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D.K. v. District of Columbia

United States District Court, District Circuit

October 2, 2013

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


ROSEMARY M. COLLYER, United States District Judge

Paul and Melissa Klein, in their own right and on behalf of their minor child D.K., filed this appeal of a Hearing Officer Determination, alleging that the District of Columbia denied D.K. a free appropriate public education in violation of the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq., by refusing to continue D.K.’s placement at the McLean School of Maryland (McLean) and recommending transfer to Kingsbury Day School. The recommended move from Mclean to Kingsbury did not constitute a change in D.K.’s “educational placement” because this phrase is properly understood to mean an educational program and not a location. Accordingly, the District’s motion for summary judgment will be granted, and Plaintiffs’ cross 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). An IEP must include a statement of needs, services, learning aids, and programs that should be made available to the student. Id. § 1414(d). Local school officials utilize the IEP to assess the student’s needs and assign a commensurate learning environment. See Id . § 1414(d)(1)(A). “Once the IEP is developed, the school system must provide an appropriate placement that meets those needs and, if an appropriate public placement is unavailable, the school system must provide an appropriate private placement or make available educational-related services provided by private organizations to supplement a public placement. Petties v. District of Columbia, 238 F.Supp.2d 114, 116 (D.D.C. 2002) (citing 20 U.S.C. § 1412(a)(10); 34 C.F.R. §§ 300.349, 300.400–402).

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). Plaintiffs here are parents who are dissatisfied with an HOD, and they have filed this appeal.

B. Facts

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 McLean, a private school. Id. at 11, 61-62. McLean offers “full-time individual instruction in a full-time mainstream setting.” Id. at 385, 388.

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. Id. at 59-69. D.K.’s placement setting was designated as “out of general education, ” and his parents did not object. Id. at 11. Despite the fact that D.K.’s placement was “out of general education” and McLean is not a special education school, the Hearing Officer determined that McLean was a proper placement and ordered the District to fund D.K.’s education at McLean. Id. at 67-68. As a result, the District, via its component District of Columbia Public School System (DCPS), maintained D.K.’s placement at McLean through the end of the 2011-2012 school year.[2]

DCPS did not monitor D.K.’s progress at McLean from 2007-2010. Id. 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. Id. at 7. Plaintiffs hired Dr. William Stixrud to evaluate D.K. for the purpose of providing input for the new IEP. He confirmed that D.K. is very bright with significant cognitive, academic, social, and emotional challenges. Id. at 90. Dr. Stixrud recommended continued placement at McLean because, although D.K. would not be in a special education environment, he would be in a small, structured classroom, he would be exposed to a demanding academic curriculum and other bright students, and he would receive necessary support. Id.

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

In December 2011, a DCPS 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. Id. at 159-178. D.K.’s out-of-school therapist believes that D.K. has fluctuating anxiety related to his difficulty with auditory sensing and processing. Id. 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. Id. 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 D.C. Office of the State Superintendent of Education. Id. 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. Id. at 276. The team agreed to reconvene several weeks later 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 serve only disabled students and their curricula are not sufficiently rigorous. Id. at 276. D.K. feared leaving his social relationships at McLean and ...

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