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Davis v. District of Columbia

United States District Court, District of Columbia

March 23, 2017

LOUISE DAVIS, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG United States District Judge.

         Almost every American child goes through the ordeal of starting at a new school at least once in her lifetime. Yet the fact that the experience is common does not make it less nerve-racking or daunting - for parent and student alike. In this case, Plaintiff Louise Davis sent her daughter N.D., a student who had since preschool benefited from special-education interventions, to a public charter school located here in Washington at the beginning of the fourth grade. After a few months, that new school reduced N.D.'s services. By the end of the academic year, it found that she was no longer disabled. And following that decision, the school refused to test her for additional categories of disabilities. Having lost her administrative challenge to those determinations, Davis has now, pursuant to the Individuals with Disabilities Education Act, brought this action against Defendant District of Columbia.

         As is customary in IDEA cases, the Court reviews the administrative ruling following summary-judgment cross-motions. Because that decision was fatally imprecise as to whether N.D. had a particular disability and erred in concluding that she did not require additional assessments, the Court will grant a segment of Plaintiff's Motion. In doing so, it remands to the hearing officer on that disability issue and orders that Defendant provide further testing.

         I. Background

         This case concerns the education of N.D., a child born in 2004, and her transition to KIPP DC: WILL Academy Public Charter School during the 2013-2014 academic year. Before the Court delves any farther into the administrative record (for short, A.R.), see ECF Nos. 9-10, it assembles the statutory armature on which this narrative rests.

         A. IDEA Statutory Framework

         The Individuals with Disabilities Education Act has, since 1975, been a pillar of the special-education landscape. The Act attempts “to ensure that all children with disabilities have available to them a free appropriate public education” and “that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400(d)(1).

         To advance these goals, IDEA requires state and local educational agencies that seek federal funding to first adopt procedures for securing appropriate services for students with disabilities. Id. §§ 1412, 1413. Here, the school district - D.C. Public Schools - is the District's sole local educational agency, though DCPS and KIPP have collaborated on various special-education choices. See 5-E D.C. Mun. Regs. §§ 923.3(a), 924.3; B.R. ex rel. Rempson v. District of Columbia, 802 F.Supp.2d 153, 160-61 (D.D.C. 2011) (describing how public charter schools may elect to be D.C. public schools for IDEA purposes).

         The Act's process begins with identifying a child who may have a disability and then evaluating that impairment. See 20 U.S.C. § 1401(3)(A) (defining “child with a disability”); id. § 1414 (outlining procedures for evaluations and eligibility determinations); 34 C.F.R. §§ 300.301-.311 (similar). If she indeed exhibits a disability in need of remediation, then she is eligible for special-education services. As not all disabilities are permanent or even manifest, the school district generally must reevaluate a child's status at least once every three years and at most annually. See 20 U.S.C. § 1414(a)(2)(B).

         Once found eligible, children with disabilities are entitled to an individualized educational program. The IEP - a document that teachers reference in classroom instruction - “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.” Honig v. Doe, 484 U.S. 305, 311 (1988); see 20 U.S.C. § 1414(d)(1)(A). To draft it, the school district convenes a group - typically prior to the academic year - consisting of the parents, a special-education teacher, a school-district representative, and possibly other specialists. See 20 U.S.C. § 1414(d)(1)(B). Although the district may subsequently modify that IEP at any time if it notifies the parents and explains the changes in writing, id. § 1415(b)(3), (c)(1), it must revise the Program at least yearly in light of academic progress, changes in needs, and other recent educational or medical information. Id. § 1414(d)(4)(A).

         Aside from its process-based guarantees, IDEA sets a “basic floor of opportunity” for what substantively counts as an appropriate education. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982). To pass muster, the school district must, at a minimum, “provid[e] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Id. at 203; accord Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005).

         Parents who object to the district's “identification, evaluation or educational placement” of their child or to its “provision of a free appropriate public education” may request a due-process hearing. See 20 U.S.C. § 1415(b)(6). At that hearing, headed by an impartial hearing officer, the parties may present evidence and elicit expert testimony about the child's educational needs. Id § 1415(f), (h). A party aggrieved by the hearing officer's decision (HOD) may then sue in state or federal court. Id § 1415(i)(2). In reviewing the HOD, a court has broad remedial authority to grant “such relief as the court determines is appropriate.” Id § 1415(i)(2)(C)(iii); see Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993).

         Having set out the statutory framework, the Court next details the expansive factual background of this case and concludes with the procedural path of Plaintiff s challenge.

         B. N.D.'s Educational History

         The present season of N.D.'s education involves, in one way or another, each step of this process. The Court recaps her early academic history and then describes her experience transitioning to KIPP in the fourth grade - that is, her 2013 IEP, Revised 2013 IEP, and subsequent removal from special education altogether, and the events that followed.

