W.S. v. District of Columbia

Opinions

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

W.S., et al., )

)

Plaintiffs, )

)

v. ) No. 19-cv-1390 (KBJ)

)

DISTRICT OF COLUMBIA, )

)

Defendant. )

)

MEMORANDUM OPINION

W.S. is an elementary school student who is eligible for special education services under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. (See Redacted Compl. (“Compl.”), ECF No. 17, ¶¶ 6, 11, 35.) 1 On May 14, 2019, W.S. and his parents, W.S. and E.S. (collectively, “Plaintiffs”), filed the instant action against the District of Columbia, challenging the decision of a Hearing Officer at the Office of the State Superintendent of Education (“OSSE”), who denied Plaintiffs’ request for funding and placement at a specific private school on the ground that the District of Columbia Public Schools system (“DCPS”) and OSSE had provided W.S. an appropriate educational placement under the IDEA. (See id. ¶¶ 52, 82–110; see also Sealed Compl., ECF No. 1.) In their three-count complaint, which seeks tuition reimbursement for the year W.S. attended Plaintiffs’ preferred school, Plaintiffs allege that (1) DCPS and OSSE denied W.S. a “free appropriate public education” for the school year at issue, in violation of the IDEA (see Compl. ¶ 113), (2) the Hearing

1 Page number citations refer to the numbers automatically assigned by the Court’s electronic case filing system.

Opinion

Officer failed to “order [DCPS and OSSE] to place and fund W.S. in an appropriate program and placement” (see id. ¶ 115), and (3) the Hearing Officer “violated [P]laintiffs’ due process rights . . . by failing to render a proper decision based on an accurate and impartial understanding of the facts” (see id. ¶ 117), and “by failing to apply correct legal standards” (id. ¶ 118).

On May 16, 2019, this Court referred this matter for random assignment to a Magistrate Judge for full case management. (See Min. Order of May 16, 2019.) The case was assigned to Magistrate Judge Deborah Robinson, and the parties subsequently filed cross-motions for summary judgment. (See Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. 10; Def.’s Cross-Mot. for Summ. J. (“Def.’s Cross-Mot.”), ECF No. 11.)

Before this Court at present is Magistrate Judge Robinson’s Report and Recommendation regarding the parties’ cross-motions for summary judgment, as well as the District of Columbia’s objections thereto. (See R. & R., ECF No. 20; Def.’s Objs. to R. & R. (“Def.’s Objs.”), ECF No. 21; see also Pls.’ Reply to Def.’s Objs., ECF No. 23.) 2 The Court has carefully reviewed the Report and Recommendation, the parties’ submissions, and the record evidence, and for the reasons discussed below, the Court will ADOPT Magistrate Judge Robinson’s Report and Recommendation in full. Accordingly, Plaintiffs’ motion for summary judgment will be GRANTED IN PART, and only insofar as Plaintiffs request further administrative proceedings to determine whether the school at which DCPS and OSSE placed W.S. could manage students with aggressive behaviors. Defendant’s cross-motion for summary judgment will be

2 The Report and Recommendation, which is 27 pages long, is attached hereto as Appendix A.

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Opinion

DENIED WITHOUT PREJUDICE, and with the understanding that Defendant may file a renewed summary judgment motion after the Hearing Officer has determined (1) whether W.S.’s aggressive behaviors could have been accommodated in the educational setting that DCPS and OSSE assigned, and if not, (2) whether Plaintiffs are entitled to tuition reimbursement for the year W.S. attended Plaintiffs’ preferred school. A separate Order consistent with this Memorandum Opinion will follow. I. BACKGROUND W.S. began receiving special education services in pre-kindergarten, after exhibiting behavioral issues and developmental delays. (See Def.’s Resp. to Pls.’ Statement of Undisputed Material Facts, ECF No. 11-1, ¶¶ 3–5.) Although W.S. made substantial progress during the beginning of the following school year, he started to express himself in increasingly violent and aggressive ways, and his academic performance soon took a turn for the worse. (See id. ¶¶ 7–13.) In response, W.S.’s parents retained a pediatric specialist to evaluate W.S. and to help craft a new Individualized Education Plan (“IEP”) for him. (See id. ¶¶ 14–15, 17.) After conducting a neurodevelopmental exam, the specialist diagnosed W.S. with Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, and an anxiety disorder, and recommended that he be placed in a “highly structured” program that uses “evidence-based, specialized teaching and behavioral strategies to support his social, emotional-behavioral, and learning needs.” (Id. ¶ 17.) Building on the specialist’s evaluation and report, W.S.’s parents worked with an educational consultant and DCPS to develop a new IEP, which called for a “full-time special education placement[.]” (See id. ¶¶ 18–19.) W.S.’s parents asked that W.S. be placed at The Auburn School, but

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OSSE rejected their request, because The Auburn School lacked a certificate of approval. (See id. ¶ 22.) OSSE instead placed W.S. at The Children’s Guild (see id. ¶ 32), a school that W.S.’s parents and their educational consultant deemed inadequate (see id. ¶¶ 24–26). W.S.’s parents subsequently enrolled W.S. in The Auburn School, notwithstanding OSSE’s decision, and filed an administrative complaint seeking to compel “OSSE and/or DCPS [to] fund [W.S.’s] placement there.” (See id. ¶¶ 33, 35.)

The parties then presented arguments and witnesses to a Hearing Officer at OSSE, who ultimately dismissed Plaintiffs’ complaint with prejudice. (See Hearing Officer Determination, Administrative R., ECF No. 7-1, at 21.) The Hearing Officer concluded that Plaintiffs had not established a prima facie case that W.S. had been denied a free appropriate public education, and that, in any event, DCPS and OSSE had demonstrated that The Children’s Guild was an appropriate placement for W.S. (See id. at 19–20.) Given those determinations, the Hearing Officer did not address whether The Auburn School was a proper placement, or whether the equities favored reimbursing Plaintiffs for W.S.’s enrollment there.

