United States District Court, District of Columbia
RUDOLPH CONTRERAS United States District Judge.
in Part and Denying in Part Plaintiffs' Motion for
Summary Judgment; Granting in Part and Denying in Part
Defendant's Motion for Summary Judgment; Denying as Moot
Plaintiffs' Motion to Place Case in Abeyance; Denying
Parties' Motion for Supplemental Briefing; Denying
Plaintiffs' Motion for Supplemental Briefing
student, and his parents (Plaintiffs) filed this action against
the District of Columbia (the District) challenging a hearing
officer's determination that J.W. was not denied a free
and appropriate public education (FAPE) pursuant to the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
§ 1400 et seq. Both parties filed cross-motions
for summary judgment. The Court agrees that J.W. was denied a
FAPE because his IEP contained insufficient specialized
instruction and the District did not identify a school
capable of implementing the IEP. However, the Court rejects
Plaintiffs' other arguments and will thus grant in part
and deny in part Plaintiffs' and the District's
IDEA provides that “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)). “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.
individualized educational program (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) (quoting Honig v.
Doe, 484 U.S. 305, 311 (1988)). The public school
district develops the IEP in collaboration with the
student's teachers and parents. Id. The IEP
“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. (quoting
Honig, 484 U.S. at 311). When parents disagree with
the school district and believe that the IEP does not provide
their child with a FAPE, they first challenge the IEP through
an “impartial due process hearing” in front of a
hearing officer. 20 U.S.C. § 1415(f). The hearing
officer has access to a variety of remedies. If the parents
or the District disagree with the outcome of the due process
hearing, either may appeal the determination to state or
federal court. See Id. § 1415(i)(2).
a student residing in the District of Columbia who has been
diagnosed with Autism Spectrum Disorder and Specific Learning
Disorders in reading, math, and writing, as well as learning
delays in speech. Compl. ¶ 6, ECF No. 15-1;
Administrative Record (AR) 217.During kindergarten and first
grade, J.W. attended Key Elementary School, a public school
run by the District. AR 204-05. The District recognized that
J.W. was eligible for services under the IDEA, and developed
an IEP for him. During these years, Plaintiffs became
concerned that the District was not providing J.W. with
adequate services and eventually rejected the District's
proposed May 2014 IEP “because it [was] based on
inadequate information and [was] not sufficient to meet
[J.W.'s] needs.” AR 282.
2014-2015 school year-or J.W.'s second grade-Plaintiffs
placed J.W. at Katherine Thomas School (KTS), a private
school offering special education services. See AR
427, 1109. During that year the District continued to revise
J.W.'s IEP and issued revised IEPs in June and September
of 2014. Plaintiffs challenged the three 2014 IEPs
in a due process hearing held in April and May of 2015. AR
611-24. The hearing officer rejected two of Plaintiffs'
objections: first, that the IEPs improperly referred to
J.W.'s Autism Spectrum Disorder but not his other
learning disabilities, AR 618-19; and second, that J.W. was
placed at a public school, AR 621-22. However, the hearing
officer did conclude that the 2014 IEPs denied J.W. a FAPE
because they “lack[ed] a sufficient type and amount of
specialized instruction to meet the student's identified
needs.” AR 620. As a result, the hearing officer
ordered the District to reimburse Plaintiffs for J.W.'s
KTS tuition during the 2014-2015 school year, and ordered the
District to create a new IEP for J.W. providing him with
“full time special education services.” AR 622.
District continued to engage in the IEP process, resulting in
the July 2015 IEP at issue here. That IEP called for 24.5
hours per week of “specialized instruction” and
an additional 4 hours a month each of instruction in
speech-language pathology, behavioral support services, and
occupational therapy. AR 649. The setting for all of these
services was “[o]utside [g]eneral [e]ducation.”
AR 649. The IEP did not provide for any instruction or
specialized supports during lunch or recess, see AR
649, 1120, although the District told the Plaintiffs during
the IEP meeting that it would provide supports during lunch
and recess regardless of the text of the IEP, AR 960, 1120.
About a week after the IEP was completed, the District
informed Plaintiffs that they could select between two public
schools operated by the District as the location of services
for J.W.-Hearst Elementary School and Barnard Elementary
School. AR 676.
investigated the programs at Hearst and Barnard and identified
problems with each. Plaintiffs learned that neither school
offered “self-contained specials.” AR 740,
1125-26. A “special” is non-academic
instructional time such as music or physical education, AR
1162, and a “self-contained” class is one with
only special education students, usually a small group. At
Barnard, instead of self-contained specials, all special
education students attend their specials with general
education students and receive additional support during the
specials. AR 740. Barnard offered to provide J.W. with
specials either in with the general education population and
supports, or alone. AR 1249.