         1. Early Education

         N.D. has been raised by her mother in Southeast Washington since her birth in 2004. See A.R. (December 2010 Psychiatric Report) at 30, 34. In far from a normal delivery, Davis gave birth to N.D. two months early after falling down a set of stairs. Id at 32. In addition to several medical issues that ensued, the child missed developmental milestones, only beginning to walk at around the age of two and talk at three or four. Id.

         N.D. attended Eagle Academy Public Charter School from prekindergarten (at three years old) until the third grade. See AR (May 2014 Psychological Report) at 158. There, her school implemented IEPs and special-education services to compensate for her diagnosed learning difficulties, developmental delays, and Attention Deficit Hyperactivity Disorder. See 2010 Psych. Report at 34. In her early years at Eagle Academy, specialists would pull N.D. out of the general-education classroom setting for 10 hours per week of specialized instruction and for other therapy. See 2014 Psych. Report at 158. Even with these interventions, she was held back and repeated the first grade. See A.R. (May 2011 Educational Report) at 47.

         In December 2010, during her second stint in first grade, the school referred her for psychiatric testing. Following clinical interviews, she was again diagnosed with ADHD, as well as with acute Post-Traumatic Stress Disorder and an unspecified anxiety disorder arising out of a public-bus accident after which she and other passengers were hospitalized. See 2010 Psych. Report at 30-31, 36. Her psychiatrist also expressed concern over developmental delays and advised Eagle Academy to investigate whether N.D. “does in fact have a Learning Disability” so that Davis could “ensur[e] that the current level of services she receives via her IEP is adequate and appropriate” and “advocat[e] for more intensive services” if needed. Id. at 37.

         Later testing confirmed these suspicions. At the end of first grade, in May 2011, school assessments verified that N.D. displayed serious academic deficits - e.g., “significant weakness in broad written language” and “vocabulary and language deficits” - that required “special education remediation . . . as a learning disabled student” and “speech and language services.” 2011 Educ. Report at 49; A.R. (May 2011 Speech-Language-Impairment Report) at 56-57. The record does not reflect whether N.D.'s subsequent second-grade 2011 IEP formally identified her as learning disabled. A later IEP indicates that it likely did, however, as throughout the second grade she received an increased 15 hours per week of specialized instruction outside the general-education classroom. See A.R. (2012 IEP) at 59, 70.

         As to N.D.'s third-grade history, the 2012 IEP lists her primary disability as a “Specific Learning Disability.” Id. at 59. IDEA defines that impairment as follows:

The term “specific learning disability” means a disorder in 1 or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.

20 U.S.C. § 1401(30)(A). Federal rules then sketch out what may qualify, and D.C. regulations shade in the details. See 34 C.F.R. §§ 300.307, .309(a); 5-E D.C. Mun. Regs. §§ 3000, 3006.4. (Of course, this diagnosis did not necessarily mean that a Specific Learning Disability was N.D. only disorder, as services are available for a wide array of disabilities.) Although relevant, the Court will not turn its microscope to these minutiae yet.

         Suffice it to say that, on account of her disorder, Eagle Academy continued to pull her out of the classroom for services. In particular, her 2012 IEP mandated 10 hours per week of specialized instruction, 30 minutes per week of speech therapy, and another 30 minutes per week of behavioral support. See 2012 IEP at 64-65. It additionally provided testing accommodations - e.g., extended time, frequent breaks - and other instructional supports. Id. at 66, 68.

         2. 2013 IEP (Fourth Grade)

         The present dispute arises out of the IEP prepared in May 2013 in anticipation of N.D.'s entry into fourth grade. See A.R. (2013 IEP) at 78. Few new developments had occurred in the course of the third grade: She continued psychiatric treatment, where her therapist confirmed her ADHD, PTSD, and learning disability. See A.R. (2012 Treatment Plan) at 73.

         Unsurprisingly then, not much about the 2013 IEP differed either. That IEP, drafted by Eagle Academy, listed N.D. as having a Specific Learning Disability. See 2013 IEP at 78. It continued to require, weekly, 10 hours of specialized instruction, 30 minutes of speech therapy, and 30 minutes of behavioral-support services, as well as testing accommodations. Id. at 84, 86. The only notable alteration was that, instead of being pulled out of the classroom for these interventions, the 2013 IEP kept her in the classroom for push-in services. Id. at 84.

         Having spent her entire academic life in the same school and with a relatively constant educational program, that summer N.D. braved the transition from Eagle Academy to KIPP.

