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Wade v. District of Columbia

United States District Court, District of Columbia

August 22, 2018

CHARON WADE, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         What are the responsibilities of the District of Columbia Public Schools in fulfilling the express terms of a student's Individualized Education Program? The Individuals with Disabilities Education Act assures parents that the public school system will teach their child with a learning disability, even if it means putting the child in a private school where his needs can be met. In this case, the District of Columbia Public Schools admits that it failed to provide the full number of hours of specialized education J.W. needed for two years; beyond that, however, an independent hearing officer decided that J.W.'s social maladjustment, not his disability, accounted for his refusals to attend classes regularly or to obtain behavioral counseling. A limited remedy was awarded. J.W.'s mother, Charon Wade, appeals, arguing that the hearing officer blamed her child for his own disability.

         I. FACTS

         Ms. Wade appeals from a Hearing Officer Determination (HOD) that partly rejected her claim that the District of Columbia Public Schools (DCPS) violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., by failing to provide her son J.W. with a free appropriate public education (FAPE). IDEA provides that any party aggrieved by an HOD may seek redress through a civil action in state or federal court. Id. at § 1415(i)(2). Ms. Wade asks the Court to find that J.W. was denied a FAPE in all the ways alleged in the Complaint and to order DCPS to fund appropriate compensatory education for any denial of FAPE not already remedied by the HOD. She also seeks any other relief deemed equitable. See Notice of Withdrawal (Notice) [Dkt. 15] at 2.[1]

         J.W. is a District of Columbia resident. HOD, AR at 6.[2] He has been receiving special education services since 2009, according to the Special Education Data System. Final Eligibility Determination Report (FEDR), AR at 383. He has been diagnosed with Specific Learning Disability (SLD), which impacts his skills in math, written expression, and reading, as well as his emotional/social/behavioral development. 3/31/14 IEP, AR at 46-49; FEDR, AR at 374. His diagnosis means that J.W. is considered a “child with a disability” under IDEA, 34 C.F.R. § 300.8(c)(10)(i), and that he is entitled to an IEP. Id. § 300.323. In relevant part, his school placement history is as follows:

• Friendship Public Charter School, Woodridge Middle - 8th Grade (2013-2014 school year);
• Cesar Chavez Public Charter School, Capitol Hill Campus - 9th Grade (2014-2015 school year);
• Dunbar Senior High School - 10th Grade (2015-2016 school year), 11th Grade (2016-2017 school year), 12th Grade (2017-2018 school year).[3]

3/31/14 IEP, AR at 40-54; 10/16/14 Multidisciplinary Team (MDT) Meeting Notes, AR at 55-86; 1/12/15 IEP Annual Progress Report, AR at 87-100; 12/6/16 Dunbar HS Report Card-Grade 11, AR at 364; Hr'g Tr., C. Wade, AR at 654.

         While J.W. was enrolled at Friendship Public Charter School, he received 27.5 hours of specialized instruction and 1 hour of behavioral support services per week, as required by his IEP. HOD, AR at 6; 3/31/14 IEP, AR at 40-49. As part of his transition from middle school to high school, Ms. Wade agreed to waive the requirements of J.W.'s IEP so that he could attend Cesar Chavez Public Charter School-Capitol Hill (Chavez). 10/16/14 Parent Letter of Informed Placement Decision, AR at 60. Chavez agreed to provide J.W. with 18 hours per week of specialized instruction inside a general education setting, and 1 hour per week of “related services” outside the general education setting. Id. Ms. Wade placed J.W. at Chavez with the understanding that the school would “do all that they could and pull out all the possible things that they could have to work with [J.W.] as best as possible.” Hr'g Tr., C. Wade, AR at 654-55. It was understood that if J.W. did not make progress at Chavez, the IEP team would reconvene to discuss a new location of services. 10/16/14 MDT Meeting Notes, AR at 57.

         On March 17, 2015, after meeting numerous times during the school year, J.W.'s IEP Team[4] concluded that J.W. required 27.5 hours of specialized instruction outside general education each week and 240 minutes (4 hours) per month of behavioral support services as he was “not making adequate progress in the general education setting.” 3/17/15 Multidisciplinary Team Meeting Notes, AR at 122; see also 3/17/15 IEP, AR at 101-18. It was determined that he “required small group instruction as he continued to struggle to master grade level material and standards, because of task avoidance, low frustration tolerance and improper classroom behaviors.” 3/17/15 IEP, AR at 110.

