UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CASSANDRA WHEATEN, parent and ) next friend ofD.W., a minor, ) ) Plaintiff, ) ) Civil Case No. 09-986 (RJL) v. ) ) DISTRICT OF COLUMBIA et al., ) ) Defendants. ¢ , _. . MEMORANDUM OPINION (July 1:t:a, 2010) [#10, #11]
Plaintiff, Cassandra Wheaten ("Wheaten"), filed this lawsuit on behalf of her
child, D.W., seeking an award of compensatory education on the theory that the District
of Columbia and Michelle Rhee, Chancellor of the District of Columbia Public School
System ("DCPS"), (together, the "defendants") denied D.W. a free appropriate public
education ("F APE") in violation of the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. §§ 1400 et seq. Before the Court are the parties' cross-motions for
summary judgment. Upon consideration of the parties' pleadings, relevant law, and the
entire record herein, the defendants' motion is GRANTED.
BACKGROUND
D.W. is a learning disabled child who has been receiving special education
services since 1999. AR 156. He attended Dunbar Senior High School ("Dunbar") from
2005 until November 2007. AR 6. At Dunbar, D.W. received mostly Ds and Fs on his report card. AR 75. On February 26,2007, a multidisciplinary team ("MDT") met to
review D.W.'s Individualized Educational Plan ("IEP"). The MDT recommended
transferring D.W. from Dunbar to an institution outside of general education. AR 153.
On April 23, 2007, D.W. received a neuropsychological evaluation to assist in
developing an appropriate educational placement for him. D.W. was diagnosed with,
inter alia, a learning disorder, specifically visual-spatial learning; a history of perinatal
cerebral anoxia; and a history of difficulty meeting academic and behavioral expectations.
AR 169. The examiner determined that D.W. would benefit from placement in an
educational program with individualized instruction to address his academic and
behavioral difficulties, as well as vocational training and basic life skills training. Id. On
September 12,2007, an MDT met to review and revise D.W.'s IEP. His new IEP
required 27.5 hours of special education for D.W. and included goals for math, reading,
written expression, and vocational skills. AR 46-52. The MDT agreed that D.W. should
be placed in an "out of general education classroom" and that Dunbar was not an
appropriate placement for D.W. Id.
On November 16,2007, the parties negotiated a settlement agreement whereby
defendant would place and fund D.W.'s enrollment at Accotink Academy ("Accotink") in
Springfield, Virginia. AR 2. D.W. began attending Accotink on November 22,2007.
AR 5. There he participated in a "highly structured and supervised classroom, with a low
student-to-staffratio and access to frequent reinforcement." AR 144. A psychological
2 evaluation dated January 13,2008, recommended that D.W. receive individual therapy
services to address his anxiety, coping skills, and self-esteem and interpersonal issues.
AR 145. During his first two semesters at Accotink, D.W. received mostly Cs, one B,
and one D. AR 220. Teacher assessments noted that his grades were not indicative of his
ability but instead reflected mandatory letter grade drops due tofrequent absences! Id.
On February 14,2008, an MDT met to review and revise D.W.'s IEP. D.W. was
classified as learning disabled and was to remain in a full-time special education setting.
AR 138. In addition to 28 hours of special education instruction, the IEP was modified to
include one hour of individual psychosocial therapy and one hour of individual speech
therapy per week. AR 36. At the MDT meeting, D.W.'s educational advocate stated that
D.W. was owed 220 hours of compensatory education, an assertion that the DCPS
representative disputed. AR 142-43. On February 20, 2008, D.W.'s educational advocate
sent the DCPS representative a letter slightly revising his request, stating that D. W. was
owed 190 hours of specialized instruction and 22 hours of speech language services as
compensatory education for inappropriate placement at Dunbar for several months during
the 2006-2007 school year and the beginning of the 2007-2008 school year, until his
placement at Accotink in November 2007. AR 148.
