UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) SHANISE TAYLOR, ) ) Plaintiff, ) ) Civil Action No. 09-175 (EGS) v. ) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff Shanise Taylor seeks review of an administrative
decision denying her request for relief from the District of
Columbia Public Schools (“DCPS”) for alleged violations of the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400 et seq., by failing to provide her son with a free
appropriate public education (“FAPE”). Pending before the Court
are cross-motions for summary judgment. Upon consideration of
the motions, the responses and replies thereto, the applicable
law, the administrative record, the additional evidence submitted
by plaintiff, and for the reasons stated below, the Court DENIES
without prejudice the parties’ cross-motions for summary judgment
and REMANDS this action to the hearing officer for additional
findings of fact and conclusions of law, as well as a
determination of what, if any, relief plaintiff is entitled to
receive on behalf of her son. I. BACKGROUND
Ms. Taylor is the parent of K.T., an eleven year-old boy who
attended Amidon Elementary School (“Amidon”) from the fall of
2004 - when K.T. was in kindergarten - through the 2008-2009
school year. See Pl.’s Statement of Facts Not in Dispute (“Pl.’s
SMF”) ¶ 1; Def.’s Statement of Facts Not in Dispute (“Def.’s
SMF”) ¶ 1. While at Amidon, K.T. had several behavior-related
incidents, some of which resulted in K.T.’s removal from school.
Pl.’s SMF ¶¶ 2, 5.
As a result of these incidents, Ms. Taylor requested that
K.T. be evaluated by DCPS for special education services. See
Pl.’s SMF ¶ 7 (explaining that plaintiff had begun requesting
special education evaluations for K.T. in 2006). On December 20,
2007, a Multidisciplinary Team (“MDT”) met for the first time to
develop a Student Evaluation Plan (“SEP”) for K.T. Def.’s SMF
¶ 2. The MDT recommended, among other things, that K.T. receive
a comprehensive clinical evaluation. Def.’s SMF ¶ 2; see also
Administrative Record (“AR”) 6 ¶ 2. Plaintiff, who participated
in the December 20, 2007 MDT meeting, signed a “Consent for
Evaluation” form. Def.’s SMF ¶ 3.
DCPS completed its psychological evaluation of K.T. on April
4, 2008. Pl.’s SMF ¶ 9. Its examiner found that K.T. did not
qualify for special education services as a child with an
emotional or learning disability. See Pl.’s Ex. 1 (“[T]he view
2 of this examiner is that [K.T.] does not meet the legal criteria
as detailed by the IDEA and Chapter 30 as an emotionally
disturbed child. . . . [K.T.] does not meet the disability
criteria as a Learning Disabled student.”). On April 18, 2008,
the MDT met to review the psychological evaluation and to
determine whether K.T. was eligible for special education
services. See Pl.’s SMF ¶ 11; Def.’s SMF ¶ 5. The meeting was
subsequently adjourned, however, after the MDT determined that it
needed additional information. See Pl.’s SMF ¶¶ 11-12; Def.’s
SMF ¶ 5; see also AR 58-59 (“Meeting was adjourned before
eligibility was discussed. . . . MDT determined that additional
information and/or report are required to be submitted for the
purpose of determining functioning in the school setting. This
information includes, suspension reports, office referral,
any/all pertinent reports from community connection, SST
intervention strategies as well as all educational data reports.
Ms. Taylor to provide school with contact information for
personnel at community connection[.]”).1
1 While not material to the Court’s decision, the parties dispute what additional information was needed by the MDT in order to determine K.T.’s eligibility for special education services. In particular, plaintiff contends - over the objection of DCPS - that the April 18, 2008 MDT meeting was adjourned because “DCPS determined that the psychological evaluation required amendment[.]” Pl.’s SMF ¶ 12. Having carefully reviewed the administrative record, the Court finds no support for this assertion.
3 On June 5, 2008, plaintiff notified DCPS that she would not
accept its April 4, 2008 psychological evaluation and requested
authorization to obtain an independent psychological evaluation
pursuant to 34 C.F.R. § 300.502.2 Pl.’s SMF ¶ 16; Def.’s SMF
¶ 6. After receiving no response from DCPS regarding her
request, plaintiff filed an IDEA due process complaint on
September 17, 2008.3 Pl.’s SMF ¶ 18.