         On March 20, 2015, DCPS engaged in a least restrictive environment assessment (LRE), in which they assessed J.W. with the aim of finding a placement to meet his needs. LRE Classroom Observation Tool, AR at 129-135. DCPS also completed a Functional Behavior Assessment (FBA) of J.W. on April 17, 2015 and the IEP team reviewed it at a meeting on May 5, 2015. The FBA stated that J.W. “does better in small group settings where a teacher can work with him individually to ensure he understands the material.” FBA, AR at 136-39.

         Ms. Wade received a letter from DCPS on July 14, 2015 stating, “while no IEP revisions are being proposed as part of this letter, Dunbar H[igh] S[chool] is the DCPS school that has the programming in place to [meet J.W.'s] IEP needs.” Location of Services (LOS) letter, AR at 144. It further explained, “[J.W.'s] location is changing for the 2015-2016 School Year because Dunbar HS is the closest school with [the] required specialized program and has space available in the Specific Learning Support classroom.” Id. The parties disagree about whether this location of services letter was presented to Ms. Wade as an option or a requirement. However, it is undisputed that J.W. started at Dunbar High School in the fall of 2015. Id. According to DCPS documentation, the Specific Learning Support (SLS) program is for students with learning disabilities or challenges “where behavior is not the primary impediment to access the general education curriculum.” See Special Education Programs & Resources Guide for Families, School Year 2017-2018 (Resource Guide) at 18, available at https://dcps.dc.gov/sites/ default/files/dc/sites/dcps/publication/attachments/Family%20Programs%20and%20Resources% 20Guide%2017-180.pdf (last visited August 13, 2018).[5] The Resource Guide explains various terms and policies that are relevant here:

• Most DCPS students can be served in the general education (regular) classroom, in a Learning Lab or in a full-time classroom.
• “Inside of general education” means that the specialized instruction and related services for students with disabilities will be served while they are with their peers without disabilities in the general classroom.
• “Outside of general education” refers to all specialized instruction and services that are provided to a class or grouping made up entirely of students with disabilities. Students with less than 20 hours of specialized instruction outside of general education in their IEPs typically receive services in a Learning Lab, also referred to as a resource room or pull-out services.
• DCPS's full-time, district-wide classrooms provide specialized support to students with 20 or more hours of specialized instruction outside of general education in their IEP. Our full-time classrooms are designed to give more support to students with disabilities who have a high level of need.

See Resource Guide at 3.

         From the fall of 2015 when he was placed at Dunbar until January 17, 2017, J.W.'s IEPs specified that he needed 27.5 hours per week of specialized instruction outside of general education. See 9/29/15 IEP, AR at 162-78; 10/2/15 Amended IEP, AR at 179-96; 3/18/16 IEP, AR at 282-303; 5/18/16 Amended IEP, AR at 315-37. “An IEP with 27.5 hours of specialized instruction outside of general education requires all classes, including academic and non-academic such as electives, to be with only special education students.” Compl. [Dkt. 1] ¶ 29.[6] J.W.'s IEP was revised on January 17, 2017, to reduce J.W.'s specialized education requirement to 20 hours per week because that was all Dunbar had provided and could provide. 1/17/17 IEP, AR at 390-407. Ms. Wade testified that she was unaware that J.W.'s IEP had been changed until a later meeting at the school, and that she did not agree to the change. HOD, AR at 8; Hr'g Tr., C. Wade, AR at 684-85.

         On March 13, 2017, Ms. Wade filed a due process complaint under IDEA challenging the reduction in special education hours for J.W. and his placement at Dunbar. Due Process Complaint Notice, AR at 409-24. DCPS responded on March 29, 2017. DCPS Response to Due Process Complaint, AR at 434-42. The school held a resolution session on March 29, 2017, but the parties were unable to resolve the matter. 3/29/17 Resolution Period Disposition Form (Resolution Form), AR at 443-47. The matter was then presented at a hearing before a hearing officer on May 22 and 24, 2017. The hearing officer rendered the Hearing Officer Determination on June 10, 2017. HOD, AR at 3-23.

         The HOD reached three “conclusions of law”: (1) Ms. Wade established a prima facie case that DCPS had denied J.W. a FAPE by failing to provide an appropriate educational placement for him in 2015-2016 and 2016-2017, when his IEPs required 27.5 hours per week outside of general education; (2) however, Ms. Wade had not shown that DCPS failed to implement J.W.'s IEP prior to January 2017 because the “proportion of what Student was actually missing did not rise to the level of materiality” and “any failure to provide services was de minimis”; and (3) Ms. Wade made a prima facie showing that J.W.'s January 17, 2017 IEP denied him a FAPE but DCPS ...


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