         3. Revised 2013 IEP (Fourth Grade)

         An IEP adjustment then occurred in November 2013, a few months after the start of the KIPP school year. At that time, KIPP convened a meeting to modify the (May) 2013 IEP. See A.R. (November 2013 Revised IEP) at 96. Although a few pages of the final Revised 2013 IEP are missing, later documentation shows that it reduced N.D.'s special-education hours. Notably, it required only 7.5 hours per week of specialized instruction (down from 10 hours), 120 minutes per month of speech therapy (minimally reduced from 30 minutes per week), and 20 minutes per month of behavioral support (down from 30 minutes per week). See A.R. (March 2014 IEP Amendments) at 141 (minor amendment incorporating Revised 2013 IEP); A.R. (HOD) at 7-8.

         Contemporaneous standardized testing shows that, at that time, N.D.'s scores for mathematics and reading fell within the 39th and 48th percentile, respectively, slightly exceeding the district-wide average. See A.R. (NWEA Assessments) at 272. And, although grading is a fickle beast, her first-quarter grades stood at B, B, and A- in her main courses (general knowledge, literacy, math), enough to make the honor roll. See A.R. (2013 Report Card) at 107. At the same time, her still-incomplete second-quarter grades stood at A-, B, and C in those same subjects. See A.R. (November 2013 Grades) at 104. (Eventually, she would receive a B in each course. See 2013 Report Card at 106.)

         Following her Revised 2013 IEP, N.D. maintained honor-roll status throughout the third quarter, and her standardized test scores appeared to improve. See NWEA Assessments at 272; 2013 Report Card at 105.

         4. May 2014 Exit from Special Education

         The fourth grade, however, would prove to be a watershed school year for other reasons. As it had been three years since N.D.'s disability was last mulled, she was due for a reevaluation. See 20 U.S.C. § 1414(a)(2)(B) (requiring reevaluation at least once every three years). Those wheels began turning in April 2014. It naturally started with KIPP's analysis of how N.D. had fared in the fourth grade under her Revised 2013 IEP. See A.R. (April 2014 Data Analysis).

         From the school's point of view, N.D. had made broad strides - e.g., in expressive and receptive language and in emotional, social, and behavioral development. Id at 150-51. Not unqualifiedly, however. For instance, the school reported that for math “[t]he growth [N.D.] made from her Fall to Winter [test] score was not adequate growth and did not improve her percentile range.” Id at 147. The analysis also suggested that “[N.D.] performs in the Low Average range in Literature and Foundations/Vocabulary and would benefit from additional support in those areas” and “continues to struggle with written directions for curriculum based activities.” Id at 148, 150. All in all, though, KIPP's internal analysis skewed optimistic, noting that she had made “expected progress” and “adequate growth” following certain services. Id at 148, 150-52 (noting she was “making gains” and “progressing steadily”).

         DCPS also supplied a new battery of testing. A school-district psychologist first examined N.D., incorrectly observing that she had “no reported grade retentions.” 2014 Psych. Report at 158. The clinician then found that her “cognitive abilities are in the ‘Low Average'” range, id at 163-64, and at times her achievement was almost two years below age level. See A.R. (April 2014 Woodcock-Johnson III Scores) at 155. But because information suggested that “with reasonable general education options, interventions, adaptation and other general education strategies . . . [N.D.] is able to access her general education expectations, ” the report recommended “exiting [N.D.] from the Specific Learning Disability (SLD) category.” 2014 Psych. Report at 166. A separate specialist concluded that, though she “would benefit from a customized set of strategies that should be incorporated in her overall educational plan, ” she did not have a speech-language impairment. See A.R. (May 2014 Speech-Language-Impairment Report) at 179-80.

         After reviewing this information, KIPP exited N.D. from special education in May 2014, concluding, in part, that she longer met “the required criteria for specific learning disabilities.” A.R. (May 2014 Eligibility Form) at 186. Although she satisfied two of three “Discrepancy Model” prerequisites, KIPP found that she had not met its final criterion - namely, that

[t]he student demonstrates a discrepancy between achievement (as measured by the academic evaluation) and measured ability as measured by the intellectual evaluation) of two years below a child's chronological age and/or at least two standard deviations below the child's cognitive ability as measured by appropriate standardized diagnostic instruments and procedures.

Id at 187. In other words, because N.D. did not experience a gap between achievement and cognition of two years or standard deviations, KIPP would no longer guarantee special-education interventions or other accommodations starting in the upcoming academic year.

         5. Continued Discussions in Fifth Grade

         Discussions about N.D.'s education continued during the fifth grade. At Davis's request, by November 2014, KIPP had agreed to fund two third-party, independent educational evaluations (IEEs): a psychological review and a speech-language assessment. See A.R. at 216; see also 34 C.F.R. ยง 300.502(b)(1) (providing right to IEE if parent disagrees with school's evaluation). When ...


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