United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING
DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS United States District Judge.
Carolina Lopez-Young brings this action on behalf of herself
and her daughter R.L. under the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400 (the
“IDEA”), against Defendant the District of
Columbia (the “District”). Ms. Lopez appeals from
an administrative decision that, in relevant part, found that
the District of Columbia Public Schools (“DCPS”)
denied R.L. a free appropriate public education
(“FAPE”) as required by the IDEA, but declined to
order the relief requested by Ms. Lopez. Before the Court are
the parties' cross-motions for summary judgment.
See Pl.'s Mot. Summ. J., ECF No. 10; Def.'s
Cross-Mot. Summ. J. & Opp'n Pl.'s Mot. Summ. J.
(“Def.'s Cross-Mot. Summ. J.”), ECF No. 13.
The motions are ripe and fully briefed. For the reasons
explained below, the Court will grant in part and deny in
part Ms. Lopez's motion and deny the District's
motion. The Court will remand this case to the Hearing
Officer with instructions to craft an appropriate award of
compensatory education and to order any assessments he
determines are necessary to that process.
Court begins by providing an overview of relevant portions of
the IDEA's statutory framework before turning to the
factual background and procedural history of this case.
the IDEA, “every child with a disability in this
country is entitled to a ‘free appropriate public
education, ' or FAPE.” Leggett v. District of
Columbia, 793 F.3d 59, 62 (D.C. Cir. 2015) (quoting 20
U.S.C. § 1400(d)(1)(A)). The “primary
purpose” of the Act is “to ensure that all
children with disabilities have available to them a[n] . . .
education that emphasizes special education and related
services designed to . . . prepare them for further
education, employment, and independent living.”
Id. at 63 (quoting 20 U.S.C. § 1400(d)(1)(A))
(alteration in original). “A free appropriate public
education entitles ‘each child with a disability'
to an ‘individualized education program' that is
tailored to meet his or her unique needs.” Henry v.
District of Columbia, 750 F.Supp.2d 94, 96 (D.D.C. 2010)
(quoting 20 U.S.C. §§ 1414(d)(1)(A)-(2)(A)).
individualized education program (the “IEP”) is
the “primary vehicle” for implementing the IDEA.
Lesesne ex rel. B.F. v. District of Columbia, 447
F.3d 828, 830 (D.C. Cir. 2006). The IEP is “[p]repared
at meetings between a representative of the local school
district, the child's teacher, the parents or guardians,
and, whenever appropriate, the disabled child.”
Id. It “sets out the child's present
educational performance, establishes annual and short-term
objectives for improvements in that performance, and
describes the specially designed instruction and services
that will enable the child to meet those objectives.”
the parents of a student with a disability are dissatisfied
with a school district or agency's “identification,
evaluation, or educational placement of the child, or the
provision of a free appropriate public education to such
child, ” 20 U.S.C. § 1415(b)(6), the IDEA entitles
them to present their arguments in an “impartial due
process hearing, ” id. § 1415(f). If a
hearing officer finds that a school district or agency denied
a child a FAPE, he or she may award, among other remedies,
compensatory education, which is “educational services
. . . to be provided prospectively to compensate for a past
deficient program.” Reid ex rel. Reid v. District
of Columbia, 401 F.3d 516, 522 (D.C. Cir. 2005)
(quoting G. ex rel. RG v. Fort Bragg Dependent
Schs., 343 F.3d 295, 308 (4th Cir. 2003)). Any party
aggrieved by the hearing officer's determination may
bring a civil action in state or federal court. See
Id. § 1415(i)(2).
the daughter of Ms. Lopez, is a minor who lives in the
District of Columbia with her mother. See AR 7;
Compl. ¶¶ 5-6, ECF No. 1. At the time of the due
process hearing, R.L. was 16 years old and in the 8th grade.
See AR 7. R.L. moved to the United States from El
Salvador in the middle of the 2012-2013 school year.
See AR 7. R.L. spoke limited English when she
arrived in the United States, and she is not fluent at this
time. See AR 7. An assessment of R.L.'s English
language abilities in late 2012 found that her skills were in
the lowest of five possible levels of proficiency.