challenged the appropriateness of the 2015 IEP through a
second due process hearing. AR 681-85. The hearing officer
concluded that the District did not deny J.W. a FAPE, and
rejected Plaintiffs' arguments concerning (1) the lack of
supports during lunch and recess in the IEP, (2) the lack of
self-contained specials at either school, (3) the
District's failure to propose specific placement schools
at the IEP meeting and (4) the exclusion of Plaintiffs'
educational advocate from touring Hearst. AR 4-14. Plaintiffs
appealed each of these determinations to this Court, and both
parties moved for summary judgment. See generally
Pl.'s Mot. Summ. J. (Pl.'s Mot.), ECF No. 16-1,
Dist.'s Opp'n & Cross Mot. Summ. J. (Dist.'s
Mot.), ECF No. 18.
IDEA provides that a court reviewing a due process hearing
“(i) shall receive the records of the administrative
proceedings; (ii) shall hear additional evidence at the
request of a party; and (iii) basing its decision on the
preponderance of the evidence, shall grant such relief as the
court determines is appropriate.” 20 U.S.C. §
1415(i)(2)(C); see also 34 C.F.R. § 300.516(c).
During the district court's review of the due process
hearing, “[a] motion for summary judgment operates as a
motion for judgment based on the evidence comprising the
record and any additional evidence the Court may
receive.” D.R. ex rel. Robinson v. District of
Columbia, 637 F.Supp.2d 11, 16 (D.D.C. 2009).
“Where, as here, neither party submits additional
evidence for the court's review, ‘the motion for
summary judgment is simply the procedural vehicle for asking
the judge to decide the case on the basis of the
administrative record.'” Q.C-C. v. District of
Columbia, 164 F.Supp.3d 35, 44 (D.D.C. 2016) (quoting
Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th
Cir. 1997)). This procedure is akin to “a bench trial
based on a stipulated record.” L.R.L. ex
rel. Lomax v. District of Columbia, 896 F.Supp.2d 69, 73
(D.D.C. 2012) (internal citation omitted).
the district court may hear additional evidence and decides
at the preponderance of the evidence standard, the D.C.
Circuit has held that “less deference than is
conventional in administrative proceedings” is
appropriate. Reid ex rel. Reid v. District of
Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (internal
quotation marks and citation omitted). However, the court
must afford “due weight” to the administrative
proceeding and avoid “substitut[ing] [its] own notions
of sound educational policy for those of the school
authorities which they review.” Bd. of Educ.
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 206 (1982).
appeal each of the hearing officer's four determinations,
which concluded that the District did not fail to provide a
FAPE by: (1) issuing an IEP containing insufficient
specialized instruction, especially at lunch and recess, (2)
failing to identify any schools capable of implementing
J.W.'s IEP, (3) waiting a week after the IEP meeting to
identify a location for services, and (4) excluding
J.W.'s educational advocate from Hearst. The Court
considers each issue in turn, after first considering whether
this case is moot.
preliminary matter, the District argues that the complaint
should be dismissed as moot because it seeks a determination
about the 2015-2016 school year-which has already passed- for
which the District paid for J.W. to attend KTS. Dist.'s
Mot. at 5-6. However, the Court concludes that this case is
not moot because some of Plaintiffs' claims for relief
remain available, and the parties' dispute over the
2015-2016 IEP is capable of repetition yet evading review.
doctrine of mootness prevents courts from adjudicating cases
when “events have so transpired that the decision will
neither presently affect the parties' rights nor have a
more-than-speculative chance of affecting them in the future,
” Clarke v. United States, 915 F.2d 699, 701
(D.C. Cir. 1990) (en banc) (internal quotation marks and
citations omitted), because “the courts of the United
States, pursuant to Article III of the Constitution, have no
jurisdiction to act unless there is ‘a case or
controversy, '” True the Vote, Inc. v.
IRS, 831 F.3d 551, 558 (D.C. Cir. 2016). See
generally U.S. Const. art. III, § 2. “[A]
case becomes moot only when it is impossible for a court to
grant any effectual relief whatever to the prevailing
party.” K.B. v. District Columbia, No.
13-0649, 2015 WL 5191330, at *8 (D.D.C. Sept. 4, 2015)
(quoting Chafin v. Chafin, 133 S.Ct. 1017, 1023
Plaintiffs seek certain relief that is clearly not moot. For
example, Plaintiffs seek, inter alia, that the Court
“[o]rder [the District] to place and fund J.W[.] at
[KTS] and declare it to be his current educational placement
under the IDEA.” Compl. at 27, ECF No. 15-1. The Court
could grant Plaintiffs this prospective relief, and the case
is thus not moot. See K.B., 2015 WL 5191330, at *8
(finding that, although some of the plaintiff's claims
were moot, “effectual relief remains ...