Following the Hearing Officer’s decision, Plaintiffs initiated the instant action against the District of Columbia, and the parties then filed cross-motions for summary judgment. Plaintiffs argue in their motion that the Hearing Officer incorrectly determined that they did not establish a prima facie case and erroneously found that DCPS and OSSE had offered W.S. an appropriate placement. (See Pls.’ Mot. at 13–21.) Plaintiffs also contend that the Hearing Officer failed to consider W.S.’s unique needs as a twice-exceptional student, improperly weighed the testimony of the parties’ witnesses, and inappropriately concluded that W.S.’s parents had acted in bad faith.

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(See id. at 21–34.) In addition, Plaintiffs assert that The Auburn School is a proper placement for W.S., and that he “should be placed and funded there” as a result. (See id. at 34–37.) For its part, the District of Columbia maintains that the Hearing Officer’s determination was correct, and that DCPS and OSSE provided W.S. a free appropriate public education in compliance with the IDEA. (See Def.’s Cross-Mot. at 16–37.)

After the parties finished briefing their cross-motions for summary judgment, Plaintiffs informed the Court that the District of Columbia had assigned W.S. a different placement for the following school year, and that they were no longer seeking to compel DCPS and OSSE to place W.S. at The Auburn School. (See Pls.’ Notice Regarding Relief Sought, ECF No. 16.) Plaintiffs clarified, however, that they “continue to seek full reimbursement” for the year that W.S. attended school there. (See id.)

On August 17, 2020, Magistrate Judge Robinson issued a Report and Recommendation on the parties’ cross-motions for summary judgment, addressing only whether the Hearing Officer properly determined that The Children’s Guild was an appropriate placement under the IDEA. (See R. & R. at 27; see also id. at 8 n.2 (explaining that the Report and Recommendation would not discuss whether The Auburn School was a proper placement given Plaintiffs’ representation that they no longer sought placement there).) After reviewing the parties’ arguments on that issue and examining the administrative record, Magistrate Judge Robinson recommends that Plaintiffs’ motion be granted, and that Defendant’s cross-motion be denied. (See id. at 27.) Specifically, Magistrate Judge Robinson finds that the Hearing Officer “applied a more stringent standard” than appropriate when evaluating whether Plaintiffs had

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Opinion

established a prima facie case that W.S. had been denied a free appropriate public education. (See id. at 15–17.) Magistrate Robinson also finds that the Hearing Officer did not “adequately address” whether The Children’s Guild could properly manage W.S.’s aggressive behaviors. (See id. at 25–27.) According to Magistrate Judge Robinson, the Hearing Officer failed to make any findings or conclusions about this issue, despite the fact that W.S.’s aggressive behaviors “were a central part” of his IEP (see id. at 25), and The Children’s Guild could qualify as an appropriate placement under the IDEA only if it was able to “substantially implement[]” the part of W.S.’s IEP that required management of such behaviors (see id. at 15 (internal quotation marks and citation omitted)). Magistrate Judge Robinson further concludes that, even though various pieces of evidence in the record could theoretically support a finding that The Children’s Guild was capable of managing W.S.’s aggression, such evidence is “contradictory and unreliable” at best. (See id. at 25–27.)

With respect to Plaintiffs’ remaining challenges to W.S.’s placement at The Children’s Guild, Magistrate Judge Robinson’s Report and Recommendation concludes that the Hearing Officer properly resolved the dispute in the District of Columbia’s favor, because, apart from the issue of W.S.’s aggressive behaviors, “Plaintiffs’ purported requirements” for an appropriate educational placement “were not contained within W.S.’s IEP” (see id. at 18), and thus “cannot form the basis of an educational placement challenge” under the IDEA (see id. at 19). Magistrate Judge Robinson additionally finds that the Hearing Officer’s credibility determinations were reasonable (see id. at 21); that the record supports the Hearing Officer’s conclusions, except with respect to The Children’s Guild’s ability to manage W.S.’s aggressive behaviors (see id.

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Opinion

at 23); and that, contrary to Plaintiffs’ assertions otherwise, the Hearing Officer did not find that W.S.’s parents had acted in bad faith (see id. at 22 n.6). Based on these findings and conclusions, Magistrate Judge Robinson recommends that the case be remanded to OSSE for further proceedings to determine whether The Children’s Guild could have accommodated W.S.’s aggressive conduct. (See id. at 27.)

In addition to articulating these findings and conclusions, Magistrate Judge Robinson’s Report and Recommendation advises the parties that they may file written objections to the Report and Recommendation, which must include “the portions of the findings and recommendations to which objection is made and the basis of each such objection.” (See id.) The Report and Recommendation also advises the parties that “[i]n the absence of timely objections, further review of issues addressed [in the Report and Recommendation] may be deemed waived.” (Id.)

The District of Columbia timely filed its objections to the Report and Recommendation on August 31, 2020, challenging only Magistrate Judge Robinson’s conclusion that the Hearing Officer failed to address adequately The Children’s Guild’s ability to accommodate W.S.’s aggressive behaviors. (See Def.’s Objs. at 1.) According to the District of Columbia, the Hearing Officer did make findings on this issue: in its decision, the Hearing Officer expressly noted that The Children’s Guild offers “formalized plans to improve behaviors” and “provides a culture that reinforces positive behavior and downplays negative [conduct.]” (Id. at 2 (internal quotation marks and citation omitted).) The District of Columbia also maintains that the record fully supports its cross-motion for summary judgment, as the evidence demonstrates that The Children’s Guild could have managed W.S.’s aggressive behaviors through

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Opinion

“‘individually targeted’” behavior plans. (See id. at 3–5 (quoting R. & R. at 24–25).) As a result, the District of Columbia asks this Court to reject the portion of the Report and Recommendation concerning The Children’s Guild’s capacity to handle W.S.’s aggression, and to grant summary judgment in the District’s favor. (See id. at 6.) II. DISCUSSION This Court concludes that this matter must be remanded to OSSE for further administrative proceedings, because the Hearing Officer did not sufficiently address whether The Children’s Guild could manage W.S.’s aggressive behaviors. Moreover, as such, the Hearing Officer had no occasion to determine whether Plaintiffs were entitled to tuition reimbursement for the year W.S. attended The Auburn School.