See AR 7. Following R.L.'s arrival in the United
States, DCPS intended to place her in an 8th grade class
based on her English language abilities, but she was instead
placed in a 6th grade class at Paul Public Charter School
because of space limitations. See AR 8.
R.L.'s earliest interactions with DCPS, Ms. Lopez was
concerned that her daughter was not receiving the support she
needed, and Ms. Lopez repeatedly sought to have R.L.
evaluated to determine whether special education services
were appropriate. See AR 7-8. Specifically, an
interview form created by DCPS and dated December 13, 2012
notes, “[Ms. Lopez] suggests an evaluation for special
education services. She suspects that her child suffers from
learning disabilities.” See AR 7-8, 22.
Handwritten notes, apparently recorded by a DCPS employee in
the Office of Bilingual Education during the 2012-2013 school
year, similarly indicate that “[Ms. Lopez] suspects
that . . . this child needs special [education] services for
learning disabilities.” See AR 8, 26. Ms.
Lopez also made oral requests that the school perform a
special education evaluation of R.L. See AR 8.
R.L.'s first year as a student at Paul Public Charter
School, she received strong grades. See AR 8, 36-37.
R.L.'s grades raised questions for Ms. Lopez, who had
concerns about her daughter's ability to retain
information and to understand math. See AR 8. The
following year, R.L.'s 7th grade grades were less
consistent, including some failing grades. See AR
9. R.L. was required to attend summer school. See AR
9. With one exception, standardized tests administered while
R.L. was in 7th grade placed her proficiency in various
subjects at “Below Basic.” See AR 9.
Nevertheless, R.L.'s English improved and many of her
teachers gave her “very positive comments.”
See AR 9, 40-49.
the involvement of Ms. Lopez's counsel, DCPS acknowledged
on January 22, 2015 that it had received a request to
evaluate R.L. See AR 9, 167. DCPS intended to
complete an evaluation of R.L. within 45 days, but the
evaluation was not completed until approximately 120 days
later. See AR 9, 167, 474. Counsel to Ms. Lopez
requested authorization for an independent educational
evaluation, but the request was denied. See AR 9,
167, 466-68, 471- 473. On May 8, 2015, Samantha Shands, a
certified school psychologist at DCPS, completed a
Comprehensive Psychological Evaluation of R.L. See AR
9, 474-97. The evaluation, which was conducted in both
English and Spanish, found that R.L.'s Broad Reading,
Broad Math, and Broad Written Language skills “all fell
within the Very Low Range” based on the results of the
Woodcock-Johnson III assessment. See AR 9, 474, 495.
Similarly, the WISC-IV assessment suggested that R.L.'s
intellectual functioning fell in the “extremely low
range.” See AR 9-10, 495. Both R.L.'s
Working Memory and Perceptual Reasoning were also determined
to be in the “extremely low range.” See
AR 10, 495.
19, 2015, R.L. was found eligible for special education
services as a student with a “Specific Learning
Disability.” See AR 10. At the time of the due
process hearing, an IEP had not been developed for R.L.
Administrative Proceeding and the Hearing Officer's
January 29, 2015, Ms. Lopez filed a due process complaint
claiming, among other things, that DCPS denied R.L. a FAPE.
See AR 91-95. Plaintiff filed an amended due process
complaint on March 2, 2015. See AR 210. The amended
due process complaint claimed that DCPS denied R.L. a FAPE in
a variety of ways, including: (1) by refusing to evaluate
R.L. for special education and related services for over two
years, (2) by failing to identify R.L. as a child with a
disability, and (3) by failing to provide an IEP once DCPS
suspected R.L. was a child with a disability. See AR
213-14. The amended due process complaint also claimed that
DCPS violated Ms. Lopez's procedural rights by refusing
to provide a Prior Written Notice after Ms. Lopez initially
requested an evaluation, and that Paul Public Charter School
failed to communicate with DCPS regarding the fact that R.L.
was suspected of being a child with a disability. See
other remedies, Ms. Lopez's amended due process complaint
requested that the Hearing Officer find that DCPS denied R.L
a FAPE, order DCPS to “do a compensatory education
study” or fund such a study, and award compensatory
education. See AR 215. In the alternative, Ms. Lopez
requested a bifurcated hearing that would allow the Hearing
Officer to consider whether DCPS denied R.L. a FAPE in one
hearing, and then hold a second hearing to determine an award
of compensatory education. See id.; see
also AR 95 (requesting a bifurcated hearing in the
original due process complaint). The Hearing Officer denied
the request for a bifurcated hearing, instead requiring Ms.
