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Lopez-Young v. District of Columbia

United States District Court, District of Columbia

September 29, 2016

DISTRICT OF COLUMBIA, Defendant. Re Document Nos. 10, 13


          RUDOLPH CONTRERAS United States District Judge.


         Plaintiff Carolina Lopez-Young[1] 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.[2] 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.


         The 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.

         A. Statutory Framework

         Under 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)).

         The 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.” Id.

         When 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).

         B. Factual Background

         R.L., 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.[3] See AR 8.

         During 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.

         During 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.[4] 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.

         Following 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.[5] 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.

         On May 19, 2015, R.L. was found eligible for special education services as a student with a “Specific Learning Disability.”[6] See AR 10. At the time of the due process hearing, an IEP had not been developed for R.L. See id.

         C. Administrative Proceeding and the Hearing Officer's Determination

         On 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 id.

         Among 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, 474-97.

         The 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.”[7] 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.” Id.

         A 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.

         Despite 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.

         The 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)).

         D. Proceedings before this Court

         Ms. 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. ΒΆΒΆ 19-20. The Complaint also seeks an order directing the District to pay ...

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