Plaintiff’s due process complaint alleged, among other
things, that DCPS had failed to respond to her request for
authorization to obtain an independent evaluation at public
expense. Def.’s SMF ¶ 16; see generally AR 46. A hearing on the
administrative complaint was scheduled for October 22, 2008.
2 Section 300.502 provides, in relevant part, that “[t]he parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child.” 34 C.F.R. § 300.502(a)(1). It further states that: “If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either– (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense . . . .” 34 C.F.R. § 300.502(b)(2). 3 Although DCPS had not specifically responded to plaintiff’s request for an independent evaluation as of September 17, 2008, on September 15, 2008 - two days prior to the filing of plaintiff’s due process complaint - DCPS sent a letter to plaintiff’s counsel attempting to schedule a meeting with the MDT. Def.’s SMF ¶ 7. In its letter, DCPS proposed three alternative dates for an MDT meeting. Def.’s SMF ¶ 7. Each of these dates were rejected by plaintiff’s counsel, as were the subsequent dates proposed by DCPS. See Def.’s SMF ¶¶ 7-14 (detailing DCPS’s numerous attempts to schedule an MDT meeting in September-October 2008).
4 Def.’s SMF ¶ 17. A week prior to the hearing, however, on
October 15, 2008, DCPS sent plaintiff a letter authorizing her to
obtain an independent evaluation for K.T. Pl.’s SMF ¶ 19; Def.’s
SMF ¶ 18. The due process hearing was nevertheless held on
October 22, 2008, and the hearing officer issued her decision on
October 31, 2008 (the “October 2008 HOD”). See generally AR 4-
13.
In her decision, the hearing officer found, inter alia, that
DCPS violated a procedural obligation of the IDEA by failing to
timely respond to plaintiff’s request for an independent
evaluation of K.T. See AR 10 (“The time elapse between the
Petitioner’s request [for an independent evaluation], and the
time DCPS responded was more than 4 months. The DCPS has
provided no justification for the delay. . . . The DCPS should
have authorized the evaluation or file [sic] a complaint
defending the existing evaluation without delay. The Hearing
Officer determines the DCPS has violated a procedural
obligation.”). The hearing officer also found, however, that
K.T. “was not denied a FAPE because of the alleged procedural
inadequacy.” AR 11. Specifically, the hearing officer
determined that “[t]he Student did not prove that a failure to
get a psychological reevaluation denied the Student’s right to a
FAPE or deprive [sic] him of educational benefit.” AR 11; see
also AR 11 (“While the Petitioner has established a procedural
5 violation of the IDEA, the Petitioner has not established that
that violation caused harm to the Student that the IDEA is
intended to address.”). The hearing officer then dismissed
plaintiff’s due process complaint. AR 13.
Following dismissal of her administrative action, plaintiff
filed suit in this Court alleging violations of the IDEA and
Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794.4 On May
28, 2010, plaintiff filed a motion for summary judgment seeking
reversal of the October 2008 HOD and a declaration that DCPS
denied K.T. a FAPE “by failing to provide for an independent
evaluation of him for four months.” Pl.’s Mot. for Summary
Judgment (“Pl.’s SJ Mot.”) at 2. On July 16, 2010, the District
filed a cross-motion for summary judgment asking the Court to
affirm the October 2008 HOD. See Def.’s Mot. for Summary
Judgment (“Def.’s SJ Mot.”). These motions are now ripe for
determination by the Court.
II. STATUTORY FRAMEWORK AND LEGAL STANDARD
A. The IDEA
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
4 Plaintiff’s Rehabilitation Act claim was dismissed by this Court on February 2, 2010. See Taylor v. District of Columbia, 683 F. Supp. 2d 20 (D.D.C. 2010).
6 education, employment, and independent living.” 20 U.S.C.
