MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
Plaintiff
LaShawn Smith brings this action on behalf of her son A.J. to
challenge various decisions by District of Columbia Public
Schools (“DCPS”) regarding A.J.'s education.
Smith first asserts that DCPS failed to provide her son with
a free and appropriate public education in violation of the
Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq.
She also contends that DCPS violated both the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., and the District of Columbia Human Rights
Act (“DCHRA”), D.C. Code § 2-1401.01 et
seq., for failing to offer A.J. Advanced Placement
classes outside of the general education setting. Both
parties moved for summary judgment. Magistrate Judge Deborah
A. Robinson, having been referred the case, issued a Report
and Recommendation (“R&R”) dismissing
Smith's IDEA claim for failure to exhaust and declining
to address Smith's remaining claims.
For the
reasons that follow, the Court will REJECT
the Magistrate Judge's R&R, Dkt. 17. The Court will,
instead, GRANT in part and
DENY in part Smith's motion for summary
judgment, Dkt. 10, and the District of Columbia's
cross-motion for summary judgment, Dkt. 12. In particular,
the Court will grant the District of Columbia summary
judgment on Smith's claims under the ADA and the DCHRA.
With respect to Smith's IDEA claim, the Court will remand
the matter to the Hearing Officer for further proceedings
consistent with this opinion.
I.
BACKGROUND
A.
Statutory Background
The
IDEA was enacted to “ensure that all children with
disabilities have available to them a free appropriate public
education” (“FAPE”) that includes
“special education and related services designed to
meet their unique needs.” 20 U.S.C. §
1400(d)(1)(A). To that end, the IDEA provides procedural
protections for disabled students, confers a substantive
right to a FAPE, and sets forth dispute resolution procedures
in case a disabled student's parents and his school
disagree on the assistance that IDEA requires the school to
provide.
Once a
child has been “identified as disabled, ” his
school “must convene a meeting of a multidisciplinary
team to develop” an Individualized Education Program,
or “IEP.” Z.B. by & through Sanchez v.
District of Columbia, 92 F.Supp.3d 300, 302 (D.D.C.
2018). The IEP is “the centerpiece of the statute's
education delivery system for disabled children, ”
Honig v. Doe, 484 U.S. 305, 311 (1988), and must be
“tailored to [the] disabled child's needs, ”
Alston v. District of Columbia, 439 F.Supp.2d 86, 90
(D.D.C. 2006) (“Alston I”).
An IEP
provides “a comprehensive statement of the educational
needs of a handicapped child, ” Leonard v.
McKenzie, 869 F.2d 1558, 1560 n.1 (D.C. Cir. 1989)
(quoting Sch. Comm. of the Burlington v. Dept. of
Educ., 471 U.S. 359, 368 (1985)), as well as “the
specially designed instruction and services that will enable
the child to meet [his educational] objectives, ”
Honig, 484 U.S. at 311. An IEP “sets out, in
writing, the student's existing levels of academic and
functional performance, establishes appropriate goals, and
describes how the student's progress toward those goals
will be measured.” Z.B. v. District of
Columbia, 888 F.3d 515, 519 (D.C. Cir. 2018) (citing 20
U.S.C. § 1414(d)(1)(A)(i)(I)-(III)). In addition, the
IEP must describe “the special education and related
services . . . to be provided to the child . . . to advance
appropriately toward attaining the annual goals.” 20
U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). Special education
consists of “specially designed instruction . . . to
meet the unique needs of a child with a disability, ”
20 U.S.C. § 1401(29), while related services are those
support services that are “required to assist [the]
child . . . to benefit from” that instruction, 20
U.S.C. § 1401(26)(A). Once an IEP is in place, the
child's school system must comply with its terms.
See 20 U.S.C. § 1401(9)(D).
In
addition to these procedural protections, the IDEA guarantees
disabled children a substantive right to a FAPE. See Bd.
of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 201-04 (1982). A child has received a FAPE if
his “IEP sets out an educational program that is
‘reasonably calculated to enable [him] to receive
educational benefits.'” Endrew F. ex rel.
Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct.
988, 996-97 (2017) (quoting Rowley, 458 U.S. at
207). The Supreme Court recently clarified the
“standard [for] evaluat[ing] the adequacy of the
education provided” by a school system: “To meet
its substantive obligation under the IDEA, a school must
offer an IEP reasonably calculated to enable a child to make
progress appropriate in light of the child's
circumstances.” Endrew F., 137 S.Ct. at
998-99. “To the maximum extent appropriate, ” the
school must educate the child in the “[l]east
restrictive environment, ” or, in other words,
“with children who are not disabled.” 20 U.S.C.
§ 1412(a)(5)(A).
Finally,
“[w]hen disagreement arises” over “what a
child's IEP should contain, ” the IDEA permits the
child's parent or parents to request a “due process
hearing” before a state or local educational agency.
Endrew F., 137 S.Ct. at 994 (citing 20 U.S.C. §
1415(f)(1)(A), (g)). The losing party may seek judicial
review of the administrative determination in state or
federal court. Id. (citing 20 U.S.C. §
1415(i)(2)(A)).
B.
Factual Background
A.J. is
“bright, ” “learns quickly, ” and
“perform[s] at or above grade level, ” AR 8
(Hearing Officer's decision), but he has an emotional
disturbance that “leads to frequent emotional
dysregulation” and behavioral issues, AR 6. In school,
he has “frequent conflict[s] with peers and teachers,
with physical altercations [occurring] 2-3 times per
week.” Id. A.J.'s emotional disturbance
also interferes with his education. When his “emotions
are d[y]sregulated, ” he is “unavailable for
learning;” when he “has to be removed from the
classroom . . . to de-escalate following an altercation,
” he cannot “access[] the general education
curriculum.” AR 26. A.J., however, “can do his
work when he chooses to, ” AR 9, and has “had
fewer behavioral challenges in the classes that he [finds]
rigorous, ” AR 8. A.J. has also had “infractions
in hallways, the cafeteria, and the gym, ” and
“there is no question [these conflicts were due to] his
academic content boring him.” Id.
In the
fall of 2015, at the beginning of A.J.'s freshman year of
high school, DCPS assigned A.J. to the Columbia Heights
Education Campus. Dkt. 1 at 3 (Compl. ¶ 9). The IEP then
in effect, which was developed at the end of the previous
academic year in March 2015, “indicated that
‘[A.J.] requires a self-contained environment in order
to succeed academically and behaviorally.'” AR
154-55. The March 2015 IEP also provided for 26.5 hours per
week of specialized instruction outside the general education
setting. AR 154.
A.J.
was initially placed in the Specific Learning Support
(“SLS”) program, AR 8, a “self-contained
special education classroom setting, ” AR 155, that is
“designed for students with learning disabilities,
” Dkt. 10-2 at 2 (Pl.'s SUMF ¶ 3). A.J.,
however, does not have a learning disability. Id.
(Pl.'s SUMF ¶ 3). A.J.'s IEP team met on October
8, 2015, and the resulting IEP carried forth the two
provisions from the March 2015 IEP: the need for a
“self-contained environment” and 26.5 hours per
week of specialized instruction. See AR 28-29;
see also AR 242 (Hrg. Tr. 8:8-18). At the meeting,
A.J. indicated that he wished to participate in general
education classes, but the IEP team concluded “that he
was not ready due to his behavior.” AR 155.
Toward
the end of October 2015, A.J. began “having fights with
another student, ” AR 8, and was subsequently moved
from the SLS program to the Behavior and Education Support
(“BES”) program, id.; AR 155. The BES
program provides full-time instruction “outside the
general education setting with supports for students with
emotional disabilities.” AR 88 (due process complaint).
