United States District Court, District of Columbia
REPORT AND RECOMMENDATION
M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.
case arises from administrative proceedings that Plaintiff
Antoinette Shaw (“Plaintiff” or “Ms.
Shaw”) brought against the District of Columbia
(“the District”), under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400, et seq., to challenge the District of
Columbia Public Schools' (“DCPS”) provision
of a free and appropriate public education
(“FAPE”) for Plaintiff's minor child S.S.
(“S.S.” or “the Student). See
generally Compl., ECF No. 1. Specifically, Ms. Shaw
challenges certain findings made in a February 1, 2017
Hearing Officer Determination (“HOD”) issued by
the District of Columbia's Office of the State
Superintendent of Education and asks the Court to reverse the
HOD and remand for further proceedings.
pending Motion for Summary Judgment, which Ms. Shaw filed on
behalf of her daughter, S.S., Ms. Shaw alleges that the
Impartial Hearing Officer (“Hearing Officer”)
erred in four ways: (1) by failing to provide an adequate
remedy for her finding that DCPS denied S.S. a FAPE by
failing to conduct any new assessments as part of its
triennial review of S.S.'s needs; (2) by failing to find
that DCPS denied S.S. a FAPE by including inadequate plans
for S.S.'s transition out of high school in the
individualized educational plans (“IEPs”)
prepared after S.S. turned sixteen; (3) by failing to find
that DCPS denied S.S. a FAPE by excluding Ms. Shaw from
certain aspects of S.S.'s educational planning; and (4)
by failing to find that DCPS denied S.S. a FAPE by
prematurely graduating her from high school despite her
significant academic shortcomings and failing to give Ms.
Shaw adequate prior written notice of S.S.'s upcoming
graduation. See Pl.'s Mot. for Summ J.
(“Pl.'s Mot.”), ECF No. 10. The District has
cross-moved for summary judgment and contends that the HOD
should be affirmed because the applicable law and the record
developed during the administrative proceedings support the
Hearing Officer's rulings. See Def.'s
Opp'n to Pl.'s Mot. for Summ. J. (“Def.'s
Opp'n”), ECF No. 12. Having considered the relevant
filings and the applicable law, and for the
reasons set forth below, the undersigned recommends that the
Court GRANT-IN-PART and DENY-IN-PART Plaintiff's Motion
for Summary Judgment, and GRANT-IN-PART and DENY-IN-PART
Defendant's Cross-Motion for Summary Judgment.
IDEA was enacted “to ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related
services designed to meet their unique needs and prepare them
for further education, employment, and independent
living.” 20 U.S.C. § 1400(d)(1)(A). To that end,
local school districts must ensure that “[a]ll children
with disabilities residing in the State . . . regardless of
the severity of their disabilities, and who are in need of
special education and related services, are identified,
located, and evaluated.” Id. §
1412(a)(3)(A). A FAPE includes “special education and
related services that - (A) have been provided at public
expense, under public supervision and direction, and without
charge; (B) meet the standards of the State educational
agency; (C) include an appropriate preschool, elementary
school, or secondary school education in the State involved;
and (D) are provided in conformity with [a child's]
individualized education program.” Id. §
IDEA “requires the school district to create and
implement an [individualized education program]” for
disabled children who are eligible for special education
services. Lesesne ex rel. B.F. v. District of
Columbia, 447 F.3d 828, 830 (D.C. Cir. 2006). This IEP
is “the means by which special education and related
services are ‘tailored to the unique needs' of a
particular child.” Endrew F. ex rel. Joseph F. v.
Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 994 (2017)
(quoting Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 181
(1982)); see also Honig v. Doe, 484 U.S. 305, 311
(1988) (noting that Congress “envision[ed] the IEP as
the centerpiece of the statute's education delivery
system for disabled children”); Lesesne, 447
F.3d at 830; 20 U.S.C. § 1414(d)(2)(A). The IEP is
“[p]repared at meetings between a representative of the
local school district, the child's teacher, the parents
or guardians, and, whenever appropriate, the disabled
child.” Honig, 484 U.S. at 311 (citing 20
U.S.C. § 1401(19) (1988)). The final product “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. Once a child reaches
age sixteen, the IEP must include “appropriate
measurable postsecondary goals based upon age appropriate
transition assessments” and explain the transition
services necessary to help the student reach those goals. 20
U.S.C. § 1414(d)(1)(A)(i)(VIII).
must be “reasonably calculated to enable a child to
make progress appropriate in light of the child's
circumstances.” Endrew, 137 S.Ct. at 999. The
IEP also must comply with the IDEA's requirement that
students “be educated in the least restrictive
environment possible.” Leggett v. District of
Columbia, 793 F.3d 59, 74 (D.C. Cir. 2015). After the
IEP is developed, the school district must provide the child
with an appropriate educational placement that comports with
the IEP. See 34 C.F.R. § 300.116(b)(2);
Hinson ex rel. N.H. v. Merritt Educ. Ctr., 579
F.Supp.2d 89, 99 (D.D.C. 2008).
who disagree with the IEP or believe that a school district
has violated other IDEA requirements may file a due process
complaint. See 20 U.S.C. § 1415(b)(6). If the
parties are unable to resolve the complaint within thirty
days, the parents are entitled to a due process hearing
before the local education agency. Endrew, 137 S.Ct.
at 994; see also 20 U.S.C. § 1415(f)(1), (g).
Either party may appeal an adverse ruling to a federal
district court. See 20 U.S.C. § 1415(i)(2).
events pertinent to this case occurred between the 2012-2013
school year and the 2015-2016 school year. At that time, S.S.
was a student eligible for special education services based
on an IDEA classification of Intellectual Disability. AR 6;
AR 111 (Final Eligibility Determination Report).
Overview of S.S.'s Disability and Anacostia High
School's Services for S.S.
was a student at Anacostia High School, where she received
special education services based on her Intellectual
Disability. AR 6; AR 950 (Test. Of Latisha Chisholm
(“Chisholm Test.”)). S.S. had an independent
comprehensive psychological evaluation on August 27, 2012,
shortly before she began ninth grade. AR 4; AR 33-47
(Comprehensive Psychoeducational & Clinical Evaluation).
Although S.S. was eligible to remain in school until she
turned twenty-two years old, she was scheduled to graduate in
four years on the high school diploma track. AR 6; AR 700-01
(Test. of Twilah Anthony (“Anthony Test.”).
Throughout her tenure at Anacostia High, S.S. was adamant
about graduating and worked diligently toward accomplishing
her goal. AR 6; AR 661 (Test. of S.S. (“S.S.
Test.”); AR 706 (Anthony Test.). As part of her special
education, S.S. received accommodations from her teachers to
help her complete assignments and examinations. AR 6; AR 942
had a team of teachers and administrators who developed
annual IEP goals for her education. See AR 6; AR 50,
86, 207 (IEPs dated 2/24/2015, 9/21/2015, and 4/25/2016). The
IEPs pertinent to this litigation were performed on February
24, 2015, September 21, 2015, and April 25, 2016.
See AR 50-73, 86-110, 207-27. Several parties
provided input for the IEPs, including S.S., her teachers,
and Ms. Shaw. See AR 8, 50-73, 86-110, 207-27.
Objective tests such as the Brigance Transition Skills
Assessments and Casey Life Skills Test also informed the
development of the IEPs. Id. The IEPs included goals
for mathematics, reading, written expression, and
adaptive/daily living skills. Id.
in February 2015, S.S.'s IEPs included goals for her
transition out of DCPS. For example, one goal was for S.S. to
contact a post-secondary educational program that she was
interested in attending after graduating high school, and to
ask questions about the program. AR 8, 70-71, 105-08, 223-27.
The IEPs also anticipated that S.S. would contact a workforce
development center to ask questions about a program she hoped
to work in after high school. Id.
had opportunities to participate in several outside programs
that school officials believed would help prepare S.S. for
future training or employment. In December 2015, S.S. was
accepted into the Competitive Employment Opportunities
Exercises in Transition Academy (“CEO EXIT”)
Program, which was designed to help students navigate and
manage the expectations of postsecondary training or a
workplace setting. AR 9; AR 136 (CEO Exit Acceptance Letter).
