UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
N.L., et al.,
Plaintiffs, v. No. 24-cv-3165 District of Columbia,
Defendant.
REPORT AND RECOMMENDATION
Plaintiffs, N.L. and her parents, bring this action against the District of Columbia Public
Schools (“DCPS”), alleging violations of the Individuals with Disabilities Education Act
(“IDEA”). See 20 U.S.C. § 1400–82.
Plaintiffs filed a Motion for Summary Judgment. See Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”)
1, ECF No. 15. Defendant filed a Cross Motion for Summary Judgment requesting that this Court
uphold the Hearing Officer Decision (“HOD”). See Def.’s Cross Mot. Summ. J. & Opp’n to Pls.’
Mot. Summ. J. (“Def.’s Cross Mot.”) 1, ECF No. 19. The undersigned recommends DENYING
Plaintiffs’ Motion for Summary Judgment and GRANTING Defendant’s Cross Motion for
Summary Judgment.
I. BACKGROUND
A. Statutory Framework
The IDEA aims to provide “every child [with] a meaningful opportunity to benefit from
public education.” Boose v. Dist. of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015). Congress
enacted the IDEA to “ensure that all children with disabilities have available to them a free
1 appropriate public education [(“FAPE”)] 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). “While the District of Columbia is required to
provide a FAPE to disabled students, it is not required to, and does not guarantee, any particular
outcome or any particular level of academic success.” Holman v. Dist. of Columbia, 153 F. Supp.
3d 386, 389–90 (D.D.C. 2016) (citing Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v.
Rowley, 458 U.S. 176, 192 (1982)).
To satisfy the FAPE requirement, “school districts must develop a comprehensive plan,
known as an individualized education program [(“IEP”)], for meeting the special-educational
needs of each student with a disability.” K.S. v. Dist. of Columbia, 962 F. Supp. 2d 216, 220 (D.D.C.
2013) (citing 20 U.S.C. § 1414(d)(2)(A)). “The IEP is a written statement that is reviewed annually
and includes goals and instructional objectives for the student’s education, services to be provided,
projections regarding the dates on which such services are to be offered, and criteria for evaluating
whether instructional objectives are met.” Holman, 153 F. Supp. 3d at 389 (citing 20 U.S.C. §§
1401(14), 1414(d)(1)(A)). The IEP must be “reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas
Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017).
“Once the IEP is developed, the school system must provide an appropriate educational
placement that comports with the IEP. . . [and if] no suitable public school is available, the school
system must pay the costs of sending the child to an appropriate private school.” B.B. v. Dist. of
Columbia, 20-cv-2467, 2022 WL 834146, at *2 (D.D.C. March 21, 2022) (citations and quotation
marks omitted). Parents who place their child in private school rather than follow a public school’s
IEP “are entitled to reimbursement only if a federal court concludes both that the public placement
2 violated IDEA and that the private school placement was proper under the Act.” Florence Cnty.
Sch. Dist. Four v. Carter By & Through Carter, 510 U.S. 7, 15 (1993).
“[A]ny party” may present a due process complaint “with respect to any matter relating to the
identification, evaluation, or educational placement of the child or the provision of a [FAPE] to
such child.” 20 U.S.C. § 1415(b)(6)(A). “Whenever a complaint has been received under
subsection (b)(6) . . . the local educational agency involved in such complaint shall have an
opportunity for an impartial due process hearing, which shall be conducted by the State educational
agency or by the local educational agency.” Id. § 1415(f)(1)(A). Any party may appeal that decision
in court. See id. § 1415(i)(2)(A).
B. Background
During the 2021–2022 school year, N.L. was a student at Lab School of Washington
(“Lab”). See AR at 7; 24. In May 2022, Plaintiffs met with DCPS staff for an IEP annual review.
See id. at 7. At that meeting, Plaintiffs informed DCPS that they were seeking to transfer N.L. from
Lab to either the Harbour School (“Harbour”) or the Katherine Thomas School (“KTS”). See id.
