United States District Court, D. Columbia.
For DONNA COPELAND, Plaintiff: Douglas Tyrka, LEAD ATTORNEY, TYRKA & ASSOCIATES, LLC, McLean, VA.
For DISTRICT OF COLUMBIA, Defendant: Veronica A. Porter, Victoria Lynne Healy, LEAD ATTORNEYS, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.
CHRISTOPHER R. COOPER, United States District Judge.
Donna Copeland has brought suit under the Individuals with Disabilities Education Act alleging that the District of Columbia Public Schools (" DCPS" ) denied her minor son D.C. a free and appropriate public education (" FAPE" ) by failing to assign him to any school at the beginning of the 2011-2012 school year and eventually placing him in a school that could not meet his educational needs. The hearing officer who adjudicated Copeland's due process complaint at the administrative level found that DCPS denied D.C. a FAPE by initially failing to assign him to a school. But he did not award a remedy for the violation after finding that D.C. had waived any relief by accepting tutoring in connection with the settlement of an earlier administrative complaint. Because the record does not establish that D.C. waived his right to recovery and the record is insufficient to determine whether D.C. received sufficient compensation under the earlier settlement to remedy the violations found by the hearing officer, the Court will remand the case to the hearing officer to make further factual findings.
While the legal issues presented in this case are relatively straightforward, the factual background is anything but. The Court will attempt to summarize the salient facts. At the center of the story is D.C., who at the time of the administrative proceedings was 17 years old and still in the 9th grade. Administrative Record (" AR" ) at 22. D.C.'s experience in the public school system was sadly familiar: chronic truancy, failing grades (he repeated the 9th grade three times), and a range of academic, emotional, and behavioral challenges. Id. at 27. Due to these issues, D.C. received specialized education services under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq., based on an Individualized Education Plan (" IEP" ) developed by DCPS.
A. The 2011 Administrative Complaint and Settlement
In August 2011, D.C.'s father, who has since passed away, filed an administrative complaint against DCPS challenging its alleged failure to update D.C.'s then-existing IEP. AR at 41. DCPS immediately settled the complaint by agreeing to convene an IEP team meeting within 30 days after D.C.'s parents obtained an independent psychological examination of D.C. Id. at 49, 83, 130. After significant delay, D.C.'s parents provided the examination report in March 2012, and DCPS convened the IEP meeting three months later, in June 2012, outside the 30 days agreed to in the settlement. Id. at 137--44.
The day after the IEP meeting, DCPS sent a letter to D.C.'s family authorizing him to receive 150 hours of independent instruction and a combined 60 hours of independent speech and language and behavioral services. Def. Response to Order of the Court, December 5, 2014, Ex. 1 (Compensatory Education Services Authorization Letter). The letter indicated that " these compensatory education services are intended to remediate any educational harm to [D.C.] through today's date [i.e., June 6, 2012]." Id. After receiving the letter, the family's lawyer requested that DCPS amend the quoted language, arguing that the letter was designed only to remediate educational harm to D.C. related to the August 2011 settlement agreement. AR at 155. After DCPS declined to amend the language--which it claimed was " standard" --the lawyer advised DSPS that " we treat this authorization as DCPS' determination of comp[ensatory] ed[ucation] pursuant to the August 30, 2011 [settlement agreement], as that was the requirement at the meeting." Id. at 153. DCPS appears not to have responded further on the issue.
B. The 2011-2012 School Year and 2012 Administrative Complaint
Meanwhile, pending the adjustment of D.C.'s IEP pursuant to the August 2011 settlement agreement, D.C.'s parents sought to enroll D.C. in school for the 2011--2012 school year. That proved difficult to say the least. D.C. first tried to enroll in Eastern High School. AR at 261. After some initial confusion, DCPS informed D.C.'s parents in October 2011 that he was not eligible to attend Eastern. Id. DCPS offered instead to enroll D.C. in either Woodson Senior High or Spingarn Senior High, but D.C. declined to attend either school. Id. at 260--62. Finally, in March 2012, DCPS changed D.C.'s school placement to Anacostia Senior High School. Id. at 108. D.C. enrolled in Anacostia but stopped attending classes within a week. Id. at 113, 405.
In December 2012, D.C.'s mother, Donna Copeland, filed a new administrative complaint alleging IDEA violations related to the 2011--2012 school year. (Recall that the earlier 2011 complaint challenged D.C.'s placement for the 2010-2011 school year.) Copeland's complaint alleged that DCPS denied D.C. a FAPE by (1) delaying the IEP meeting for 90 days after receiving the independent psychological examination in violation of the August 2011 settlement agreement; (2) failing to provide a school location for D.C. from December 2011 to March 2012 (when he was finally assigned to Anacostia); (3) assigning D.C. to Anacostia, which she contended could not meet his IEP; and (4) generally failing to provide adequate special education services for the entire 2011-2012 school year. AR at 201--202.
An administrative hearing was held on February 21, 2013. At the outset of the hearing, opposing counsel debated the scope of the IDEA violations that the June 2012 compensatory education authorization letter was designed to remedy. After some back-and-forth, both sides appear to have agreed that the letter covered the period " November 1,  to March 23, ." AR at 337--38. Based on that understanding, D.C.'s counsel withdrew his second claim--that DCPS had failed to provide D.C. with a school location from December 2011 to March 2012. Id. Near the end of the hearing, however, counsel for DCPS retracted her agreement that the letter only encompassed DCPS's failure to provide a school placement from November 2011 to March 2012, asserting that she had said the letter covered more than that specific date range. Id. at 568-71. Counsel for D.C. naturally responded by requesting permission to renew his second claim, but the hearing officer denied his request. Id. at 572.
Also at the hearing, counsel for D.C. sought to introduce D.C.'s tutor, Christian Roman, as an expert " in compensatory education for students with denials of FAPE." AR at 456. The hearing officer declined to admit Roman as an expert, however, stating that he was " not familiar with such an expertise." Id. at 457. But Roman was permitted to testify based on his personal experience and opined that Anacostia was not an appropriate placement for D.C. because it ...