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K.E. v. District of Columbia

United States District Court, District Circuit

January 23, 2014

K.E., et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON United States District Judge

Plaintiffs Jane Leggett, in her own right and on behalf of her daughter, K.E., bring claims under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. §§ 1400-1491 (2012), alleging that the District of Columbia failed to: (1) provide K.E. with a free appropriate public education, (2) order an appropriate program and placement, and (3) render a proper decision during the administrative proceedings. Complaint for Declaratory and Injunctive Relief (“Compl.”) ¶¶ 94-100. Currently before the Court are the parties’ cross motions for summary judgment. After careful consideration of the parties’ submissions and the administrative record in this case, [1] the Court concludes for the reasons below that it must grant the defendant’s motion for summary judgment.

I. Statutory Background

Under the IDEA, states and territories, including the District of Columbia, that accept federal educational funds must provide a free appropriate public education (“FAPE”) to students with disabilities residing within their borders. See 20 U.S.C. § 1412(a)(1)(A). The IDEA defines a FAPE as an education which is “[(A)] provided at public expense, under public supervision and direction, and without charge; (B) meet[s] the standards of the State educational agency; (C) include[s] an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) [is] provided in conformity with the individualized education program.” Id. § 1401(9). Once a student is deemed eligible to receive services under the IDEA, a team which includes the parent or parents of the student, certain teachers, and a representative of the local educational agency develops an individualized education program (“IEP”) for the student in accordance with the requirements of the IDEA. Id. §§ 1414(d)(1)(A), (B). In addition to developing the IEP, the student’s team determines an appropriate educational placement for the student. See id. § 1414(e). The statute requires that “[a]t the beginning of each school year, each local educational agency, State educational agency, or other State agency . . . shall have in effect, for each child with a disability in the agency’s jurisdiction, an [IEP] . . . .” Id. § 1414(d)(2)(A).

The IDEA provides that a parent may submit a complaint to an educational agency “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” and receive a hearing on the complaint conducted by an independent hearing officer. Id. §§ 1415(b)(6)(A), (f). The IDEA provides that when a parent alleges a procedural violation,

a hearing officer may find that a child did not receive a [FAPE] only if the procedural inadequacies: (i) impeded the child’s right to a free appropriate public education; (ii) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parents’ child; or (iii) caused a deprivation of educational benefits.

Id. § 1415(f)(3)(E). A party who is dissatisfied with the decision of the hearing officer may file a civil action in federal district court seeking review of the hearing officer’s decision. Id. § 1415(i)(2)(A). If the hearing officer or district court determines that the agency failed to provide the student with a FAPE, the officer or court may require the agency to reimburse the parents of the child for the cost of enrollment at a private institution. Id. § 1412(a)(10)(C)(ii).

II. Factual Background

K.E. is a seventeen-year-old child who has been deemed eligible to receive services under the IDEA as a student with several emotional disorders. A.R. at 9-10. Testing indicated that K.E.’s verbal abilities are “in the superior range of intelligence, ” A.R. at 127; however, K.E. is diagnosed with a Major Depressive Disorder, a Panic Disorder, a Post-Traumatic Stress Disorder, an Identity Problem, a Reading Disorder, and an Attention Deficit Hyperactivity Disorder. A.R. at 9. As a result of these diagnoses, K.E.’s personal therapist recommends that she be placed in a small, highly-structured therapeutic classroom with a low student to teacher ratio throughout the day as well as given time accommodations on tests and quizzes. Id.

Prior to the 2012-2013 school year, K.E. attended public schools within the District of Columbia Public Schools (“DCPS”) System. A.R. at 6. During the 2011-2012 school year, K.E. attended Wilson Senior High School (“Wilson”) and was enrolled in Advanced Placement (“AP”) English, AP Biology, AP U.S. History, and Honors Pre-Calculus. A.R. at 7. At some point during the 2011-2012 school year, as a result of her various disorders, K.E. “engaged increasingly in self-destructive behaviors, ” was absent from approximately seventy-five percent of her classes, and began failing her classes. A.R. at 7.

In January 2012, K.E.’s mother requested that K.E. be evaluated for special education eligibility.[2] A.R. at 8. DCPS evaluated K.E. in the spring of 2012 and determined that her “social and emotional concerns [were] exerting the most significant impact on her educational functioning.” A.R. at 191. DCPS also determined she met the criteria for a student with an emotional disturbance and was therefore qualified to receive services under the IDEA. Id. DCPS determined further that K.E. would “benefit from behavioral support to address issues related to her anxiety and depression, social skills development and self[-]esteem, and, in light of her executive functioning problems, [she] would require a higher level of adult-provided structure, direction, nurturing[, ] and feedback than is needed by most [s]tudents.” A.R. at 10. An IEP team meeting was held at Wilson on May 22, 2012, to develop K.E.’s IEP. Id.

The IEP Team convened again on both June 7 and 14, 2012, to complete K.E.’s IEP. Id. At the June 7, 2012 IEP meeting (“June 7 meeting”), DCPS presented a nine-page draft IEP to which Ms. Leggett submitted an additional seven pages of suggestions for inclusion into the IEP. A.R. at 228-37. Dr. Peggy Peagler, Wilson’s Special Education Coordinator, testified at the administrative hearing that “based on the pages [Ms. Leggett] submitted to us we went line for line and incorporated it” into the draft IEP during the June 14, 2012 IEP meeting (“June 14 meeting”). A.R. 937. Because K.E.’s IEP was not completed during the June 14 meeting, the IEP team agreed to meet again in late August to finish it. A.R. at 11-12, 697, 705, 983. During June and July Ms. Leggett and her attorney made telephone calls and sent emails to DCPS to schedule a meeting to complete K.E.’s IEP, but DCPS did not respond and the meeting never occurred. A.R. at 11-12.

During the summer of 2012, the plaintiffs applied for admission to one private special education school located within the District of Columbia, but K.E. was not admitted. A.R. at 263. The plaintiffs also applied for K.E.’s admission to The Grier School (“Grier”), an all-girls residential private school located in central Pennsylvania. A.R. at 10. At Grier, all of the core classes are taught in a general education setting by teachers who are not certified in special education. A.R. at 11. These classes are comprised of, at most, fourteen students per class. Id. Less than one percent of the students enrolled in Grier have IEPs. Id. “Grier does not have an Office of the State Superintendent of Education Certificate of Approval for nonpublic special education schools and programs[] serving students with disabilities funded by the District of Columbia, ” id., and is not primarily a school for children with learning or emotional issues, A.R. at 709. On August 6, 2012, after being informed that K.E. would be admitted to Grier, the plaintiff withdrew K.E. from Wilson and notified DCPS, through counsel, that she intended to enroll K.E. at Grier and seek public funding to pay for the costs of K.E.’s attendance at Grier. A.R. at 11. The plaintiff then filed a due process complaint on August 17, 2012, A.R. at 12, and on August 29, 2012, an unsuccessful “resolution session” was held, A.R. 12.

Classes began at Wilson on August 27, 2012, and K.E.’s IEP was completed two weeks later on September 11, 2012.[3] A.R. 309. K.E. never attended classes at Wilson during the 2012-2013 school year; instead, she began school at Grier when classes commenced on September 6, 2012. A.R. 13. Although K.E. did not have an IEP at Grier, A.R. at 12, she was provided learning assistance and academic support through Grier’s Learning Skills Program, A.R. at 13. K.E. has attended her classes and performed well while ...


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