DCPS agreed to place N.L. at KTS because Harbour, a private school in Maryland for children
with learning disabilities, did not have a certificate of approval (COA) from the Office of the State
Superintendent of Education. See id. On May 25, 2022, DCPS offered N.L. placement at KTS for
the 2022–2023 school year. See id. On July 18, 2022, Plaintiffs’ counsel informed DCPS that they
would instead enroll N.L. at Harbour and requested that DCPS fund the placement. See id. DCPS
declined to do so. See id. at 8.
On August 18, 2022, N.L. started 9th grade at Harbour. Id. Harbour created and
implemented an IEP for N.L. See id. N.L.’s 2022–2023 year-end transcript reflects incomplete
3 grades in seven classes and a pass in one class, earning 2 credits and 0 units toward graduation. Id.
at 337.
In May 2023, N.L.’s IEP expired. See id. at 17. On July 25, 2023, DCPS conducted an
eligibility meeting for N.L. See id. at 10. DCPS determined that N.L. was eligible for special
education and related services. See id. at 10; 780. By August 2023, N.L. still had not received a
proposed placement from DCPS. See id. at AR 17; 1104–05. On August 3, 2023, Plaintiffs’ counsel
notified DCPS that they would again enroll N.L. at Harbour for the 2023–2024 school year. See
id. at 11. Plaintiffs requested that DCPS pay N.L.’s tuition. See id. DCPS again declined to do so.
See id.
On October 23, 2023, DCPS developed a renewed IEP for N.L. See id. at 12. The IEP
provided for placement in a full-time special education setting in a non-public school. See id. After
this meeting, DCPS sent applications to 16 schools for N.L. See id. at 12; 1146. The Children’s
Guild accepted N.L. See id. at 12. Plaintiffs’ counsel declined the placement, citing the student
body make-up, the progress N.L. was making at Harbour, and Harbour’s proximity to N.L.’s home.
See id. On July 17, 2024, DCPS issued notice that it would continue N.L.’s placement at the
Children’s Guild. See id. at 13. Plaintiffs’ counsel informed DCPS that N.L. would enroll at
Harbour for the 2024–2025 school year and requested that DCPS pay N.L.’s tuition. See id. DCPS
again declined to do so. See id.
On June 7, 2024, Plaintiffs filed an administrative complaint against DCPS, alleging denial
of a FAPE by failing to provide appropriate education placements for the 2022–2023 and 2023–
2024 school years. See id. at 50–57. Hearing Officer (“HO”) Banks found that while DCPS failed
to provide a FAPE to N.L., Harbour was not an appropriate placement. See id. at 19; 22. Thus,
Plaintiffs were not entitled to tuition reimbursement or prospective placement at Harbour. See id.
4 at 22. HO Banks ordered DCPS to find an appropriate placement for N.L. for the remainder of the
2024–2025 school year. See id. at 23. Plaintiffs appeal the denial of reimbursement and refusal to
place N.L. at Harbour. See Pls.’ Mot. at 2.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) provides that a court must grant summary judgment
when “there is no genuine issue as to any material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986) (quoting Fed. R. Civ. P. 56(c)). The court must view the facts “in the light most
favorable to the party opposing the motion.” Williams v. Wash. Metro. Area Transit Auth., 721 F.2d
1412, 1414–15 (D.D.C. 1983) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962)).
Summary judgment under the IDEA “is not a true summary judgment procedure.” L.R.L.
ex rel. Lomax v. Dist. of Columbia, 896 F. Supp. 2d 69, 73 (D.D.C. 2012) (quoting Ojai Unified
Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993). “Instead, the district court essentially
conduct[s] a bench trial based on a stipulated record.” Id. Therefore, “[a] motion for summary
judgment operates as a motion for judgment based on the evidence comprising the record and any
additional evidence the Court may receive.” N.W. v. Dist. of Columbia, 253 F. Supp. 3d 5, 12
(D.D.C. 2017) (quoting D.R. ex rel. Robinson v. Dist. of Columbia, 637 F. Supp. 2d 11, 16 (D.D.C.