To qualify for tuition reimbursement under the IDEA, a plaintiff must demonstrate that (1) the “school district failed to provide a [free appropriate public education,]” (2) the plaintiff’s “private placement was suitable,” and (3) the equities warrant “reimbursement for some or all of the cost of the child’s private education[.]” See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009). The first prong of this test—which is the only prong that the Hearing Officer and Magistrate Judge Robinson addressed—focuses on whether the school district’s educational placement could have implemented “substantial or significant provisions” of the student’s IEP. See, e.g., Johnson v. District of Columbia, 962 F. Supp. 2d 263, 268 (D.D.C. 2013) (internal quotation marks and citation omitted). That question, in turn, depends on the goals or requirements that the student’s IEP sets forth, and the ability of the educational placement to fulfill such goals or requirements. See O.O. ex rel. Pabo v. District of Columbia, 573 F. Supp. 2d 41, 53 (D.D.C. 2008).

In the instant case, there is no question that W.S.’s aggressive behaviors were an

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Opinion

integral component of his IEP, as Magistrate Judge Robinson concluded; indeed, these behaviors were the driving force behind his change in schools, and W.S.’s IEP repeatedly referenced the need to address his violent and aggressive outbursts. (See, e.g., Administrative R., ECF No. 8-4, at 17, 23–29.) Notwithstanding this crucial feature of W.S.’s IEP, however, it appears that the Hearing Officer did not make any explicit findings as to whether The Children’s Guild could manage W.S.’s aggression. (See Hearing Officer Determination at 7–20.) Instead, the Hearing Officer focused on the school’s general ability to develop and implement individualized behavior programs (see id. at 12, 17–18), and highlighted statements in a brochure about The Children’s Guild’s outpatient clinic, which helps “children and their families” with “anger, aggressiveness and other behavioral problems” (see Hearing Officer Determination at 12 ¶ 11; Administrative R., ECF No. 7-6, at 42).

Because the outpatient clinic at The Children’s Guild is a separate program from the school (see Administrative R., ECF No. 7-6, at 42), and because the Hearing Officer’s findings say nothing about the school’s ability to accommodate the specific behavioral problems mentioned in W.S.’s IEP, the Court agrees with Magistrate Judge Robinson’s conclusion that the Hearing Officer did not make a determination that was sufficient to support a finding that The Children’s Guild was an appropriate placement for W.S. And this is so even though the record contains some evidence suggesting that The Children’s Guild might have been able to manage students with aggressive and violent behaviors, because there is other record evidence that cuts in the opposite direction. For example, one witness explained that The Children’s Guild has worked with students exhibiting aggressive behaviors in the past (see Administrative R., ECF No. 9-8, at 21), while other

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witnesses suggested that The Children’s Guild does not generally accept students with serious aggressive behaviors (see Administrative R., ECF No. 9-5, at 47; Administrative R., ECF No. 9-7, at 37). In the absence of any findings that resolve these discrepancies, the Hearing Officer could not adequately determine whether The Children’s Guild was an appropriate placement under the IDEA. Moreover, even if the Court were to assume for purposes of analysis that The Children’s Guild was not an appropriate placement for W.S., the record does not contain sufficient information to permit the Court to assess whether Plaintiffs are entitled to the tuition reimbursement that is the object of their complaint. The Hearing Officer did not discuss whether The Auburn School was a proper placement under the IDEA, and neither the Hearing Officer nor the parties have addressed whether the equities warrant tuition reimbursement. See Forest Grove Sch. Dist., 557 U.S. at 247.

Accordingly, the Court concludes that this matter should be remanded to OSSE, where the Hearing Officer can make the necessary findings in the first instance. See, e.g., M.O. v. District of Columbia, 20 F. Supp. 3d 31, 41 (D.D.C. 2013) (remanding an IDEA case to the hearing officer for further consideration of the evidence). In the meantime, the Court will adopt the unobjected to analysis and conclusions of the Report and Recommendation concerning Plaintiffs’ other challenges to the District of Columbia’s school placement decision—conclusions of the Magistrate Judge with which the Court fully agrees—and will grant in part Plaintiffs’ motion for summary judgment, to the extent that Plaintiffs have demonstrated that the Hearing Officer’s placement determination is not fully supported because it lacks an administrative finding concerning The Children’s Guild’s ability to manage W.S.’s aggressive behaviors.

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Opinion

III. CONCLUSION For the reasons discussed above, and as set forth in the separate Order that accompanies this Memorandum Opinion, the Court will ADOPT Magistrate Judge Robinson’s Report and Recommendation in its entirety. Accordingly, Plaintiffs’ Motion for Summary Judgment (ECF No. 10) will be GRANTED IN PART, and only insofar as it has demonstrated the need for further administrative proceedings regarding the ability of The Children’s Guild to manage W.S.’s aggressive behaviors. Defendant’s Cross-Motion for Summary Judgment (ECF No. 11) will be DENIED WITHOUT PREJUDICE, and with the understanding that Defendant may file a renewed summary judgment motion after the Hearing Officer has determined whether The Children’s Guild could have accommodated W.S.’s aggressive behaviors as his IEP required, and, if not, whether Plaintiffs are nonetheless entitled to tuition reimbursement. This matter will therefore be REMANDED to OSSE for further proceedings regarding whether The Children’s Guild could have managed W.S.’s aggressive conduct, and whether Plaintiffs must be reimbursed for the year W.S. attended The Auburn School. Should the Hearing Officer determine on remand that The Children’s Guild could have accommodated W.S.’s aggression, and thus that no alternative placement was warranted, the Court recommends that the Hearing Officer nevertheless make alternative findings about Plaintiffs’ entitlement to reimbursement, in order to facilitate an expedient resolution of the case in the event that the parties appeal the Hearing Officer’s decision.

