United States District Court, District of Columbia
N.S., as a minor, by and through her parents and next friends, S.S. and C.S., Plaintiffs,
DISTRICT OF COLUMBIA, Defendant.
D. BATES United States District Judge
N.S. and her parents brought this suit against the District
of Columbia Public Schools (DCPS) under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400
et seq. Specifically, plaintiffs sought reversal of
an administrative hearing officer's February 4, 2016
determination that DCPS did not deny her the “free and
appropriate education” (FAPE) required by the IDEA.
Id. § 1400(d)(1)(A). This case was referred to
Magistrate Judge G. Michael Harvey, who issued a thorough
Report and Recommendation (R&R) recommending that the
Court affirm the hearing officer's decision, deny
plaintiff's motion for summary judgement, and grant
defendant's motion for summary judgment. See
R&R, Jan. 31, 2017 [ECF No. 26]. Judge Harvey also
determined that his R&R was consistent with the Supreme
Court's recent decision in Endrew F. ex rel. Joseph
F. v. Douglas County School District, 137 S.Ct. 988
(2017). See Order, May 3, 2017 [ECF No. 33].
Plaintiffs have since moved to voluntarily dismiss this case
with prejudice under Federal Rule of Civil Procedure
41(a)(2). See Mot. for Dismissal [ECF No. 37].
Defendant opposes the motion. See Def.'s
Opp'n to Pls.' Mot. for Voluntary Dismissal
(“Def.'s Dismissal Opp'n”) [ECF No. 38].
After considering both parties' filings on the matter,
the Court will grant plaintiffs' motion, and will dismiss
the case with prejudice.
Statutory and Regulatory Background
recipient of federal funding under the IDEA, the District of
Columbia must provide a FAPE to all students who reside in
the District and who have disabilities. See 20
U.S.C. §§ 1400(d)(1)(A), 1412(a)(1). This is
typically accomplished through implementing an individualized
education program (IEP) at an appropriate school. See
Sch. Comm. of Burlington v. Dep't of Educ. of Mass.,
471 U.S. 359, 368 (1985). An IEP must be developed by a team
that includes the student's parents, teachers, and other
specialists, and must assess the student's needs,
implement strategies to meet those needs, and include goals
to measure the IEP's effectiveness. 20 U.S.C. §
1414(d)(1)(A)-(B). The IEP must be revised at least annually
to determine whether the student is making progress.
Id. § 1414(d)(4)(A). If the public school
system cannot meet the student's needs, the student must
be placed in a private school at public expense. Id.
parent who believes that her child's IEP is inappropriate
may request an administrative hearing, referred to as a
“due process hearing, ” before an independent
hearing officer. Id. § 1415(f)(1). After the
hearing officer issues a determination (“hearing
officer determination” or “HOD”), the
parent may seek review of the HOD in the appropriate federal
district court. Id. § 1415(i)(2). The party
challenging the HOD bears “the burden of persuading the
court that the hearing officer was wrong, ” Reid ex
rel. Reid v. District of Columbia, 401 F.3d 516, 521
(D.C. Cir. 2005), by a preponderance of the evidence, 20
U.S.C. § 1415(i)(2)(C). While these review processes are
underway, “the child shall remain in [her] then-current
educational placement”- thus maintaining the status
quo-“unless the State or local educational agency and
the parents otherwise agree.” Id. §
1415(j). This guarantee is known as the IDEA's
no party has objected to the R&R's factual findings,
the Court adopts those factual findings in full and
incorporates by reference the detailed statement of the
case's background contained in the R&R. The summary
that follows is drawn from the R&R.
a student diagnosed with Attention Deficit Hyperactivity
Disorder, executive functioning disorder, an anxiety
disorder, and a mixed expressive and receptive language
disorder. AR 7; R&R at 2. During the 2015-16 school
year-the year at issue in this case-she was in the ninth
grade. During the 2008-09 school year, N.S. attended a
private school where she did not perform well. AR 61, 945-46.
Her parents applied to DCPS to enroll her in the Lab School
of Washington, a private school for students with learning
disabilities, but DCPS did not respond to their application.