The SLS and BES programs were led by “the same special
education teachers, ” and A.J.'s instructional
“content remained the same, ” except, in the BES
program, A.J. “had a behavior technician to work with
him.” AR 8. The other six students in the BES program
were a year ahead of A.J. Id. As a result, A.J. was
given “9th grade work while his [BES classmates] were
given 10th grade instruction.” AR 88. A.J. received
“personalized attention, ” and his work could
“easily be adjusted and made more challenging for
him.” AR 8.
In
November 2015, Plaintiff LaShawn Smith, A.J.'s mother,
requested that A.J. be evaluated for placement in general
education Advanced Placement (“AP”) courses.
See AR 8; AR 89. DCPS informed her that an
evaluation was not required to take those classes but that
“educational programming decisions were made by the IEP
team.” AR 89. Smith was also informed that “the
hours on [A.J.'s] IEP would have to be reduced for him to
attend AP classes.” AR 8. Smith “did not agree to
forfeit” the hours, and so A.J. “did not receive
any form of advanced curriculum.” Dkt. 10-2 at 2
(Pl.'s SUMF ¶ 9).
On
February 4, 2016, Smith filed a due process complaint against
DCPS with the District of Columbia Office of the State
Superintendent of Education (“OSSE”).
See AR 86-92. The complaint asserted that A.J.'s
initial placement in the SLS program was inappropriate and
therefore amounted to a denial of a FAPE in violation of the
IDEA. Smith argued that the placement was inappropriate
because the SLS program was “designed to accommodate
students with specific learning disabilities, ” and
A.J. has an emotional disturbance, not a learning disability.
AR 87-88. The complaint also asserted that DCPS, “[i]n
an attempt to remedy [its] initial placement error, ”
compounded its mistake by “remov[ing] A.J. from an
age-appropriate classroom” through the SLS program and
placing him in the BES program, where his peers were a year
ahead of him. AR 91. Because of this discrepancy, Smith
argued, A.J.'s placement in the BES program was also
inappropriate and violated the IDEA. AR 90. Finally, Smith
maintained that DCPS violated the ADA by failing to provide
AP classes outside the general education setting. AR 90-91.
The
Hearing Officer issued his decision on April 2, 2016.
See AR 3-17 (Hearing Officer Determination). He
dismissed Smith's ADA claim without prejudice on the
grounds that he “lack[ed] subject matter
jurisdiction.” AR 199 (citing 34 C.F.R. 300.507(a)(1));
see also AR 5 n.4. Next, he concluded that
A.J.'s placement in the SLS and BES programs were
“sufficient to implement [the] IEP and provide a
FAPE.” AR 12. Finally, the Hearing Officer concluded
that DCPS's failure to enroll A.J. in AP classes did not
deny A.J. a FAPE. AR 13.
C.
Procedural History
Smith
filed this action on A.J.'s behalf in June 2016. Dkt. 1.
The complaint asserts that DCPS denied A.J. a FAPE in
violation of the IDEA “[b]y initially placing A.J. in a
SLS classroom” and “[b]y moving A.J. out of an
age-appropriate classroom” and into a BES classroom
with students a year ahead of him. Id. at 5 (Compl.
¶¶ 27-28). In addition, Smith contends that
DCPS's failure to offer AP classes outside the general
education setting violated both the ADA and the DCHRA.
Id. at 6-7 (Compl. ¶¶ 32-33, 38). Smith
asks that the Court (1) reverse the Hearing Officer's
determination and remand the matter to the Hearing Officer
“for an appropriate determination of compensatory
education;” (2) declare that DCPS violated the IDEA,
ADA, and DCHRA; and (3) award compensatory and punitive
damages of $50, 000. Id. at 7-8 (Compl. Prayer).
The
case was referred to a magistrate judge for full case
management, Dkt. 4, and both parties moved for summary
judgment, Dkt. 10; Dkt. 12. On March 20, 2018, the Magistrate
Judge filed her R&R, Dkt. 17, and, subsequently, both
parties filed objections to the R&R, Dkt. 21; Dkt. 23.
II.
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