DATE: November 12, 2020 Ketanji Brown Jackson KETANJI BROWN JACKSON

United States District Judge

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Appendix

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

W.S., et al., Plaintiffs,

v. Civil Action No. 19-1390 KBJ/DAR

DISTRICT OF COLUMBIA,

Defendant.

REPORT AND RECOMMENDATION W.S. and parents, W.S. and E.S., commenced this action for injunctive and

U.S.C. §§ 1400 et seq., seeking judicial review of a final decision of the District of Columbia Office of the State Superintendent of Education with respect to W.S., a student who is eligible for special education and related services. See Complaint for Declaratory Judgment & Injunctive 7) at 1. In their Complaint, Plaintiffs claim that the denying W.S. a free

by

placement for W.S. for the 2018-19 school ye Id.

Pending for consideration by the undersigned United States Magistrate Judge are the See

s Motion for

Summary Judgment and Opposition to Upon consideration of the motions, the memoranda in support thereof

and in opposition thereto, and the entire administrative record, the undersigned will recommend that Motion be granted, Motion be denied.

I. BACKGROUND A. Factual Background W.S., a student who resides in the District of Columbia, has been diagnosed with Autism - Combined Type

.1 See (ECF Nos. 7, 8, 9) at 345, 1154-57. W.S. is eligible for services under the IDEA as a student with Autism. Id. at 355, 1159.

W.S. attended pre-Kindergarten at Creative Minds International Public Charter School . Id. at 1152. Creative Minds helped to draft an IEP for W.S. which called for a dedicated Id. at 1260, 1263. In Dr. Laura

Solomon, an educational consultant, to reevaluate W.S. for special education services. Id. at 1152-53.

For the 2016-17 and 2017-18 school years, W.S. attended Janney Elementary School Id. at 1154-55. During the 2016-17 school year, W.S.

continued to have a dedicated aide and made progress according to several measures. Id. at 328, 439, 1155, 1261. Starting in the next school year, however, W.S. began to exhibit behavioral problems, which included throwing objects, spitting, name-calling, and pushing. Id. at 328, 697-

1 With the exception of the Administrative Record and any document without page numbering automatically he undersigned cites to the page numbers

ECF-generated page numbers, the undersigned uses the page numbering provided by the parties.

2

99, 1173. W.S. and attempting to poison others. Id. at 697. school year, W.S. still exhibited these behaviors. Id. at 713. suffered. Id. at 713, 735-40.

another educational consultant, Dr. Rosebeth Marcou, to evaluate W.S. Id. at 326-50. In a report dated June 1, 2018, Dr. Marcou diagnosed W.S. with ASD, ADHD, and an Anxiety Disorder after completing a document review, classroom observation, and testing of W.S. Id. Questionnaires from teachers revealed that W.S. was imaginative and curious, but that attention and behavioral issues interfered in the classroom. Id. at 331- could be impulsive and aggressive towards others. Id. at 335-40. On the KBIT-2 Kaufman Brief Intelligence Test, W.S. scored a 123 composite IQ score. Id. at 343. Dr. Marcou recommended that the IEP be adapted Id. at 346.

education program must include classmates with similar language and cognitive profiles (i.e.

Id.

On June 4, 2018, the IEP team reconvened to determine an IEP for the coming 2018-19 school year. Id. at 712. In reviewing the record, the IEP concluded that W.S. required a full- time special education placement. Id. at 729-31. The District of Columbia Office of the State subsequently convened ent on July 18, 2018. Id. at 1165-66, 1269. At the meeting, Dr. Solomon requested

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consideration of the Auburn School, but OSSE did not consider the Auburn School because it did not have a certificate of approval. Id. at 381, 393, 1271. On July 30, 2018, OSSE identified three other potential schools for W.S., Id. at 383. Dr. Solomon Id. at 382.

pa . Id. at 1272-

mother concluded that it was not an appropriate school for W.S. because, on her visit, she perceived a lack of verbal interactions between students and teachers, and observed that the students there were lower functioning and more non-verbal than W.S. Id. at 1273-76. Based on

Id. at 1278.

Of the three potential schools that OSSE identified, W.S. was accepted only at The Id. at 380-82. After visiting the Auburn School and arranging for W.S. to attend a summer program there for W.S. to attend the Auburn School for the 2018-19 school year. Id. at 440, 1280. On August 10, -19 school year, which provided for placement at The Id. at 386, 388. notified DCPS and OSSE that W.S. would attend the Auburn School for the 2018-19 school year. Id. at 385. On August 13, 2018, DCPS declined to fund placement at the Auburn School and asserted that DCPS had

Id. at 394.

sought funding for W.S. to attend the Auburn School for the 2018-19 school year. Id. at 313.

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subsequently a

for which DCPS and OSSE did not assist. Id. at 405-07.

parents filed a motion with the Hearing Officer to permit such observation, which the Hearing Officer granted. Id. at 416-21. Based on this observation, Dr. Solomon prepared a report See id. at 612-24.

Specifically, Dr. Solomon observed that the proposed class for W.S. consisted of students in Kindergarten through second grade, that staff did not engage in any behavior shaping or behavior correcting even when students exhibited maladaptive or noncompliant behaviors, and that there was no differentiation in instruction between students in different grades. Id. at 619-23. Dr. Solomon also ldren with aggressive behaviors[,] that intervention plans, Dr. Solomon did not observe the use of TEACCH in the classroom. Id. at 623-24.

Plaintiffs presented the testimony of four witnesses: Dr. Solomon, Dr. Marcou, Geoff Wheeler, a behav Id. at 6, 23. Defendant presented the testimony of Dr. Shellie Wood, the Special Education Coordinator and LEA Representative at Janney Elementary. Id. OSSE presented the testimony of Katie Reda, a special programs manager for OSSE. Id.