In March 2016, S.S. applied to CVS's Workforce
Development Program, which is designed to provide workplace
assistance and placement to adults with disabilities. AR 9;
AR 137-140 (CVS Workforce Application). S.S. expressed
interest in becoming a CVS pharmacy technician. AR 137. A
transition specialist at Anacostia High School provided some
travel training with S.S., including drawing a map to
S.S.'s assigned CVS store and traveling the route with
her. AR 9-10; AR 1001 (Anthony Test.). In addition, On the
Move provided travel training to S.S. through its partnership
with DCPS. AR 10; AR 1002 (Anthony Test.). Ultimately, S.S.
did not attend either program because her mother expressed
concerns about her ability to succeed. AR 1001-02 (Anthony
Ms. Shaw's Involvement with S.S.'s Educational
Shaw participated in most of S.S.'s IEP meetings during
the relevant time period. Ms. Shaw was not present at the
meeting for the February 24, 2015 IEP, but DCPS sent her a
letter three days afterward offering to reconvene S.S.'s
IEP team to discuss her IEP. AR 7. S.S. turned eighteen years
old in July 2015. AR 671 (Test. Of Antoinette Shaw
(“Shaw Test.”)).Another IEP meeting occurred in
September 2015, after S.S. had turned eighteen, and both S.S.
and Ms. Shaw attended that meeting in person. AR 86. In April
2016, S.S. attended an IEP in person and provided input to
develop a Summary of Performance in preparation for
S.S.'s June 2016 graduation. AR 208, 228-38. The parties
dispute whether Ms. Shaw attended the April 2016 IEP meeting.
November 5, 2015, after S.S. turned eighteen years old, S.S.
executed a durable power of attorney document, authorizing
Ms. Shaw to act as her agent in a broad array of areas,
including special education. AR 131-35. Despite Ms.
Shaw's power of attorney status, Ms. Shaw and S.S. argued
about whether S.S. should graduate. AR 671 (Shaw Test.). Ms.
Shaw did not think that S.S. should graduate, although S.S.
was adamant that she should. Id.. During meetings at
school, S.S. would often ask for her mother to be present
when making decisions, but the teachers told her that she did
not need her mother present and pushed her to make her own
decisions. AR 661-63 (S.S. Test.).
Shaw voiced her concerns about S.S.'s participation in
job training programs to Sean Duling, S.S.'s transition
specialist at Anacostia High School. AR 671-73 (Shaw Test.).
Ms. Shaw told Mr. Duling that she believed S.S. lacked the
skills necessary for the workforce development programs based
on the amount of travel required and an on-site CVS
manager's assertion that S.S. would not qualify for the
role. Id. Ms. Shaw claims that she called Anacostia
High School more than once to arrange another IEP meeting or
receive notes from the April 2016 IEP meeting, but she never
received a response. AR 683.
S.S. was enrolled in school, Ms. Shaw was generally satisfied
with the educational services Anacostia High School provided
S.S. and believed that S.S.'s team was “doing the
right thing.” AR 680-82 (Shaw Test.). Conversations
with DCPS staff members led Ms. Shaw to believe that S.S.
would be prepared to move on with her life after graduation.
AR 678 (Shaw Test.). Ms. Shaw eventually became concerned
that S.S. was not ready for job training. AR 681 (Shaw
Test.). At some point, Ms. Shaw did not think that S.S.
should graduate. AR 670-71 (Shaw Test.). However, staff never
counseled Ms. Shaw that S.S. could remain in school and
receive special education past age eighteen. AR 669 (Shaw
Test.). Ms. Shaw would have agreed to allow S.S. to remain in
school until she was twenty-two years old if Ms. Shaw had
known that was an option. AR 678 (Shaw Test.). After S.S.
graduated, Ms. Shaw recognized that S.S. “had a lot of
issues that could have been addressed if she had stayed in
school longer.” AR 682 (Shaw Test.).