Lopez to file a compensatory education plan seven days prior
to the date the parties' disclosures were due.
See AR 413. The parties' disclosures were due on
May 14, 2015, meaning that Ms. Lopez's compensatory
education plan was due on May 7, 2015. See Id. As
previously stated, DCPS's evaluation of R.L., was
completed on May 8, 2015-the day after Ms. Lopez's
compensatory education plan was due. See AR 9,
Hearing Officer's Amended Prehearing Order appears to
address this timing problem by noting that Ms. Lopez's
“request for compensatory education will be considered
during the due process hearing, except to the extent that it
related to any evaluations(s) not completed in time.”
AR 412 n.3. The Hearing Officer decided that
“[c]ompensatory education relating to any such
evaluation(s) is reserved.” Id. Nevertheless,
the Amended Prehearing Order also stated that, “[w]ith
regard to any remaining request for compensatory education,
[Ms. Lopez's] counsel was put on notice that, at the due
process hearing, [Ms. Lopez] must introduce evidence
supporting the requested compensatory education.”
hearing on the amended due process complaint was held on May
21 and May 26 of 2015 before Hearing Officer Keith L. Seat
(the “Hearing Officer”). See AR 4. At
the hearing, R.L. and Ms. Lopez testified during
Plaintiff's case in chief. See AR 5. DCPS
presented no witnesses. See AR 5. The Hearing
Officer issued his determination on June 4, 2015.
See AR 4- 16. The Hearing Officer determined that
DCPS's “failure to evaluate for two years is
certain to have deprived [R.L.] of educational benefit and
impeded her right to a FAPE.” AR 13. Specifically, the
Hearing Officer concluded that DCPS's initial
“failure to evaluate [R.L.] after receiving [Ms.
Lopez's] request on” December 13, 2012 constituted
a denial of a FAPE. Id.
finding that DCPS failed to provide R.L. with a FAPE, the
Hearing Officer declined to award compensatory education.
See AR 14-15. The Hearing Officer explained that the
initial evaluation of R.L. “took much longer to conduct
than intended” meaning that the “level of special
education services needed by [R.L.] had not been determined
by the time of the due process hearing.” Id.
Thus, the Hearing Officer concluded, “compensatory
education could not be awarded” at that time. AR 15. In
light of these facts, and the fact that Ms. Lopez did not
file a compensatory education plan in advance of the hearing
as required by the Amended Prehearing Order, the Hearing
Officer ordered that “all claims for compensatory
education . . . are reserved for a further proceeding, as
necessary.” AR 16.
Hearing Officer also rejected Ms. Lopez's request for an
order requiring DCPS to fund an independent compensatory
education evaluation. See AR 15. The Hearing Officer
explained that Ms. Lopez had “not provided any legal
authority or examples in support of a Hearing Officer
Ordering such action.” Id. The Hearing Officer
also suggested that it would not be advisable to “give
such broad discretion to an individual whose selection and
independence would understandably be viewed with
suspicion.” Id. Finally, the Hearing Officer
reasoned that permitting DCPS to develop a compensatory
education plan could be an impermissible delegation of the
Hearing Officer's authority. Id. at 15 & n.41
(citing Reid ex rel. Reid v. District of Columbia,
401 F.3d 516, 521 (D.C. Cir. 2005)).
Proceedings before this Court
Lopez brought this action in September 2015 pursuant to the
IDEA, challenging a portion of the Hearing Officer's
determination. See generally Compl. The Complaint
requests as relief an award of compensatory education to
remedy DCPS's denial of a FAPE, or, in the alternative, a
remand to the Hearing Officer to supplement the record and
award compensatory education. See Id. ¶¶
19-20. The Complaint also seeks an order directing the
District to pay ...