B. Summary of Hearing Officer Determination The following issue was adjudicated by the Hearing Officer:

provide the Student with an appropriate school/location/placement for the 2018-19 school year?

AR at 6.

5

In a 19-page the Hearing Officer discussed the evidence presented during the administrative proceedings and articulated his findings. See id. at 4-22.

Id. at 13. In this case,

appropriate school,

notwithstanding the contrary reports Id. at

ers small classrooms, a culture that reinforces positive behavior and downplays negative aspects, and the opportunity for the Student to have direct Id. Moreover, the Hearing Officer credited other evidence from The ich tended to show that the school individualizes its behavior plans for there is average to above average, and that the school uses TEACCH systems. Id. Thus, according to the Hearing Officer, Plaintiffs did not present a prima facie case that Defendant failed to offer W.S. a FAPE for the 2018-19 year. Id. at 20. Moreover, the Hearing Officer concluded, even if Plaintiffs did present a prima facie case, Defendant met its burden of persuasion that it offered W.S. a FAPE. Id.

II. CONTENTIONS OF THE PARTIES A. Motion Plaintiffs argue that the Hearing Officer mistakenly concluded that Plaintiffs had not established a prima facie case under the IDEA. Motion at 13. Under the law establishing the burden-shifting framework and analogous precedents, Plaintiffs contend that

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extensive evidence submitted at the hearing, Plaintiffs easily meet this standard. Id. at 13-15.

Plaintiffs further maintain that the Hearing Officer erred in alternatively finding that

W.S. Id. at 16. testified at the hearing, Defe Guild or the facts of this case, and that the brochure upon which the Hearing Officer relied was milar

name. Id. at 16-17. Plaintiffs contend that the Hearing Officer also ignored crucial evidence Id. at 17-20.

-

educational placement, and that the Hearing Officer failed to address this important factor. Id. at 20-22. Plaintiffs point to the testimony of Plaintiff experts, who stated that W.S. exhibited high intelligence which needed to be addressed in IEP and placement. Id. at 22-25. According to Plaintiffs, none of the evidence upon which the Hearing Officer relied did not demonstrate that the program at The could meet these unique needs. Id. at 25-27.

Id. at 27-28. Plaintiffs characterize the mother as based on firsthand information about W.S.

questions. Id. at 28-30.

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parents acted in bad faith. Id.

-faith efforts throughout the Id. at 31-34. Lastly, Plaintiffs argue that the Auburn

placement there should be granted.2

B. s Cross-

Defendant first argues that the Hearing Officer was correct to conclude that Plaintiffs did not establish a prima facie

IDEA. Id. at 18. im is cognizable,

Id. at 19-21.

burden of per the administrative record. Id. at 21. Defendant contends that Plaintiffs did not present sufficient evidence that substantial

2 Plaintiff

for the 2018-2019 school year. Plain Thus, the undersigned omits any further discussion of the appropriateness of the Auburn School and whether Plaintiffs are entitled to placement there.

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implement the IEP. Id. at 21-24. Moreover, addressed in the HOD. Id. at 22-30.

-

status . Id. at 30. Defendant characterizes position as without support in the text of the IDEA or any relevant caselaw. Id. at 30-33.

Defendant also maintains that the Hearing Officer is entitled to deference concerning how much weight to give to various witness testimony and other evidence. Id. at 33. Defendant argues that the Hearing Officer properly considered explained the basis for how much weight to give various evidence. Id. at 33-37. Moreover, Defendant maintains that, even if the Hearing Officer erred in making credibility determinations, this was not a reversible error because it does not affect the central issue upon which no witness Id. at 36.

C. Opposition and Reply

Motion, Plaintiffs argue that they allege a cognizable claim under the IDEA because, unlike the cases upon which Defendant relies, Plaintiffs challenge the adequacy of the educational

pposition to

2-4. Thus,

according to Plaintiffs, the Hearing Officer erred in finding that Plaintiffs had not established a

prima facie case. Id.

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Plaintiffs also argue that D Id. at 4-6. Plaintiffs maintain that they could not have known their concerns until Dr. Solomon visited

Id. at 4-7. Plaintiffs contend that Defendant also misunderstands the core issue at stake here, which is not simply whether but includes whether W Id. at 7-12.

determinations some deference, Plaintiffs argue that the Hearing Officer offered no cogent explanation of crediting some testimony over others and, moreover, no one testified that The Id. at 13-14. Plaintiffs also argue that Defendants, just like the Hearing -

Id. at 14-16.

D.

that Plaintiff did not establish a prima facie because Plaintiffs did not

-4. Moreover,

according to Defendant, even if Plaintiffs established a prima facie case, the Hearing Officer did

Id. at 5.

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Defendant mai and investigate

. Id. at 5-6. Moreover, Defendant asserts, the chronology does not support version of events because Plaintiffs

observation, and her observations were, in effect, critiques of the IEP, Id. at 7.

be evaluated in the manner as an IEP. Id. at 8-10. Lastly, Defendant reiterates that the Hearing -

Id. at 10-13.

III. STATUTORY FRAMEWORK

them 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 M.G. v. Dist. of Columbia, 246 F. Supp. 3d 1, 7 (D.D.C. 2017) (citing 20 U.S.C. § 1400(d)(1)(A); 34 C.F.R. § 300.300); see also Boose v. Dist. of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015). Indeed

M.G., 246 F. Supp 3d at 7 (citing Dist. of Columbia v. Abramson, 493 F. Supp 2d 80, 84 (D.D.C. 2007).

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The ID agency . . . have in effect, for each child with a disability in [its] jurisdiction, an individualized

education delivery system for disabled children[.] Endrew F. ex rel. Joseph F., Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017) (citation omitted). An IEP must be developed in accordance with statutory requirements, see

Id. The Supreme Court also reaffirmed the proposition that the substantive requirement of the Act is satisfied and thus an eligible child has received a FAPE al calculated to enable the Endrew F., 137 S. Ct. at 999 (quoting Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 207 (1982)).

