United States District Court, District of Columbia
Z.B., a minor, by and through his mother, Sylvia Sanchez, Plaintiff
THE DISTRICT OF COLUMBIA, et al., Defendants
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
case is about a disagreement concerning the change in school
for a child, Z.B., with autism. Z.B. was attending the
nonpublic Kingsbury Day School, but the District of Columbia
Public Schools (“DCPS”) determined that the
proper location of services to implement Z.B.'s
Individualized Education Program (“IEP”) was
another nonpublic school, Kennedy Krieger. Plaintiff has
filed this lawsuit claiming that DCPS's decision to
change Z.B.'s school was an illegal change in placement
and denied him a free and appropriate public education
before the Court are Plaintiff's  Motion for Summary
Judgment and Default Judgment and Defendant DCPS's 
Cross-Motion for Summary Judgment. Upon consideration of the
pleadings,  the relevant legal authorities, and the
record as a whole, the Court DENIES Plaintiff's Motion
and GRANTS Defendant's Motion. The Court concludes that
Z.B.'s change in schools to Kennedy Krieger was a change
in location of services rather than an illegal change in
educational placement. The Court further concludes that
Plaintiff's inability to fully participate in Z.B's
change in location of services to Kennedy Krieger did not
deny Z.B. a FAPE.
is the mother of Z.B., a minor child found eligible to
receive special education and related services under the IDEA
as a student with a disability. See 20 U.S.C. §
1400 et. seq. Defendant is a municipal corporation
that receives federal funds pursuant to the IDEA in exchange
for providing a free and appropriate public education
(“FAPE”) and is obligated to comply with the
IDEA. See 20 U.S.C. § 1411, 1412(a)(1)(A).
IDEA mandates that local school districts 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.” 20
U.S.C. § 1412(a)(3)(A). Once such children have been
identified, located, and evaluated the school district must
provide them with a FAPE. A FAPE is defined as “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).
ensure children with disabilities receive a FAPE, IDEA
requires that the school district create and implement an
Individualized Education Plan (“IEP”).
Lesesne ex rel. B.F. v. D.C., 447 F.3d 828, 830
(D.C. Cir. 2006). The IEP is created at multi-disciplinary
meetings with a representative of the school district,
teachers, parents or guardians, and the child if appropriate.
Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP sets
out the child's baseline educational performance,
establishes long-term and short-term goals for improvement,
and lays out the specialized educational services the child
will require to meet those goals. Id. At a minimum,
the IEP must be reasonably calculated to provide
“personalized instruction with sufficient support
services to permit the child to benefit educationally from
that instruction.” Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S.
176, 203-04 (1982).
the IEP is created, the school district must provide the
child with an appropriate educational placement that is in
line with the IEP. See Alston v. D.C., 439 F.Supp.2d
86, 90 (D.D.C. 2006). A child's appropriate educational
placement should be in the least restrictive environment
possible. See Brown v. D.C., 179 F.Supp.3d 15, 26-27
(D.D.C. 2016). If the child's appropriate educational
placement is in the regular classroom of a public education
system, the IEP “should be reasonably calculated to
enable the child to achieve passing marks and advance from
grade to grade.” Rowley, 458 U.S. at 204. But,
if there is no public school which is suitable, the school
district “must pay the cost of sending the child to an
appropriate private school.” Reid ex rel. Reid v.
District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005)
(internal quotations omitted).
Motion, Plaintiff filed a separate “Statement of
Material Facts Not In Dispute.” However, as judicial
review in this case is based on the administrative record,
Plaintiff should instead have included “a statement of
facts with references to the administrative record.”
LCvR 7(h)(2). Nevertheless, the Court will consider
Plaintiff's “Statement of Material Facts Not In
Dispute” in conjunction with Defendant's Statement
of Facts in explaining the case's factual background.
Z.B. has been identified as eligible for special education
and related services based on his disability classification
of Autism Spectrum Disorder. AR 6. Z.B. was enrolled at and
attended Kingsbury, a nonpublic school in Washington D.C.,
through the end of the 8th grade.
in 2016, Plaintiff and Mark Branham, with whom Plaintiff
shares custody of Z.B., became concerned that Kingsbury was
not an appropriate school for Z.B. AR 10004-09 (Mr.