On April 21, 2008, plaintiff filed a due process complaint alleging that DCPS had
denied D.W. a FAPE for those same time periods. AR 25. After a hearing on June 6,
2008, a Hearing Officer Determination issued on June 17,2008 (the "HOD"), concluded
3 that the DCPS had denied D.W. a FAPE when he was enrolled at Dunbar but that DCPS
had remedied the FAPE denial by placing and funding D.W. at Accotink. AR 5, 14. The
HOD also denied Wheaten's request for compensatory education, finding that she had not
satisfied the criteria established in Reid v. District of Columbia, 401 F .3d 516 (D.C. Cir.
2005). AR 12, 14. On May 27,2009, plaintiff brought the instant action to reverse the
June 10, 2008 HOD. The parties then filed cross-motions for summary judgment.
ANALYSIS
Summary judgment is appropriate when the pleadings and the record demonstrate
that "there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56( c). The party seeking summary
judgment may support its motion by "identifying those portions of 'the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the absence of a genuine issue of
material fact." See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R.
Civ. P. 56(c)). In opposing summary judgment, the "nonmoving party [must] go beyond
the pleadings and by [its] own affidavits, or by the 'depositions, answers to
interrogatories, and admissions on file,' designate' specific facts showing that there is a
genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(c), (e)). In determining
whether a genuine issue of material fact is in dispute, "[t]he evidence of the non-movant
is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
4 The IDEA guarantees children with disabilities the availability of a FAPE. 20
U.S.C. § 1400(d)(1)(A). In designing an appropriate education for students with
disabilities, the child's parents, teachers, school officials, and other professionals
collaborate to develop an IEP to meet the child's unique needs. 20 U.S.C.
§ 1414( d)( 1)(B). If the parent objects "to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public education to such
child," he may seek an impartial due process hearing. 20 U.S.C. §§ 1415(b)(6),
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CASSANDRA WHEATEN, parent and ) next friend ofD.W., a minor, ) ) Plaintiff, ) ) Civil Case No. 09-986 (RJL) v. ) ) DISTRICT OF COLUMBIA et al., ) ) Defendants. ¢ , _. . MEMORANDUM OPINION (July 1:t:a, 2010) [#10, #11]
Plaintiff, Cassandra Wheaten ("Wheaten"), filed this lawsuit on behalf of her
child, D.W., seeking an award of compensatory education on the theory that the District
of Columbia and Michelle Rhee, Chancellor of the District of Columbia Public School
System ("DCPS"), (together, the "defendants") denied D.W. a free appropriate public
education ("F APE") in violation of the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. §§ 1400 et seq. Before the Court are the parties' cross-motions for
summary judgment. Upon consideration of the parties' pleadings, relevant law, and the
entire record herein, the defendants' motion is GRANTED.
BACKGROUND
D.W. is a learning disabled child who has been receiving special education
services since 1999. AR 156. He attended Dunbar Senior High School ("Dunbar") from
2005 until November 2007. AR 6. At Dunbar, D.W. received mostly Ds and Fs on his report card. AR 75. On February 26,2007, a multidisciplinary team ("MDT") met to
review D.W.'s Individualized Educational Plan ("IEP"). The MDT recommended
transferring D.W. from Dunbar to an institution outside of general education. AR 153.
On April 23, 2007, D.W. received a neuropsychological evaluation to assist in
developing an appropriate educational placement for him. D.W. was diagnosed with,
inter alia, a learning disorder, specifically visual-spatial learning; a history of perinatal
cerebral anoxia; and a history of difficulty meeting academic and behavioral expectations.
AR 169. The examiner determined that D.W. would benefit from placement in an
educational program with individualized instruction to address his academic and
behavioral difficulties, as well as vocational training and basic life skills training. Id. On
September 12,2007, an MDT met to review and revise D.W.'s IEP. His new IEP
required 27.5 hours of special education for D.W. and included goals for math, reading,
written expression, and vocational skills. AR 46-52. The MDT agreed that D.W. should
be placed in an "out of general education classroom" and that Dunbar was not an
appropriate placement for D.W. Id.
On November 16,2007, the parties negotiated a settlement agreement whereby
defendant would place and fund D.W.'s enrollment at Accotink Academy ("Accotink") in
Springfield, Virginia. AR 2. D.W. began attending Accotink on November 22,2007.