N.S.'s parents eventually enrolled her in the Lab School
and filed an administrative complaint against DCPS for
failing to process her complaint in a timely manner, alleging
that this resulted in denying N.S. a FAPE. AR 61; R&R at
2. On January 29, 2010, a hearing officer agreed with
N.S.'s parents, and ordered DCPS to partially reimburse
them for tuition at the Lab School, and to develop an
appropriate IEP for N.S. R&R at 2. N.S. remained at the
Lab School thereafter.
March 2015, N.S.'s parents attended a meeting at DCPS to
develop an IEP for N.S. for the 2015-16 school year. Three
months later, N.S.'s parents received notice that
N.S.'s IEP would be implemented at Woodrow Wilson Senior
High School (“Wilson”)-which meant that she would
have to leave the Lab School. N.S.'s parents objected to
this placement, and therefore again unilaterally placed N.S.
in the Lab School for the 2015-16 school year and filed a due
process complaint against DCPS, asserting a number of
procedural and substantive claims. AR 3, 455- 69; R&R at
hearing officer held a two-day hearing before issuing his
determination on February 4, 2016. He considered extensive
evidence, including the parties' representations, the
documentation from this and prior IEP meetings, and expert
testimony regarding N.S.'s educational needs, all of
which is summarized in the R&R. See id. at 3-21.
Ultimately, he concluded that DCPS provided N.S. with an
appropriate IEP, selected Wilson as an appropriate placement,
and did not deny N.S.'s parents an opportunity to
participate meaningfully in the development of N.S.'s IEP
and in the school placement decision. Therefore, the hearing
officer determined, N.S. was not denied a FAPE.
challenged the HOD in this Court. See Compl. [ECF
No. 1]. This Court referred the matter to Magistrate Judge
Harvey for full case management. See Order, Mar. 15,
2016 [ECF No. 5]. Judge Harvey considered the parties'
cross-motions for summary judgment and on January 31, 2017
issued a Report and Recommendation recommending that
plaintiffs' motion be denied and defendant's be
granted. See R&R at 59. He first considered
DCPS's mootness argument: DCPS asserted that because
plaintiffs challenged the IEP for the 2015-16 school
year-which was already finished, and for which DCPS had
already paid for N.S.'s education at the Lab School- the
issue was moot. Id. at 26-27. Judge Harvey concluded
that the case was not moot under the capable of repetition
yet evading review doctrine. Id. (quoting
Spencer v. Kemna, 523 U.S. 1, 17 (1998)). This
doctrine is particularly applicable here, Judge Harvey
concluded, where the parties continue to articulate
“irreconcilable views” on certain aspects of
N.S.'s IEP, making it extremely likely that the same
dispute will arise in the future. Id. at 28-29.
Harvey then explained that the IDEA requires a two-step
inquiry when reviewing a FAPE: a court must ask, first,
whether “the state [has] complied with the procedures
set forth” in the IDEA in designing the IEP, and
second, whether the IEP is “reasonably calculated to
enable the child to receive educational benefits.”
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206-07 (1982). Applying this
standard, Judge Harvey determined that the IEP and N.S.'s
placement at Wilson met the requirements of the IDEA and
provided N.S. with a FAPE. Judge Harvey also determined that
N.S.'s parents “were not denied access to the
procedural safeguards that guarantee parents both an
opportunity for meaningful input in all decisions affecting
their child's education and the right to seek review of
any decisions they think inappropriate.'” R&R
at 55 (quoting Honig v. Doe, 484 U.S. 305, 311-12
Judge Harvey issued the R&R, he placed the case in
abeyance pending the Supreme Court's not-yet-issued
decision in Endrew F. See Order, Feb. 8, 2017 [ECF
No. 29]. When Endrew F. was issued in March 2017,
Judge Harvey reviewed it and determined that supplemental
briefing was not necessary because Endrew F. did not
require reconsideration of his conclusions in the R&R.
Plaintiffs then timely filed their objections to the R&R,
asserting that Judge Harvey had applied to two issues legal
standards that are incorrect after Endrew F. See
Pls.' Objections [ECF No. 34]. ...