S.S.'s Progress at Anacostia High
freshman in 2012, S.S.'s overall cognitive ability fell
in the lower extreme range. AR 6, 38. During her high school
tenure, S.S. made regular, albeit not uniform, progress on
her IEPs. See AR 6; AR 75-85 (IEP Progress Report
dated June 2015); AR 240-50 (IEP Progress Report dated April
2017). According to Anacostia High School's Special
Education Coordinator Latisha Chisholm, a student with
S.S.'s intellectual disability would not be expected to
make tremendous progress. AR 7, 950. Upon graduation in June
2016, S.S. was performing between a third and fifth grade
academic level. AR 7; AR 947 (Chisholm Test.). S.S. could not
tell time, take the metro by herself, or count money, and she
needed support for her day-to-day activities. AR 661 (S.S.
Test.); AR 670 (Shaw Test.). Yet, S.S. graduated with a 3.1
GPA and was ranked in the top 10% of her class. AR 256-58
(DCPS Transcript & Diploma), ECF No. 26-1.
initially was excited to graduate. AR 661 (S.S. Test.).
However, once she graduated she realized that she lacked
“the skill that it takes [to function in] everyday life
and therefore struggle[d].” Id. A
comprehensive evaluation conducted in November 2018, two
years after S.S. graduated, found that S.S. has the reading
equivalency of a nine year old, the math equivalency of an
eight year, three month old, and the written language of a
ten year, eleven month old. See Comprehensive
Psychological Exam, ECF No. 25-1.
November 18, 2016, Ms. Shaw filed the Due Process Complaint
(“DPC”) underlying the HOD in this matter. AR
413-22. DCPS responded on December 6, 2016. AR 435-43. The
parties appeared before Hearing Officer Nakeisha Blount
(“Hearing Officer”) on December 21, 2016 for a
Pre-Hearing Conference. AR 477. The DPC identified the
following issues for resolution:
1. Whether DCPS denied the student a FAPE during the
2015-2016 school year by failing to adequately evaluate the
student including by failing to perform triennial evaluations
including a comprehensive psychological evaluation and an
appropriate comprehensive vocational assessment, to include
assessments for post-secondary education, employment and
independent living abilities;
2. Whether DCPS denied the student a FAPE by failing to
develop appropriate IEPs in February 2015, September 2015,
and April 2016, including by failing to develop appropriate
and meaningful transition plans. The IEPS were not reasonably
calculated to provide the student with educational benefit or
amended to meet her specific academic needs and difficulties.
All the student's academic and functional goals were
vague and/or not appropriate for the student's cognitive
3. Whether DCPS denied the student a FAPE by failing to allow
the student's parent to participate in all of the
student's educational planning after July 2015 when the
student turned 18. The parent attended the September 2015 IEP
meeting but did not participate in the development of the
IEP. The parent did not attend the April 2016 IEP meeting.
4. Whether DCPS denied the student a FAPE by prematurely
exiting her from special education through giving her a
diploma, and by failing to comply with federal and local
regulations. Specifically, plaintiff asserts that DCPS failed
to provide the parent (1) Summary of Performance (at any
point), (2) Prior Written Notice (PWN) (prior to graduation),
and (3) Notice of Transfer of Rights (prior to the student
turning 18 years old).
AR 478. As relief, Ms. Shaw sought: (a) a finding that S.S.
had been denied a FAPE; (b) an Order directing DCPS to fund
an independent comprehensive psychological evaluation at
market rate; (c) an Order requiring that DCPS conduct a
comprehensive vocational evaluation (equivalent to the
Brigance Transition Inventory) within 10 days of the HOD; (d)
an order requiring that DCPS develop, fund, and execute an
appropriate transition plan; and (e) an Order directing DCPS
to provide the student compensatory education for the
2014-2015 and 2015- 2016 school years including tutoring
hours for functional and academic remediation and a
vocational program to be determined after the vocational and
psychological evaluations are completed. AR 479.
parties, each represented by counsel, convened for a Due
Process Hearing on January 10, 2017, January 11, 2017, and
January 18, 2017. AR 4, 602, 773, 1050. Plaintiff presented
three witnesses: S.S., Ms. Antoinette Shaw, and Ms. Twilah
Anthony. AR 4, 604, 772. Ms. Anthony is an educational
advocate who testified as an expert witness in special
education programming, placement, and IEP planning. AR 4; AR
694 (Anthony Test.). DCPS presented two expert witnesses: Ms.