AR 5. There he participated in a "highly structured and supervised classroom, with a low
student-to-staffratio and access to frequent reinforcement." AR 144. A psychological
2 evaluation dated January 13,2008, recommended that D.W. receive individual therapy
services to address his anxiety, coping skills, and self-esteem and interpersonal issues.
AR 145. During his first two semesters at Accotink, D.W. received mostly Cs, one B,
and one D. AR 220. Teacher assessments noted that his grades were not indicative of his
ability but instead reflected mandatory letter grade drops due tofrequent absences! Id.
On February 14,2008, an MDT met to review and revise D.W.'s IEP. D.W. was
classified as learning disabled and was to remain in a full-time special education setting.
AR 138. In addition to 28 hours of special education instruction, the IEP was modified to
include one hour of individual psychosocial therapy and one hour of individual speech
therapy per week. AR 36. At the MDT meeting, D.W.'s educational advocate stated that
D.W. was owed 220 hours of compensatory education, an assertion that the DCPS
representative disputed. AR 142-43. On February 20, 2008, D.W.'s educational advocate
sent the DCPS representative a letter slightly revising his request, stating that D. W. was
owed 190 hours of specialized instruction and 22 hours of speech language services as
compensatory education for inappropriate placement at Dunbar for several months during
the 2006-2007 school year and the beginning of the 2007-2008 school year, until his
placement at Accotink in November 2007. AR 148.
On April 21, 2008, plaintiff filed a due process complaint alleging that DCPS had
denied D.W. a FAPE for those same time periods. AR 25. After a hearing on June 6,
2008, a Hearing Officer Determination issued on June 17,2008 (the "HOD"), concluded
3 that the DCPS had denied D.W. a FAPE when he was enrolled at Dunbar but that DCPS
had remedied the FAPE denial by placing and funding D.W. at Accotink. AR 5, 14. The
HOD also denied Wheaten's request for compensatory education, finding that she had not
satisfied the criteria established in Reid v. District of Columbia, 401 F .3d 516 (D.C. Cir.
2005). AR 12, 14. On May 27,2009, plaintiff brought the instant action to reverse the
June 10, 2008 HOD. The parties then filed cross-motions for summary judgment.
ANALYSIS
Summary judgment is appropriate when the pleadings and the record demonstrate
that "there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56( c). The party seeking summary
judgment may support its motion by "identifying those portions of 'the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the absence of a genuine issue of
material fact." See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R.
Civ. P. 56(c)). In opposing summary judgment, the "nonmoving party [must] go beyond
the pleadings and by [its] own affidavits, or by the 'depositions, answers to
interrogatories, and admissions on file,' designate' specific facts showing that there is a
genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(c), (e)). In determining
whether a genuine issue of material fact is in dispute, "[t]he evidence of the non-movant
is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
4 The IDEA guarantees children with disabilities the availability of a FAPE. 20
U.S.C. § 1400(d)(1)(A). In designing an appropriate education for students with
disabilities, the child's parents, teachers, school officials, and other professionals
collaborate to develop an IEP to meet the child's unique needs. 20 U.S.C.
§ 1414( d)( 1)(B). If the parent objects "to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public education to such
child," he may seek an impartial due process hearing. 20 U.S.C. §§ 1415(b)(6),
1415(1)(1). If the parent is dissatisfied with the outcome of that hearing, he may appeal
the decision to a state court of competent jurisdiction or a federal district court. 20 U.S.C.
§ 1415(i)(2)(A).
In conducting its review, this Court must grant relief as appropriate, based on a
preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)(iii). The Supreme Court,
however, has interpreted the "preponderance standard of review not to be an allowance of
unfettered de novo review." Reid, 401 F.3d at 521 (quoting Bd. o/Educ. o/Hendrick
Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)). Thus while this Court
makes an independent determination, it "must also give 'due weight' to the administrative
proceeding and afford some deference to the expertise of the hearing officer and school
officials responsible for the child's education." Simmons v. Dist. o/Columbia, 355 F.