2009)).
The burden is on the plaintiff to prove by a preponderance of the evidence that the hearing
officer was wrong. See 20 U.S.C. § 1415(i)(2)(C)(iii); Pavelko v. Dist. of Columbia, 288 F. Supp.
3d 301, 306 (D.D.C. 2018). “While the court must make an independent determination, the court
also should give ‘due weight’ to the decision of the hearing officer and should afford some
deference to the expertise of the hearing officer and the school officials.” Middleton v. Dist. of
Columbia, 312 F. Supp. 3d 113, 129 (D.D.C. 2018) (quoting D.K. v. Dist. of Columbia, 983 F.
5 Supp. 2d 138, 144 (D.D.C. 2013)). In accordance with this deference, “[f]actual findings from the
administrative proceeding are to be considered prima facie correct,” D.R. ex rel. Robinson, 637 F.
Supp. 2d at 16 (quoting S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir.
2003)), “unless [the court] can point to contrary nontestimonial extrinsic evidence on the record,”
A.A. v. Dist. of Columbia, No. 16-cv-248, 2017 WL 11589194, at *6 (D.D.C. Apr. 20, 2017)
(quoting Savoy v. Dist. of Columbia, 844 F. Supp. 2d 23, 30 (D.D.C. 2012)). Courts should not
“substitute their own notions of sound educational policy for those of the school authorities which
they review.” Rowley, 458 U.S. at 206. Still, courts are to offer “‘less deference than is
conventional’ in administrative proceedings.” Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516,
521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1989)). Pure
questions of law, however, are reviewed de novo. See id.
III. DISCUSSION
A. Additional Evidence
The IDEA states that district courts “shall hear additional evidence at the request of a party.”
20 U.S.C. § 1415(i)(2)(C)(ii). “Despite the statute’s use of the word ‘shall,’ the D.C. Circuit has
held that district courts have broad discretion to accept or reject additional evidence.” Carson v.
Dist. of Columbia, 187 F. Supp. 3d 197, 200 (D.D.C. 2016). In exercising that discretion, the court
should not only consider whether the evidence is relevant to the challenged decisions of the hearing
officer, but also guard against accepting evidence that is not “merely supplemental to the
administrative record” or would cause federal court review to “rise to the level of a de novo trial.”
Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1241 (10th Cir. 2009)
(quoting L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004)).
“‘Supplementation’ of the administrative record may be justified by ‘gaps in the ad administrative
6 transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of
evidence by the administrative agency[.]’” Smith v. Dist. Of Columbia, 12-cv-2058, 2013 WL
4041451, at *3 (D.D.C. July 9, 2013) (quoting Town of Burlington v. Dep’t of Educ. for Mass., 736
F.2d 773, 790 (1st Cir. 1984)).
1. Evidence Predating the Hearing
Plaintiffs seek to admit two sets of reports that predate the administrative hearing: quarterly
progress reports from the 2022–2023 school year and an IEP progress reports from the 2023–2024
school year. See Pls.’ Mot. at 26–28.
Plaintiffs state that they “mistakenly left [the reports] out of the disclosure.” Pls.’ Mot. at
27. But “federal court . . . is not the forum in which a litigant may pick up the sticks she dropped
in an administrative hearing.” Wade v. Dist. of Columbia, 20-cv-1433, 2021 WL 3663630, at *5
(D.D.C. Aug. 18, 2021). As such, “negligen[ce] in failing to submit [evidence]” is an insufficient
justification for supplementation. See MacKay v. Quigg, 641 F. Supp. 567, 570 (D.D.C. 1986)
(quoting California Research Corp. v. Ladd, 356 F.2d 813, 821 n.18 (D.C. Cir. 1966). An omission
that stemmed from circumstances outside of Plaintiffs’ control could have been sufficient
justification, but Plaintiffs have not shown that here. See Smith, 2013 WL 4041451 at *3.