Branham's testimony that “I didn't think
Kingsbury was serving his needs and in fact neither did
[Plaintiff]”). These concerns were based on fears that
Kingsbury was not meeting Z.B.'s needs and issues with
other students. AR 1007-08. Plaintiff attempted, through the
school lottery, to place Z.B. at Capitol Hill Montessori, a
public, general education school for the 2016-2017 school
year. AR 491-92. But, Capitol Hill Montessori indicated that
it could not meet Z.B.'s needs. AR 948-49. Following
Z.B.'s rejection from Capitol Hill Montessori, Defendant
agreed that, rather than an inclusion setting, “other
nonpublic placement that offered different supports than what
Kingsbury had” should be considered. AR 945-46. Because
Defendant concluded that Kingsbury was not providing Z.B.
with adequate support, Defendant began considering other
nonpublic locations for Z.B. AR 946, 949-50, 955-57, 968-69.
approximately June 2016, at Plaintiff's suggestion, Z.B.
underwent an independent comprehensive psychological
evaluation (“IEE”) paid for by Defendant. AR
315-26. Plaintiff hoped that the IEE would show that Z.B. had
a disability categorization other than autism and was
prepared to move into a less restrictive setting. However, in
September 2016 during a meeting to review the IEE, Plaintiff,
Defendant, and other members of Z.B.'s Kingsbury
education team determined that autism was Z.B.'s correct
diagnosis. AR 541-42 (indicating that “everyone agreed
with the autism disability category”). Plaintiff agreed
that Z.B. would not be successful in a general education
setting. AR 546 (indicating that Plaintiff “accepted
the decision of the team”). Additionally, the parties
decided to allow Z.B. to remain at Kingsbury until Z.B's
location of services could be further discussed at his
October 2016 IEP meeting.
the September 2016 meeting, Defendant sent referrals for Z.B.
to attend other non-public schools which could implement his
IEP. AR 956-59 (stating that “the referrals were still
rolling in”). However, Plaintiff refused to allow Z.B.
to visit those schools as she did not think that they would
meet Z.B.'s needs. See AR 958-59 (stating that
Plaintiff “did not” cooperate with the referral
process), 961-62 (indicating that Plaintiff refused to go on
a tour of a potential school), 988 (stating that Plaintiff
declined to meet with Defendant).
October 2016, Z.B.'s IEP team met. Z.B. was classified
with Autism Spectrum Disorder. AR 270. The IEP stated that
Z.B.'s education program would include: 26 hours per week
of specialized instruction, 480 minutes per month of
occupational therapy, 360 minutes per month of physical
therapy, 240 minutes per month of speech-language pathology,
and 360 minutes per month of behavioral support services. AR
287. Plaintiff agreed with the substance of Z.B.'s IEP.
AR 502 (indicating that Plaintiff was present at the IEP
meeting and agreed with its content).
January 2017, Selena Barlow of DCPS became the nonpublic
monitor specialist in charge of Z.B.'s case. AR 1023. Mr.
Branham discussed with Ms. Barlow his concerns about
Z.B.'s placement at Kingsbury. AR 1027-28. Ms. Barlow
conducted a review of Z.B.'s documents and performed
three observations of Z.B. at Kingsbury. AR 1049-52
(discussing an observation of Z.B.), 1070-72 (discussing
another observation of Z.B.). Based on her observations, Ms.
Barlow became concerned about Z.B.'s location of
services. Ms. Barlow noted that Z.B. was not engaged during
class and that he had problems contributing to the class,
following instructions, organizing his work, completing
tasks, and behaving appropriately. AR 1048, 1051-53, 1056.
Ms. Barlow noted that, despite his behavioral difficulties,
Z.B. did not have a formal Behavioral Implementation Plan
(“BIP”) at Kingsbury. AR 1062 (discussing the
need for a BIP based on the lack of “engagement”
and “disruptive behaviors”). Based on these
observations, Ms. Barlow determined that the individualized
behavior programming for Z.B. was not adequate and that
Kingsbury was not meeting Z.B.'s behavioral needs. AR
1066-70. Additionally, after reviewing Z.B.'s IEE, Ms.
Barlow found Z.B.'s scores to be “very
concerning” and indicative of a lack of progress. AR
1109-10, 1115-17 (explaining that Z.B. “is in school
but he is not engaged in instruction and this has clearly
been reflected in his scores with the educational testing
that he is not learning a whole lot”). Ms. Barlow's
concerns about Z.B.'s academic and behavior progress at
Kingsbury were informed by other experiences in which
Kingsbury had not met the academic and behavioral needs of
various students. AR 1182, 1186.
contests Ms. Barlow's observations and determinations,
arguing that other record evidence shows that Z.B. regularly
met his behavioral goals and was progressing academically. AR
319-23 (showing academic achievement), 414-422 (behavioral
trackers). However, Ms. Barlow's observations and
findings were consistent with those of others on the
Kingsbury staff. For example, Kingsbury's clinical
psychologist noted that during the 2015-16 school year, Z.B.
sought behavioral and emotional support more often than was
scheduled. He was also aware of concerns about Z.B.'s
lack of a formal BIP. AR 678-79, 687. Additionally, a
Kingsbury teacher indicated that Z.B. had difficulty
maintaining proper behavior and remaining focused during
classes. AR 747-53.
