kingsbury. AR at 16, 536-37. In August 2012, the IEP team reconvened to finalize the IEP and placement for the 2012-2013 school year. AR at 292-93. The new IEP required D.K. to receive specialized instruction for 27.5 hours per week, speech and language services for one hour per week, and behavioral support services for 1 hour per week; each was required to be provided outside a general education setting. AR at 343. Despite Plaintiffs' insistence that these services be ...

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