Plaintiffs argue that it was either DCPS’s or HO Banks’s error that the reports were not
admitted. See Pls.’ Mot. at 27. However, “[i]n IDEA administrative hearings, ‘the party who filed
for the due process hearing shall bear the burden of production.’” Uhlenkamp v. Dist. of Columbia,
691 F. Supp. 3d 224, 236 (D.D.C. 2023) (citing D.C. Code § 38-2571.03(6)(A)). As such, Plaintiffs
alone had the duty to submit the evidence on which they wanted the HO to rely. See Brandon H.
ex rel. Richard H. v. Kennewick Sch. Dist. No. 1, 82 F. Supp. 2d 1174, 1181 (E.D. Wash. 2000).
Their failure to do so bars supplementation now. See, e.g., Carson, 187 F. supp. 3d at 201 (denying
7 plaintiff’s request to admit emails she had at the time of the administrative hearing but failed to
submit into evidence, noting that “the various reasons for supplementing the administrative record
focus on evidence that is . . . omitted from the record due to some error in the hearing process by
the agency.”).
Separately, Plaintiffs argue that HO Banks had an independent duty to ask for the
unadmitted progress reports. See Pls.’ Mot. at 27. Plaintiffs’ source for this duty is the Dispute
Resolution Standard Operating Procedures Manual (“SOP”). See id. at 24–25. Yet the manual
only states that “the [HO] may [] ask questions of the witnesses . . . And allow parties to present
rebuttal evidence.” SOP at 31. This language is permissive and discretionary. C.f. Stevens Shipping
Co. v. Kinlaw, 99-cv-1954, 2000 WL 1804524, at *3 (4th Cir. Dec. 8, 2000) (ALJs’ authority to
consider a modification request “is clearly permissive and not mandatory.”). The SOP does not
mandate that an HO ask certain questions, much less seek out documents that petitioners may have
left out. C.f. Appalachian Power Co. v. E.P.A., 135 F.3d 791, 807 (D.C. Cir. 1998) (“when a statute
uses the permissive ‘may’ rather than the mandatory ‘shall,’ [it] suggests that Congress intends to
confer some discretion on the agency”); Phasoulas v. Astrue, 10-cv-63, 2011 WL 2447455, at *5
(W.D.N.C. May 18, 2011), report and recommendation adopted, 2011 WL 2416096 (W.D.N.C.
June 15, 2011) (regulation stating that “ALJ may need to obtain” certain information “does not
require” the ALJ to do so).
2. Evidence Postdating the Hearing
“While ‘judicial review under the IDEA does look backward to some extent’ and may
therefore warrant the review of evidence arising after the administrative hearing, ‘[j]udicial
review . . . under the IDEA is largely prospective.’” M.K-N. v. Dist. Of Columbia, 12-cv-1123,
2013 WL 3376773, at *3 (D.D.C. July 5, 2013) (quoting Schaffer ex rel. Schaffer v. Weast, 554
8 F.3d 470, 476–78 (4th Cir. 2009). “The court should accordingly examine the appropriateness of
[placement] at the time [the school district decided it] and should consider a review of post-hearing
evidence sparingly.” M.K-N., 2013 WL 3376773 at *3. “Introduction of post-hearing evidence
undercuts the prospective nature of judicial review and ‘would simply not be fair to school districts,
whose decisions would be judged in hindsight’ based on an assessment of a student’s needs at a
later time.” Id. (quoting Schaffer, 554 F.3d at 476).