IV. APPLICABLE STANDARD OF REVIEW A parent, or adult student, may file an administrative complaint and have an opportunity for an impartial due process h educational placement of the child, or the provision of a free appropriate public education to such 20 U.S.C. § 1415(b)(6), (f)(1). Further, the IDEA provides a statutory right to

Id.

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 Id. § 1415(i)(2)(C); see also 34 C.F.R.

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provide a FAPE. Boose, 786 F.3d at 1056.

summary judgment operates as a motion for judgment based on the evidence comprising the D.R. v. Dist. of Columbia, 637 F.

to decide the case on the basis of the administr M.G., 246 F. Supp. 3d at 7 (citations omitted).

This evidence . . . and base its decision on the preponderance of the evidence, 20 U.S.C. §§ 1415(i)(2)(B)(ii), (m), the IDEA plainly suggests less deference than is conventional in 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)) (internal quotation

substitut[ing] their own notions of sound educational policy for those of the school Rowley, 458 U.S. at 206. However, a hearing decision without reasoned and specific findings deserves little deference. Reid, 401 F.3d at 521 (quoting Kerkam, 931 F.2d at 87) (internal quotation marks omitted); see also M.O. v. Dist. of Columbia, 20 F. Supp. 3d 31, 40 (D.D.C. 2013) to the knowledge and expertise of the hearing officer, courts will accord less deference if the Additionally,

of

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McAllister v. Dist. of

Columbia, 45 F. Supp. 3d 72, 76-77 (D.D.C., 2014) (finding that [t]he hearing officer was entitled to make reasonable credibility determinations and, in the absence of extrinsic evidence to the contrary, those determinations are entitled to deference from this Court sure that [the] relief set forth in the

Turner v. Dist. of Columbia, 952 F. Supp. 2d 31, 36 (D.D.C.

2013) (internal quotation marks and citations omitted). The party challenging the hearing

Id. at 35 (internal quotation marks omitted); see also Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2005) (finding that the burden of proof in an administrative hearing concerning an IEP is upon the party seeking relief).

V. DISCUSSION term educational placement is not expressly defined by the IDEA Ward v.

Dist. of Columbia, No. 13-cv-00098, 2014 WL 272413, at *6 (D.D.C. Jan. 24, 2014). Courts in this Circuit have nonetheless defined educational placement something between the physical school attended b Id. (citation omitted). A change in physical location of services cannot, by itself, form the basis of a cause of action under the IDEA. See Bowling v. Dist. of Columbia, No. 11-cv-2145, 2013 WL 5214948, at *4 (D.D.C. Sept. 16, 2013). A plaintiff may challenge an educational placement under the IDEA, however, if the child Johnson v. Dist. of Columbia, 962 F. Supp. 2d 263, 268 (D.D.C. 2013).

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Plaintiffs urge a less restrictive standard and argue that the Hearing Officer should have

enable [a child] to progress appropriate[ly] in light of (citing Middleton v. Dist. of Columbia, 312 F. Supp. 3d 113, 143 (D.D.C. 2018)). This proposed standard, which courts use to assess the appropriateness of an IEP, does not account for the differences between review of an IEP and review of an educational placement. Unlike review of an IEP, review of an educational placement is defined by whether a placement in a school and in programming that can fulfill the requirements set forth in the student's IEP. Middleton, 312 F. Supp. 3d at 143 whether an educational placement is appropriate.

Endrew F., 137 S. Ct. at 994 (citation omitted); Johnson, 962 F. Supp. 2d at 267; see also 34 C.F.R. § 300.116 on the child's IEP . Where, as here, the IEP is not at issue, a plaintiff challenging an educational placement is effectively alleging a failure to implement the IEP. Johnson, 962 F. Supp. 2d at 268;

laintiffs have never argued that there were any concerns with the IEP itself.

Courts therefore focus on to determine whether an educational placement is Johnson, 962 F. Supp. 2d at 267-68 (citing Hinson ex rel. N.H. v. Merritt Educ. Ctr., 579 F. Supp. 2d 89, 104 (D.D.C. 2008)); see also O.O. ex rel. Pabo v. Dist. of Columbia, 573 F. Supp. 2d 41, 53-54 (D.D.C. 2008); Roark ex rel. Roark v. D.C., 460 F. Supp. 2d 32, 44 (D.D.C. 2006) ( To determine whether [a] placement was appropriate, one must refer to the IEP. .

A. The Hearing Officer Erred in Concluding That Plaintiffs Did Not Establish a Prima Facie Case

15

In due process child's individual educational program or placement, or of the program or placement proposed by the public agency, D.C.

Code § 38-2571.03(6)(A)(i). If a burden of persuasion falls on the public agency appropriateness of the existing or proposed program or placement Id.

and no court in this Circuit appears to have addressed the issue, the undersigned nonetheless finds that the Hearing Officer applied the wrong standard under any definition. Id.

Generally speaking, a burden of production requires only that a party produce enough evidence . . . to justify sending the case to [a] jury Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5122 (2d ed. Supp. 2020); see also Burden of Production, Black's Law Dictionary (11th ed. 2019) A party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict. . Across different areas of substantive law, courts find that the burden of production for a prima facie case is low. See 21B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5122 (2d ed. Supp. 2020) burden of production weighs less than the burden of persuasion For disparate-impact causes of action under Title VII of the Civil Rights Act, for example, establishing a prima facie be rigid, mechanized, or ritualistic Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (citation omitted). In antitrust cases involving Section 7 of the Clayton Act, 15

16

U.S.C. § 18 it is easy to establish a prima facie case United States v. Baker Hughes Inc., 908 F.2d 981, 992 (D.C. Cir. 1990).