§ 1400(d)(1)(A). It requires all states and the District of
Columbia to provide resident children with disabilities a FAPE
designed to meet their unique needs. Id. § 1412(a)(1).
The IDEA attempts to guarantee children with disabilities a
FAPE by requiring schools and other local educational agencies to
adopt procedures to evaluate children with suspected disabilities
and to ensure appropriate educational placement of disabled
students. See id. §§ 1413-1414. In addition, schools and school
districts must develop comprehensive plans for meeting the
special educational needs of individual disabled students. See
id. § 1414(d)(2)(A).
A parent who believes that his or her child has been denied
a FAPE is entitled to an impartial due process hearing. Id.
§ 1415(f)(1)(A). Any party aggrieved by the hearing officer’s
determination may bring a civil action challenging the decision.
Id. § 1415(i)(2)(A).
B. Standard of Review
In a district court’s review of a hearing officer’s
determination, the burden of proof is always on the party
challenging the administrative determination, who must “at least
take on the burden of persuading the court that the hearing
officer was wrong.” Reid v. District of Columbia, 401 F.3d 516,
521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884,
7 887 (D.C. Cir. 1988)). In conducting its review, the court
“(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party;
and (iii) basing its decision on the preponderance of the
evidence, shall grant such relief as [it] determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(c). A court must give
“‘due weight’” to the hearing officer’s determinations and “may
not substitute its own notions of sound educational policy for
those of the school authorities.” S.S. v. Howard Road Acad., 585
F. Supp. 2d 56, 63-64 (D.D.C. 2008) (quoting Bd. of Educ. v.
Rowley, 458 U.S. 176, 206 (1982)). Less deference, however, is
to be accorded to a hearing officer’s decision than would be the
case at a conventional administrative proceeding. See Reid, 401
F.3d at 521 (explaining that the court is “obligated by IDEA to
ensure that relief set forth in the administrative award was
‘appropriate’”). 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. D.R. v.
District of Columbia, 637 F. Supp. 2d 11, 16 (D.D.C. 2009).
III. ANALYSIS
In support of her request for summary judgment, plaintiff
first argues that the hearing officer erred in determining that
K.T. was not denied a FAPE by DCPS’s failure to timely respond to
her request for an independent evaluation, explaining that “[t]he
8 failure to provide for an independent evaluation is a substantive
violation of the IDEA.” Pl.’s SJ Mot. at 9. In support of this
assertion, plaintiff relies on Harris v. District of Columbia,
561 F. Supp. 2d 63 (D.D.C. 2008). In Harris, the court found
that DCPS’s “failure to act on a request for an independent
evaluation” for a child who had “languished for over two years
with an [individualized education program] that may not [have
been] sufficiently tailored to her special needs” was more than
“a mere procedural inadequacy.” Id. at 69; see also id.
(discussing “[t]he intransigence of DCPS as exhibited in its
failure to respond quickly to plaintiff’s simple request [for an
independent evaluation]”). Based solely on this statement in
Harris, plaintiff asks the Court to hold that DCPS’s failure to
timely respond to a request for an independent evaluation “is a
per se denial of FAPE, [where] the question of actual harm need
never be asked.” Pl.’s Combined Opp’n & Reply at 3. This Court
must decline plaintiff’s request.
“A failure to timely reevaluate is at base a procedural
violation of IDEA.” Smith v. District of Columbia, No. 08-2216,
2010 U.S. Dist. LEXIS 125754, at *9 (D.D.C. Nov. 30, 2010)
(citing cases). Procedural violations of the IDEA do not
“‘inexorably lead a court to find a child was denied FAPE.’” Id.
(quoting Schoenbach v. District of Columbia, 309 F. Supp. 2d 71,
78 (D.D.C. 2004)). Instead, as plaintiff’s counsel is well
9 aware, “an IDEA claim is viable only if [DCPS’s] procedural
violations affected the student’s substantive rights.” Lesesne
v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006)
(citing cases).5 The Court, therefore, finds that the hearing
officer properly determined that plaintiff was required to
demonstrate that K.T. suffered an “educational harm” in order to
establish that he was denied a FAPE by DCPS’s procedural
violation. See AR 116; see also Lesesne, 447 F.3d at 834
(rejecting petitioner’s argument that her child was “‘per se
harmed’ by DCPS’s alleged failure to meet some of IDEA’s
procedural deadlines”).