Plaintiffs seek to introduce progress reports from the 2024–2025 school year, which
postdate both the administrative hearing and HOD, to show that Harbour was an appropriate
placement. See Pls.’ Mot. at 27–28. However, these reports are post-hearing evidence that would
serve as “hindsight evidence,” which is not typically admitted. See Philpot v. Dist. of Columbia,
23-cv-671, 2025 WL 1305284, at *1 (D.D.C. May 6, 2025); Edward M.R. v. Dist. of Columbia,
128 F. 4th 290, 295 (D.C. Cir. 2025) (HO’s conclusion about the adequacy of an IEP must be based
on information “as of the time each IEP was created rather than with the benefit of hindsight”);
Z.B. v. Dist. of Columbia, 888 F.3d 515, 524 (D.C. Cir. 2018) (same). These reports did not exist
at the time HO Banks rendered his decision. As such, admitting them would “extend beyond the
scope of this Court’s review of the HOD.” M.K-N., 2013 WL 3376773 at *3 (denying plaintiff’s
request to supplement the record with post-HOD IEP meeting notes because they did not exist at
the time of the hearing).
In addition, courts should not admit evidence postdating the administrative hearing where
“granting [the] request would result in a trial de novo.” B.G. by J.A.G. v. City of Chicago Sch. Dist.
299, 243 F. Supp. 3d 964, 977 (N.D. Ill. 2017). In Carson v. Dist. of Columbia, the court found
that admitting meeting notes and an IEP that the school created after the HO rendered her decision
“r[an] the risk converting the proceeding into a de novo trial.” 187 F. Supp. 3d 197, 204 (D.D.C.
9 2016). This was because the “new evidence [sought] to challenge the [HO’s] finding that Plaintiff
failed to meet her burden by supplementing the record with information that was not presented to
the [HO] at the time.” Id. Similarly, admitting reports that did not exist when HO Banks rendered
his decision would require this Court to make new factual findings on N.L.’s progress, resulting in
an impermissible trial de novo. See id. Therefore, the Court will not admit this evidence.
B. Witness Testimony
The HO, as “the trier of fact at the due process hearing,” has the “responsibility to
determine how much weight to give the evidence.” A.I. ex rel. Iapalucci v. Dist. of Columbia, 402
F. Supp. 2d. 152, 170 (D.D.C. 2005). An HO’s credibility determinations “deserve deference unless
non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or unless the
record read in its entirety would compel a contrary conclusion.” Carlisle Area Sch. v. Scott P. By
& Through Bess P., 62 F.3d 520, 528 (3d Cir. 1995); see, e.g., J.N. v. Dist. of Columbia, 677 F.
Supp. 2d 314, 322 (D.D.C. 2010). However, HO determinations that lack reasoned and specific
findings deserve little deference from a court. See Turner v. Dist. of Columbia, 952 F. Supp. 2d 31,
36 (D.D.C. 2013).
First, Plaintiffs argue that HO Banks improperly discredited Dr. Solomon’s opinion
because HO Banks is biased against retained experts. See Pls.’ Mot. at 21–22. “When reviewing
[such a claim], we begin with the presumption that the [HO] is unbiased.” Keith v. Barnhart, 473
F.3d 782, 788 (7th Cir. 2007). Plaintiffs cite to an order by HO Banks in another matter where he
stated that “[his] experience with educational advocates in this jurisdiction is that they generally
perform as advocates for their clients’ interests rather than as impartial, objective advisers.” See
Pls.’ Mot. at 21 (quoting Pls.’ Ex. 1, ECF No. 15-2, C.M. v. Dist. of Columbia, Order on Motion to
Permit Observation, Mar. 28, 2025). But Plaintiffs offer no evidence that HO Banks’s remarks in
10 an unrelated matter impacted his credibility determination of Dr. Solomon. This ends the inquiry.
“It is only after a petitioner has demonstrated that the decisionmaker ‘displayed deep-seated and
unequivocal antagonism that would render fair judgment impossible’ that the presumption is
rebutted, the findings set aside, and the matter remanded for a new hearing.” Keith, 473 F.3d at
788 (quoting Liteky v. United States, 510 U.S. 540, 556 (1994)). Plaintiffs made no such
demonstration here. Moreover, an ALJ “can ordinarily participate in an adjudication after opining
on disputed issues in the course of other proceedings. After all, judges must often decide issues
after squarely deciding the same issues in other proceedings.” Zen Magnets, LLC v. Consumer
Prod. Safety Comm’n, 968 F.3d 1156, 1171 (10th Cir. 2020).
