United States District Court, District of Columbia
E. BOASBERG United States District Judge.
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
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.
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.
IDEA Statutory Framework
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).
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).
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).
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).
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).
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).
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.
N.D.'s Educational History
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.
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.
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.
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.
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
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
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
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.
2013 IEP (Fourth Grade)
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.
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.
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.
Revised 2013 IEP (Fourth Grade)
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.
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
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.
May 2014 Exit from Special Education
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).
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”).
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.
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.
Continued Discussions in Fifth Grade
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. § 300.502(b)(1) (providing right to IEE if parent
disagrees with school's evaluation). When ...