Ms. Barlow's observations, Defendant continued to attempt
to find a new location of services that would meet Z.B.'s
educational and behavioral needs. AR 1083 (Ms. Barlow's
testimony that “I was highly concerned and I didn't
want that to continue so I was quickly developing the opinion
that a new location service was needed”). Defendant
sent Plaintiff and Mr. Branham several letters attempting to
set up a meeting to discuss a change in location of services
as well as suggesting potential locations. AR 264 (suggesting
three schools on April 14, 2017), AR 234 (suggesting two
schools on June 6, 2017), see also AR 1084-85
(requesting meeting to discuss change in location), 1092
(same), 1094-95 (same). Based on these letters, Plaintiff
understood that Defendant was concerned about Z.B.'s
location of services at Kingsbury. AR 556-57. Plaintiff
further understood that, because they were unable to move
forward with the referral process, Defendant was
“forced to keep [Z.B.] in a location that [they did]
not see is appropriate.” AR 557. However, Plaintiff did
not permit Z.B. to attend visits at the suggested alternative
locations. AR 234 (letter noting Plaintiff's refusal to
allow Z.B. to visit other schools), 1097 (noting that
referrals to other schools were cancelled because Plaintiff
would not participate).
2017, Defendant attempted to schedule a meeting prior to the
end of the school year with both parents and Z.B.'s
education team at Kingsbury. However, the only date on which
Plaintiff and the Kingsbury team were both available to meet
was May 25, 2017 at 1:30 p.m. Defendant could not attend at
that time because Defendant had a meeting concerning another
student at Kingsbury at 2:00 p.m. that day. AR 390-402.
Defendant, Plaintiff, and Z.B.'s Kingsbury team were not
able to conduct a meeting prior to the end of the school
year; however, Defendant continued working to persuade
Plaintiff to engage in the referral process. Due to
Plaintiff's refusal to engage in the referral process,
Z.B. was not accepted at other potential service locations.
See, e.g., AR 1097 (indicating that Z.B.'s
referrals to two schools were cancelled because Plaintiff
would not cooperate).
approximately July 2017, Defendant began working with Mr.
Branham in pursuing a referral to Kennedy Krieger school for
Z.B. Defendant did not include Plaintiff in this referral
process. AR 1099 (noting that Ms. Barlow did not include
Plaintiff in the referral). In determining if Kennedy Krieger
would be an appropriate location for Z.B., Ms. Barlow visited
the classes that Z.B. would attend, spoke with the teacher,
and observed the services and supports. AR 1103-04. In
addition, Mr. Branham visited the school with Z.B. and was
“really impressed” with the learning environment.
AR 1010-11. Plaintiff argues that Defendant's decision to
work with Mr. Branham instead of with Plaintiff on the
referral to Kennedy Krieger violated a 2015 “Divorce
and Custody Order” giving Plaintiff “tie-breaking
authority” in the case that good-faith efforts did not
result in a shared decision between Plaintiff and Mr.
Branham. AR 405, 408.
August 7, 2017, Z.B. was accepted to Kennedy Krieger, and two
days later Defendant informed Plaintiff and Mr. Branham that
“Kennedy Krieger Montgomery County Campus has been
identified as [Z.B.'s] location of services.” AR
306-07. Z.B. could have begun classes on August 28, 2017. AR
304. Consistent with Z.B.'s IEP, Kennedy Krieger offered
the following services: 30 hours per week of classroom
instruction, 22 hours per week of classroom instruction in
July, 480 minutes of occupational therapy per month, 360
minutes of physical therapy per month, 240 minutes of direct
speech and language therapy per month, and 360 minutes of
behavioral support services per month. AR 304. Kennedy
Krieger indicated that it would be able to implement
Z.B.'s IEP and develop a formal BIP. AR 901.
August 11, 2017, Plaintiff filed a due process complaint. AR
21-28. The hearing officer identified the following issues
• “Whether DCPS denied [Z.B] a FAPE by failing to
involve [Plaintiff] in the placement determination in summer
2017. DCPC [sic] circumvented [Plaintiff's] full
involvement in the placement determination, though it was
aware of Parents' court ordered custody agreement.
• Whether DCPS denied [Z.B.] a FAPE by failing to
convene an IEP meeting at a date and time convenient to
[Plaintiff] in spring 2017.
• Whether DCPS denied [Z.B.] a FAPE by failing to
provide [Plaintiff] with a copy of [her] procedural due
process rights when it changed ...