Second, Plaintiffs argue that HO Banks failed to adequately explain why he discredited
Dr. Solomon’s testimony because his explanation was not “statement-by-statement or issue-by-
issue.” Pls.’ Mot. at 22–23. Plaintiffs rely on W.S. v. Dist. of Columbia to support their claim that
courts require a statement-by-statement analysis when discounting expert testimony. See id. at 22
(citing 502 F. Supp. 3d 102, 123 (D.D.C. 2020)). But Plaintiffs misapply W.S. True, the W.S. court
upheld the HO’s credibility determination where that HO engaged in a statement-by-statement
analysis. See 502 F. Supp. 3d at 123. However, that court did not hold that an HO was required do
so. See id. Thus, HO Banks was under no obligation to do so here.
On the other hand, an HO’s analysis is deficient if he fails all together to consider
contradictory expert testimony. See id. at 126–27. Here, HO Banks sufficiently weighed Dr.
Solomon’s testimony against evidence in the record and explained what evidence he found more
persuasive. See AR 19–22. For example, HO Banks concluded that “despite . . . [Dr. Solomon’s]
comments at the October 23, 2023 IEP meeting that they were pleased with [N.L.]’s progress, there
is no objective evidence that [N.L.] made academic progress during the 2022–23 school year at
11 [Harbour].” AR at 21–22. These “reasonable credibility determinations [by HO Banks] are entitled
to deference,” because he “balanced the testimony of Plaintiffs’ witnesses against . . . documentary
evidence, and [] indicated when he gave more deference to one over the other.” See B.B., 2022 WL
834146 at *11; AR 19–22.
C. Harbour was not an appropriate placement for N.L.
A placement is proper under the IDEA if it is “reasonably calculated to enable the child to
receive educational benefits.” Leggett v. Dist. of Columbia, 793 F.3d 59, 71 (D.C. Cir. 2015). While
no one factor is dispositive, objective factors such as test scores, passing grades in courses, and
grade level advancement are important benchmarks in determining satisfactory progress. See e.g.,
H.W. by & through Jennie W v. Comal Indep. Sch. Dist., 32 F.4th 454, 469 (5th Cir. 2022) (“The
extent to which H.W. has progressed on her IEP goals and objectives, as well as her test scores and
percentile rankings, can aid [in determining overall academic success], but no one factor can
overwhelm it.”); see also Alex R., ex rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No.
221, 375 F.3d 603, 615 (7th Cir. 2004) (“Objective factors, such as regular advancement from
grade to grade, and achievement of passing grades, usually show satisfactory progress.”). “Parents
seeking reimbursement for a unilateral private placement bear the burden of proving that
placement was appropriate.” Fisher v. Friendship Pub. Charter School, 10-cv-886, 2012 WL
11916732, at *6 (D.D.C. Jan. 26, 2012) (citing Schaffer, 546 U.S. at 57–58).
At the outset of his analysis, HO Banks explained how he weighed the evidence: he placed
the “greatest reliance” on objective data like evaluations and standardized tests, “somewhat less
reliance” on grades because “there is necessarily an element of subjectivity,” and even less reliance
on progress reports because “they are more subjective [than grades] and the authors are not usually
12 available to testify.” AR at 20. HO Banks stated that “testimony of experts and parents is persuasive
to the extent that their opinions are supported by objective data in the record.” Id.
This “court should defer to the [HO’s] determination of the weight to give the evidence.”