The Hearing Officer appears to have applied a more stringent standard, stating that

report and testimony came across as a post-hoc decision to

3

AR at 20. Of course, a Hearing Officer is entitled to

some deference in assessing witness credibility and weighing evidence. See McAllister, 45 F. Supp. 3d at 77. In determining the sufficiency of a prima facie case, however, a hearing officer must determine whether, after considering all of a plaintiff evidence, a reasonable trier of fact could find in favor of the plaintiff.

The Hearing Officer therefore erred in two ways. First, the Hearing Officer merely stated his own opinion about the persuasiveness of a particular, key witness rather than assessing whether a reasonable trier of fact Second, the Hearing Officer inter alia s contention

was inappropriate. Rather than applying this standard in the first instance, the undersigned recommends that, on remand, the Hearing Officer apply the foregoing framework in determining

substantially implementing [ Johnson, 962 F. Supp. 2d at 268.

3 The Hearing O

AR at 20 n.3 (citing E.A.M. v. New ., No. 11 CIV. 3730 LAP, 2012 WL 4571794, at *11

See SEC v. Chenery, 332

U.S. 194, 196 (1947) may not supply a reasoned basis for the agency's action that the agency itself has not given

17

B. With One Exception, the Hearing Officer Did Not Err in Concluding That Defendant Met Its Burden of Persuasion

Plaintiffs fault the Hearing Officer for mischaracterizing or omitting evidence, ignoring -exceptional status, failing to make proper credibility determinations, and questioning -34. For the reasons that follow, the undersigned finds that, with one exception, Defendant met its burden of persuasion because IEP.

The undersigned alternatively finds that, with one exception, the Hearing Officer made reasoned and specific findings with respect to all of issues , whether they were included in the IEP or not. The Hearing Officer erred in his treatment of aggressive behaviors, however, because they were central to the IEP and not addressed in the HOD.

1. Defendant Met Its Burden of Persuasion In Demonstrating that Most of

The Hearing Officer properly concluded that Defendant met its burden of persuasion by establishing that purported requirements for any educational placement were not . In their amended due process complaint, Plaintiffs listed nine concerns :

1. There is insufficient academic challenge for [W.S.], given cognitive ability and unique circumstances.

2. The student population appears inappropriate for [W.S.].

3. CG [Children's Guild] does not accept children with aggressive behaviors, which [W.S.] has demonstrated for more than two years.

4. There is a noticeable lack of differentiation in instruction.

5. There is a noticeable absence of behavior-shaping, which [W.S.] clearly needs.

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6. There is no evidence of the use of TEACCH, which is supposedly used in the school.

7. There was no use of ABA (Applied Behavior Analysis) at CG [Children's Guild], which [W.S.] requires.

8. The behavioral system, PBIS, is not individually targeted for the students.

9. There is an insufficient availability of the sensory room for preventative intervention.

AR at 611.4 With the exception of the third concern, -operative IEP does not mention these purported requirements. Id. at 712-40. These concerns not found in the IEP cannot form the basis of an educational placement challenge because the question here is whether Johnson, 962 F. Supp. 2d at 268.

Outside the IEP, the record does include references to, for example, AR at 343 (revealing a high IQ score), 1160-61 (testimony concerning twice-exceptional status as a very bright student with certain disabilities). This consideration could conceivably bear on whether W.S. required an educational placement with similar peers and a certain level of differentiation in instruction. See id. at 611. The appropriate time to address these concerns, however, was the IEP meeting. See, e.g., 20 U.S.C. § 141 consider the use of positive behavioral interventions and supports, and other strategies Urging a contrary conclusion, Plaintiffs point to the dilemma that faced in July and August 2018. -6. Defendant identified three schools for W.S. on July 30, 2018. AR at 383. out whether to attend a school not identified by Defendant by August 10, 2018. See id. at 558; 34 C.F.R. § 300.148(d)

4 The undersigned can find no specific reference to this list of concerns in the amended due process complaint itself, but Plaintiffs assert, and Defendants do not contest, that these issues were properly before the Hearing Officer. See AR at 306-14; see also, generally

19

(requiring notice of rejection at least ten days before removal). parents quickly and diligently The undersigned is sympathetic to the difficulty decisions in a short amount of time. This rushed timeframe, however, demonstrates why the IDEA does not require, as Plaintiffs effectively urge, a de novo programming at the time of a new educational placement. An IEP is a for collaboration among parents and educators and . . . careful consideration of the child's individual circumstances. Endrew F., 137 S. Ct. at 994. , Defendant reasonably relied on IEP, a prospective and Id.

Plaintiffs cite no precedent or provision of the IDEA which demands a contrary Eley v. District of Columbia, 47 F. Supp. 3d 1 (D.D.C. 2014), is misplaced.

whether the stay-put provision of the IDEA applied to a change in schools. Id. at 7 (citing 20 U.S.C. § 1415). Thus, the court did not consider whether the educational placement was appropriate, only - while proceedings under the IDEA were pending. Id. at 17 (citation omitted). As in Johnson, the question here is whether an educational placement deprived a child of a FAPE, a question which turns on whether the placement is capable of substantially implementing a IEP. 962 F. Supp. 2d at 268. The undersigned therefore finds no error in the HOD with respect to all except for the third.

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2. With One Exception, the Hearing Officer Properly Weighed the Evidence

treatment of the record evidence. With the exception of one issue, the undersigned finds that, even if the

was appropriate.

a. The Hearing Officer Made Reasonable Credibility Determinations

support in the record or the caselaw in this Circuit. on at 27-30. A hearing to make reasonable credibility determinations and, in the absence of extrinsic evidence to the contrary, those determinations are entitled to deference from this Court McAllister, 45 F. Supp. 3d at 77. Far f , the Hearing Officer considered and methodically explained why he did not credit specific testimony, statement-by-statement and issue-by-issue. See, e.g., AR at 19 (concluding that there was sufficient differentiation of instruction because, inter alia observed

See id. at 17-20

several issues).