Supp. 2d 12, 16 (D.D.C. 2004) (quoting Lyons v. Smith, 829 F. Supp. 414, 418 (D.D.C.
1993)). The burden of proof, not surprisingly, rests with the party challenging the
administrative determination, who must "at least take on the burden of persuading the
5 court that the hearing officer was wrong." Reid, 401 F.3d at 521 (quoting Kerkam v.
McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). For the following reasons, the plaintiff
has not met her burden here.
Plaintiff alleges that because the defendants denied D.W. a FAPE while he
attended Dunbar, he is entitled to receive compensatory education. Principally citing Reid
for support, Wheaten argues that compensatory education is intended to remedy past
FAPE denials and thus D.W.'s subsequent placement in private schooling at Accotink
was insufficient to erase D.W.'s entitlement to a compensatory education award. I
disagree. While the plaintiff is correct that a court may order compensatory education
when a disabled child has been deprived of a FAPE and that such "compensatory awards
should aim to place disabled children in the same position they would have occupied but
for the school district's violations of IDEA," id. at 518, the plaintiff fails to acknowledge
that the hearing officer specifically determined that D.W.'s placement at Accotink
remedied the prior FAPE denial, thereby rendering an award of compensatory education
unnecessary .
In determining an equitable compensatory education award, a hearing officer must
engage in a fact-intensive analysis that is qualitative rather than quantitative. Id. at 524.
Our Circuit has specifically rejected "cookie-cutter" or mechanical remedies, such as
awarding one hour of compensatory instruction for each hour that the student was denied
a FAPE, and stressed that a hearing officer must take into account individual assessments
of the student and focus on the student's individual needs. Id. at 523-24. In D.W.'s case,
6 the hearing officer conducted just such a fact-intensive analysis and detennined that the
FAPE violation had already been remedied by D.W.'s placement at Accotink. Indeed, the
HOD specifically states that "the hearing officer did not assume that the Accotink
Academy placement, alone, provided compensation." AR 13. Instead, the hearing officer
assessed the evidence submitted by the parties and detennined that Wheaten "did not
offer proof that the placement [at Accotink] did not compensate for the prior FAPE
denial." Id. In fact, the hearing officer concluded that "[t]he overwhelming evidence is
that the student is making progress at Accotink." Id.
In making his determination, the hearing officer pointed to D.W.'s grades at
Accotink, which showed marked improvement from Dunbar, and the psychosocial
therapy services that D.W. was receiving in accordance with the February 14,2008 IEP.
Id. The hearing officer also noted that Wheaten "testified that her son is doing much
better at Accotink-his grades are better; his behavior improved; he wants to go to
school; his attitude and self-confidence improved; and she is happy with Accotink." Id.
In light of all the evidence, the hearing officer concluded that D.W. did not require
"additional services beyond his Accotink IEP to undo damage caused by prior violations."
Id. In other words, the hearing officer denied Wheaten's request for compensatory
education not because of Accotink's private school status but because D.W. showed a
clear improvement in his attitude and grades-all of which occurred before plaintiff filed
her complaint-indicating that his FAPE denial had been fully remedied.
7 Based on a thorough review of the record, I find no reason to reverse the hearing
officer's decision, and the plaintiff has not provided one. Given the strides that D.W.
made following his placement at Accotink, both academically and behaviorally, and the
continuing services provided to him under the most recent IEP, the Court agrees with the
HOD that no award of compensatory education is warranted. See Thomas v. Dist. of
Columbia, 407 F. Supp. 2d 102, 115 (D.D.C. 2005) (acknowledging that "[i]t may be
conceivable that no compensatory education is required for the denial of FAPE" because
a student has "flourished in his current placement"). Finding no basis to overturn the
hearing officer's determination that D.W. was not owed compensatory education,
plaintiff s claim for 212 hours of compensatory education must fail.
CONCLUSION
For all of the foregoing reasons, the Court DENIES the plaintiffs Motion for
Summary Judgment and GRANTS the defendants' Cross-Motion for Summary Judgment.
An Order consistent with the Court's ruling accompanies this Memorandum Opinion. ~