Edward M.R., 660 F. Supp. 3d at 155 (citing B.B., 2022 WL 834146 at *10 (“A hearing officer in
an IDEA administrative proceeding is the trier of fact and responsible for determining how much
weight to give the evidence[.]”). HO Banks repeatedly explained his concern with the lack of
objective evidence presented by Plaintiffs. See AR at 21–22. Plaintiffs offered no standardized test
results from Harbour—despite N.L. having completed two years there—from which HO Banks
could have discerned N.L.’s performance. See id. at 21. And while Plaintiffs admitted N.L.’s 2022–
2023 report card—which reflected incomplete grades in seven classes—they did not admit her
report card for the 2023–2024 year. See id. at 22; 337. This again deprived HO Banks of an
objective metric of success. HO Banks was also concerned that Plaintiff “offered no testimony
from [Harbour] as to its suitability for [N.L.]” given that petitioners typically offer such testimony
where they seek to justify unilateral placement. See id. at 21. HO Banks was within his discretion
to conclude that Plaintiffs failed to meet their burden of proof that Harbour was an appropriate
placement because of these gaps in the evidence. See Fisher, 2012 WL 11916732 at *6.
Instead, Plaintiffs relied on IEP progress reports to demonstrate that Harbour was an
appropriate placement for N.L. See id. at 21. Plaintiffs argue that HO Banks failed to properly
consider these reports.1 See Pls.’ Mot. at 15–18. Plaintiffs are mistaken. HO Banks considered
1 Relying on Bd. of Educ. of Fredrick Cnty. v. I.S. ex rel. Summers, Plaintiffs argue that N.L. achieving some of her IEP goals is a critical measure of progress. See Pls.’ Mot. at 17. Not so. The Bd. of Educ. of Fredrick Cnty court found that not achieving IEP goals demonstrated that the student failed to make significant progress. See 325 F. Supp. 2d 565, 583 (D. Md. 2004). Plaintiffs argue that the reverse must also be true: achieving most of the IEP goals equals significant progress. See Pls.’ Mot. at 17–18. This is “the fallacy of the inverse (otherwise known as denying the
13 those progress reports but found them to be unpersuasive and due “little weight.” AR at 21. This
was because while these reports showed that N.L. achieved her goals in reading and writing, they
contradicted her report card which “indicated that s/he earned no credit in either subject.” Id. It
was well within HO Banks’s discretion to find some evidence more persuasive than others. See
Cloud v. United States, 17-cv-316, 2019 WL 1924363, at *7 (D.D.C. Apr. 30, 2019). In discounting
the persuasiveness of the progress reports, HO Banks was “utilizing his knowledge and experience
such that judicial deference to his expertise is especially appropriate.” Block v. Dist. of
Columbia, 748 F. Supp. 891, 896 (D.D.C. 1990). Indeed, HO Banks was under no obligation to
“offer a detailed explanation for why he gave more weight to Defendants’ evidence than to
Plaintiffs’ evidence.” Iapalucci, 402 F. Supp. 2d at 170. “There are strong policy considerations
for providing the [HO] such leeway; as the [HO]—as opposed to this Court—has an opportunity
to hear testimony in person, examine the demeanor of the witness and reactions of the participants,
and can bring immeasurable experience and expertise in this specialized area.” Id.
D. Denial of FAPE Does Not Entitle Plaintiffs to Requested Remedy
An HO has “broad discretion to fashion an appropriate remedy” after finding a denial of
FAPE. B.D. v. Dist. of Columbia, 817 F.3d 792, 797–98 (D.C. Cir. 2016) (quoting Boose v. Dist.
of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015)). For example, an HO can require tuition
reimbursement. See Lomax, 896 F.Supp.2d at 76. However, reimbursement is “only [permissible]
antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q.” N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J., concurring). Regardless, this Court need not consider this leap in logic because HO Banks’s analysis was not limited to IEP goal achievements.
14 if a federal court concludes both that the public placement violated IDEA and that the private
school placement was proper under the Act.” Florence Cnty., 510 U.S. at 15.
Plaintiffs argue that courts cannot “award [] nothing” where there was a denial of FAPE.