The only broad credibility determination in the HOD is a brief characterization of one witness, Dr. Solomon.5 The Hearing Officer found that her testimony seemed like -hoc

5 onclusions regarding differentiation of instruction at The

21

the Auburn School. AR at 20. This characterization follows an issue-by- other evidence. Id. at 17-20. In that discussion, the Hearing Officer explains that many of the and were

. See id. Read in

context, the Hearing Officer reasonably characterized the report and testimony - based on this issue-by-issue recitation of the evidence. 6 AR at 20.

Plaintiffs nonetheless argue that, as a general matter, experience with both W.S. and The Childr -30. However, Dr. Wood, a witness that the Hearing Officer credited, had more than an adequate foundation of knowledge regarding both topics. She visited had

1314-15, 1327. in Id. at 1387-90.

knowledge

little basis in the record. See the Hearing Officer is

still entitled to deference in the absence of contradicting the Hearing

broad, adverse credibility finding, but context reveals that it is limited to that issue. See

See id. (citing AR at 1194). Plaintiffs nonetheless do not demonstrate how this wrong.

6 See

Plaintiff - mother faith. See id. The undersigned reads these portions of the HOD as reasonable characterizations of the facts.

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tions. McAllister, 45 F. Supp. 3d at 77. Thus, the undersigned

b. With the Exception of Evidence Related to Aggressive Behavior, the Hearing Basis in the Record

Guild was an appropriate educational placement, Plaintiffs contend that the Hearing Officer merely state[d] that the proposed placement at Childr

With one exception, however, the Hearing Officer discussed each concern that Plaintiffs raised in their due process complaint with sufficient detail. For example, in room as

19. Plaintiffs do not specifically challenge this factual finding. Instead, in a scattershot fashion, Plaintiffs use several examples to show that al With the exception of issues related to s, the

conclusions.

Plaintiffs first argue that should have been more persuasive to the Hearing Officer s witnesses. See -19. As discussed supra, the Hearing Officer adequately explained his credibility determinations. Moreover, even if Plaintiffs are correct that their witnesses had more experience or familiarity with W.S. or The Plaintiffs must still show that the Hearing Officer was somehow

23

. See id. Dr. Solomon was clearly much more familiar with the program Reid, 401 F.3d at 521 (citation omitted). Thus, the bulk of

these arguments do not address whether the Hearing Officer made reasonable conclusions about

The only two issues that Plaintiffs challenge with any specificity

s

could provide individualized behavior plans. The Hearing Officer, however, made reasonable he behavioral system, PBIS, is . . . individually targeted for the students. AR at 611. The Hearing Officer relied on two pieces of evidence to support the

Id. at 20. Dr. Wood testified that PBIS

behavior plan through their staff and other resources. Id. at 1332-33. Further, an email from a Special Education Coordinator Id. at 403.

behavior plan and that the email does not provide information -20. In combination, however, this evidence supports the conclusion t individual Thus, even if a resolution of the concerns Plaintiffs raised in the due process complaint was required for a review of

24

behaviors these requirements.

3. The Hearing

s

Unlike other concerns Plaintiffs raised in their due process complaint, however, aggressive behaviors were These behaviors were also a concern for

ducation

Id.

d in aggressive and disruptive behavior like verbally or physically threatening other students. Id. at 722. therefore included

demonstrated inten Id. at 723. Plaintiffs raised the issue of whether See id. at 611.

The Hearing Officer did not reach any conclusions regarding whether The Childr Guild could provide services or indeed, has ever provided services, to a student with aggressive behaviors like W.S. See id. at 14-21. Far from providing resolving this critical issue, there are no findings at all. Reid, 401 F.3d at 521 (citation omitted). Read generously, the HOD contains two pieces of evidence which could support such a conclusion, but given the contradictory and unreliable nature of some of this evidence, the Hearing Officer should have made reasoned and specific findings regarding how The

25

aggressive behaviors. Reid, 401 F.3d at 521 (citation omitted).

The first piece of evidence is

Guild, describes some programs which are separate from the school which W.S. was slated to attend. Id. at 390. The aggressiveness appears in section of the brochure ded Help Center. Id. at 392. The section for includes no such description. Id. at 392. Thus, to the extent the Hearing Officer relied on this brochure to find program that W.S. would attend

t

supported that conclusion. Reid, 401 F.3d at 521 (citation omitted).

The Hearing Officer did not discuss, but did reference, a second piece of evidence bearing on this question in broadly citing and approving of the testimony of Ms. Reda. AR at 20.

represented that it could provide services to students with aggressive behaviors, Ms.

his level of aggression, and that they had worked with similar students in the past who had that Id. at 1394. Other witnesses, however, provided different accounts. Dr.

Solomon, who was also present during the observation , stated

26

Id. at 1175. Dr. Wood

nonetheless accommodate W.S. Id. at 1335. Just as the Hearing Officer did for other issues, the Hearing Officer should have reconciled this contradictory record and reached a specific conclusion. See id. at 17 (concluding, inter alia methodology after reconciling evidence which supported and contradicted that conclusion). On remand, the undersigned recommends that the Hearing Officer do the same for the issue of could accommodate students with aggressive behaviors like W.S.

IV. CONCLUSION For all of the foregoing reasons, it is, on this 17th day of August, 2020, RECOMMENDED that Motion for Summary Judgment (ECF No. 10) be GRANTED and that this matter be remanded to the District of Columbia Office of State Superintendent for Education for further proceedings in accordance with the instant Report and Recommendation; and it is FURTHER RECOMMENDED mary Judgment (ECF No. 11) be DENIED.

DEBORAH A. ROBINSON

United States Magistrate Judge

Within fourteen days, either party may file written objections to this report and recommendation. The objections shall specifically identify the portions of the findings and recommendations to which objection is made and the basis of each such objection. In the absence of timely objections, further review of issues addressed herein may be deemed waived.

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