Plaintiff more persuasively argues, however, that the
October 2008 HOD should be reversed because K.T.’s substantive
rights under the IDEA were, in fact, violated by DCPS’s failure
to timely respond to plaintiff’s request for an independent
evaluation. In support of this argument, plaintiff asks the
Court to consider several pieces of new evidence. Specifically,
5 Plaintiff’s counsel in this action was counsel of record in the Lesesne action. 6 Indeed, the hearing officer correctly recognized that “‘in matters alleging a procedural violation, a hearing officer may find that a child did not receive a [FAPE] only if the procedural inadequacies — i. impeded the child’s right to a [FAPE]; ii. significantly impeded the parent’s opportunity to participate in the decision making process regarding the provisions of a FAPE to the parent’s child; or iii. caused a deprivation of educational benefits.’” AR 10-11 (quoting 34 C.F.R. § 300.513(a)).
10 plaintiff asks the Court to consider that on December 3, 2008 –
more than two months after the hearing officer issued her
determination – an independent psychological evaluation of K.T.
was produced, which recommended qualification of K.T. as a child
with an emotional disturbance and attention deficit hyperactivity
disorder (“ADHD”). See Pl.’s Ex. 2 at 14 (diagnosing K.T. with
ADHD, intermittent explosive behavior, and conduct disorder -
childhood onset). Plaintiff also asks the Court to consider that
during an MDT-eligibility meeting held on December 12, 2008, the
MDT “agreed” with plaintiff’s independent psychological
evaluation and found that K.T. (i) was “eligible for special
education services as a student with emotional disturbance/other
health impairment,” and (ii) was in need of a “full-time
therapeutic setting.” Pl.’s Ex. 3 at 4, 6; Pl.’s SMF ¶ 23.
Plaintiff argues that this evidence establishes that DCPS’s
delay in failing to timely authorize a reevaluation of K.T.
“caused a deprivation of educational benefits.” Pl.’s SJ Mot. at
11. Plaintiff asserts that: “Had DCPS provided its authorization
letter in June, when it was requested, instead of waiting four
months until October, . . . K.T. would have been evaluated four
months earlier, would have been found eligible four months
earlier, and would have received his [individualized education
program] four months earlier.” Pl.’s SJ Mot. at 12.
11 Defendant, in turn, contends that the Court should not
consider this new evidence. Defendant argues that “it would be
fundamentally unfair for this Court to overturn the [October 2008
HOD] based on Plaintiff’s after-acquired evidence that she never
presented to the hearing officer.” See Def.’s Reply at 3; see
also Def.’s SJ Mot. at 12-13 (arguing that “plaintiff is
attempting to circumvent established law” by “describ[ing] events
that occurred after the issuance of the October 31, 2008 HOD” in
support of her position that the hearing officer erred in
determining that there was no FAPE violation). Instead,
defendant urges the Court to affirm the October 2008 HOD based
solely upon the evidence presented by plaintiff at the
administrative hearing. See Def.’s SJ Mot. at 12-13 (arguing
that the hearing officer correctly found that the evidence
presented during the administrative hearing did not prove a
deprivation of educational benefits).
