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Shaw v. District of Columbia

United States District Court, District of Columbia

February 8, 2019

ANTOINETTE SHAW, Plaintiff
v.
DISTRICT OF COLUMBIA, Defendant.

          REPORT AND RECOMMENDATION

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.

         This 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.

         In the 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[1] 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.

         BACKGROUND

         I. Statutory Framework

         The 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. § 1401(9).

         The 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).

         The IEP 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).

         Parents 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).

         II. Factual Background

         The 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).

         A. Overview of S.S.'s Disability and Anacostia High School's Services for S.S.

         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 (Chisholm Test.).

         S.S. 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.

         Beginning 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.

         S.S. 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 Test.).

         B. Ms. Shaw's Involvement with S.S.'s Educational Planning

         Ms. 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.”)).[2]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. AR 5.

         On 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.).

         Ms. 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.

         While 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.).

         C. S.S.'s Progress at Anacostia High School

         As a 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.

         S.S. 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.

         III. Procedural Background

         A. Administrative Proceedings

         On 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 ability.
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.

         The 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 (Nace Test.).

         The 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.

         As 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.

         B. The Instant Action

         On 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 ...


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