Latisha Chisholm, the Special Education Coordinator at
Anacostia High School and S.S.'s former environmental
science teacher, and Mr. Christopher Nace, DCPS' interim
Director of Secondary Transition. AR 4; AR 937-38 (Chisholm
Test.); AR 988 (Nace Test.). Ms. Chisholm testified as an
expert in special education programming and placement, and
Mr. Nace testified as an expert in special education
programming and placement, particularly in transitions for
students with special needs. AR 937 (Chisholm Test.), 988-89
Hearing Officer issued a HOD on February 1, 2017 and issued a
revised version on February 4, 2017 to correct formatting and
typographical errors. AR 3, n.2. The Hearing Officer
determined that DCPS's reliance on evaluations and
assessments that were several years old when it conducted its
triennial review was unreasonable and denied S.S. a FAPE
during the 2015-2016 school year. AR 11. Next, the Hearing
Officer reviewed Ms. Shaw's challenge to the IEPs and
transition plans contained therein. AR 12. The Hearing
Officer concluded that the IEPs likely contained
inappropriate goals, “particularly to the extent that
they were repeated in September 2015 and April 2016, ”
but did not clearly address whether those deficiencies denied
S.S. a FAPE. Id. The Hearing Officer rejected Ms.
Shaw's assertion that the IEPs' transition goals were
inappropriate, reasoning that the goals were
“reasonably connected to [S.S.'s] expressed
interests, her realistic prospects, and were sufficiently
ambitious . . . with accommodations.” AR 12. Next, the
Hearing Officer found that DCPS did not deny S.S. a FAPE by
failing to allow Ms. Shaw to participate in all of the
educational planning after S.S. turned eighteen. AR 12. The
Hearing Officer concluded that Ms. Shaw participated in
S.S.'s educational planning, as evidenced by her
engagement in a September 2015 meeting and various
conversations with teachers throughout the school year
including after S.S.'s eighteenth birthday. AR 12.
Finally, the Hearing Officer found that DCPS did not deny
S.S. a FAPE by permitting her to graduate, particularly given
that S.S., Ms. Shaw, and the team opted to keep S.S. on the
diploma track and S.S. was adamant about graduating on time.
AR 13. However, the Hearing Officer found that
DCPS's apparent failure to give Ms. Shaw prior written
notice (“PWN”) of S.S.'s graduation inhibited
Ms. Shaw's ability to participate in providing a FAPE to
S.S. AR 13. The Hearing Officer reasoned that the PWN would
have advised Ms. Shaw of the alternatives to graduation, such
as S.S.'s option to remain in school beyond June 2016,
and Ms. Shaw would have objected to the graduation had she
been adequately informed. AR 13.
relief, the Hearing Officer ordered DCPS to provide a
comprehensive psychological evaluation at market rate within
ten business days of the HOD. AR 13. The Hearing Officer did
not indicate whether this relief was designed solely to
remedy DCPS's failure to conduct updated assessments
during the triennial review or also was intended to remedy
the failure to provide PWN of S.S.'s upcoming graduation.
The Instant Action
April 21, 2017, Ms. Shaw filed this action challenging the
HOD. See generally Compl. After the District filed
the Administrative Record, the parties cross-moved for
summary judgment. See generally AR; Pl.'s Mot.;
Def.'s Opp'n. Ms. Shaw also moved to strike a
declaration submitted with the District's cross-motion.
See Pl.'s Mot. to Strike, ECF No. 15. District
Judge Dabney L. Friedrich subsequently referred the cross
motions and the motion to strike to the undersigned for a
report and recommendation. See 03/07/2018 Min.
Order. Judge Friedrich adopted the undersigned's Report
and Recommendation and denied Plaintiff's Motion to
Strike. See 09/26/2018 Min. Order. After briefing
was complete, Ms. Shaw filed Status Reports to advise the
Court of the status of S.S.'s ...