After careful consideration of the parties’ arguments, the
Court concludes that it is most appropriate to remand this case
to the hearing officer for consideration of plaintiff’s new
evidence. As a threshold matter, the Court finds defendant’s
argument that “plaintiff should be foreclosed from presenting
evidence and arguments that she did not raise before the hearing
12 officer” unavailing7 in light of 20 U.S.C. § 1415(i)(2)(C)(ii).8
Def.’s Reply at 1. Nevertheless, given the facts of this case,
and, in particular, the significant events that occurred after
the hearing officer issued her decision, the Court is persuaded
that it would be unfair to overturn the hearing officer’s
determination on grounds that she had no opportunity to consider
or evaluate. The Court therefore concludes that the hearing
officer should be permitted, in the first instance, to conduct
the “fact-specific exercise of discretion” anticipated by the
7 The Court is also unpersuaded by defendant’s argument that plaintiff was required to file a separate motion in order for the Court to consider plaintiff’s new evidence. See Def.’s SJ Mot. at 13; Def.’s Reply at 1-2. Defendant has not directed the Court to any statute, regulation, or case law requiring that a separate motion be filed with the Court, nor is the Court aware of any such authority. The Court, therefore, is unwilling to impose this additional procedural requirement on plaintiff, and will consider the new evidence that plaintiff has proffered. 8 20 U.S.C. § 1415(i)(2)(C)(ii) provides that in a civil action appealing the decision of a hearing officer, the court “shall hear additional evidence at the request of a party.” While there is a conflict among the Courts of Appeals regarding the precise meaning of § 1415(i)(2)(C)(ii)’s requirement that district courts hear additional evidence, appellate courts have generally construed the statute to provide district courts with the discretion to determine whether or not to hear such evidence. See, e.g., Konkel v. Elmbrook Sch. Dist., 348 F. Supp. 2d 1018, 1020-22 (E.D. Wis. 2004) (discussing the differing standards applied by various courts in determining whether to receive additional evidence in an IDEA action). In addition, although the D.C. Circuit has not expressly addressed the issue, it has generally recognized a district court’s discretion to decide whether to hear additional evidence or remand an action to a hearing officer for additional proceedings. See, e.g., Kingsmore v. District of Columbia, 466 F.3d 118, 120 (D.C. Cir. 2006); Branham v. District of Columbia, 427 F.3d 7, 13 (D.C. Cir. 2005).
13 IDEA. Reid, 401 F.3d at 536; see also Henry v. District of
Columbia, No. 09-1626, 2010 U.S. Dist. LEXIS 120336, at *11
(D.D.C. Nov. 10, 2010) (“While the Court has the authority to
undertake its own review of the record . . . and issue judgment
in the case, the district court may determine that the
‘appropriate’ relief is a remand to the hearing officer for
further proceedings[.]” (internal quotation marks omitted)).
Accordingly, this action is hereby REMANDED to the hearing
officer for consideration of plaintiff’s newly-proffered
evidence, and for further findings of fact and conclusions of law
regarding whether K.T. was denied a FAPE as a result of DCPS’s
procedural violation and, if so, the amount of compensatory
education to which K.T. is entitled.9
9 Plaintiff also argues that the October 2008 HOD should be reversed because “Ms. Taylor’s ability to participate in the decision-making process” was impeded by the District’s failure to timely authorize an independent evaluation. See Pl.’s SJ Mot. at 10-11 (citing 20 U.S.C. § 1415(f)(3)(E)(ii)(II) for the proposition that a procedural violation constitutes a denial of FAPE when it “significantly impede[s] the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE”). The Court finds that the hearing officer did not err in reaching a contrary determination based on the record that was before her. See AR 7, ¶ 8 (“Numerous attempts were made to include the Parent in an eligibility meeting; six dates were offered. However, parent’s counsel and/or advocate were not available.”); see also Def.’s SMF ¶¶ 8-14. Instead, to the extent that this argument has any possible merit it is dependent upon the consideration of plaintiff’s newly proffered evidence. See Pl.’s Combined Opp’n & Reply at 4-5 (“[An] [MDT] meeting would have done the Plaintiff little good in the absence of an adequate expert evaluation. The existing evaluation had specifically found K.T. ineligible [for special education services]. Only after the final evaluation was done did DCPS
14 IV. CONCLUSION
For the reasons set forth above, the Court REMANDS this
action to the hearing officer for additional fact-finding and
further consideration on the merits. The parties’ motions for
summary judgment are therefore DENIED without prejudice. A
separate Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan United States District Court Judge March 16, 2011
develop an [individualized education program] for K.T. and finally begin to address his needs.” (internal citations omitted)). Because the Court concludes that remand for consideration of plaintiff’s newly proffered evidence is appropriate, the Court need not further discuss the merits of plaintiff’s argument on this issue.