Pls.’ Mot. at 11–13. Plaintiffs rely heavily on two cases to support their claim: Forest Grove Sch.
Dist. v. T.A., 557 U.S. 230 (2009) and Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ.
of Mass., 471 U.S. 359 (1985). See id. However, both cases hold only that reimbursement of private
school tuition is not categorically precluded by the IDEA. See Forest Grove, 557 U.S. at 247;
Burlington, 471 U.S. at 369–70. Neither case holds that tuition reimbursement is mandated if there
is a denial of a FAPE. In fact, the Burlington Court held that the tuition reimbursement
determination was predicated on whether “[the private school] placement, rather than a proposed
IEP, is proper under the Act.” 471 U.S. at 369. The Burlington Court warned that “parents who
unilaterally change their child’s placement during the pendency of review proceedings, without
the consent of state or local school officials, do so at their own financial risk.” Id. at 373–74.
Indeed, courts have refused tuition reimbursement despite a denial of FAPE. For example,
in Anthony B. Through Thomas B. v. Colonial Sch. Dist., the HO found that the school district had
denied the plaintiff a FAPE. See 22-cv-1640, 2023 WL 5227108, at *1 (3d Cir. July 26, 2023).
However, the HO found that there was “no reliable evidence that [plaintiff’s] private school
placement was appropriate” and thus denied reimbursement. Id. The Third Circuit affirmed the
HO’s denial, holding that because the evidence failed to show that the private placement
“provide[d] significant learning and confer[red] meaningful benefit” the placement was improper
and denial of reimbursement was appropriate. Id. (quoting Mary T. v. Sch. Dist. of Phila., 575 F.3d
235, 242 (3d Cir. 2009). Because Harbour was not an appropriate placement, see supra, HO Banks
was not obligated to award tuition reimbursement. See Anthony B., 2023 WL 5227108 at *1.
15 Similarly, with respect to prospective placement, the IDEA requires that it be an
appropriate placement. See K.B. v. Dist. of Columbia, 13-cv-0649, 2015 WL 5191330, at *13
(D.D.C. Sept. 4, 2015). A plaintiff’s “preference for a different, specific placement does not supply
a basis for the Court to find that the [HO] erred as a matter of law in finding that he could not
legally order DCPS to fund [the student’s] placement at [the parents’ chosen school.]” Dobbins v.
Dist. of Columbia, 15-cv-0039, 2016 WL 410995 at *8. (D.D.C. February 2, 2016). Plaintiffs argue,
citing one sentence in Carter, that the standard for “proper” placement by parents is lower than
that of an “appropriate” placement by a school district. See Pls.’ Mot. at 14–15 (citing Carter By
and Through Carter v. Florence County School Dist. Four, 950 F.2d 156, 164 (4th Cir. 1991)).
However, Plaintiffs failed to include the following sentence which concludes that “a private school
placement is proper under the Act if the education provided by the private school is reasonably
calculated to enable the child to receive educational benefits,—the same standard by which the
appropriateness of a public school’s IEP is assessed.” Carter, 950 F.2d at 164 (internal quotations
and citation omitted). Again, because Harbour was not an appropriate placement for N.L.,
Plaintiffs are not entitled to prospective placement there. See Philpot, 2025 WL 1311025 at *7
(affirming HO’s determinations that a remedy of prospective placement was “unwarranted”
because there was little evidence that the plaintiff’s preferred school would address the student’s
needs better than DCPS’s proposed program).
16 IV. RECOMMENDATION
For these reasons, the undersigned recommends DENYING Plaintiffs’ Motion for Summary
Judgment and GRANTING Defendant’s Cross Motion for Summary Judgment.2
Zia M.Faruqui Digitally signed by Zia M.Faruqui Date: 2026.01.23 15:01:41 -05'00' Date: January 23, 2026 ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE
2 The parties are hereby advised that, under the provisions of Local Rule 72.3(b) of the U.S. District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within fourteen days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140, 144–45 (1985).