UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) J.N., et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 07-665 (RWR) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ______________________________ )

MEMORANDUM OPINION

Kea Norris and her minor son, J.N., brought this action

under the Individuals with Disabilities Education Act (“IDEA”),

(2000), challenging a hearing officer’s

dismissal of her due process complaint that alleged that the

District of Columbia Public Schools (“DCPS”) denied J.N. a free,

appropriate public education (“FAPE”) by failing to comply timely

with earlier directives in a hearing officer’s determination

(“HOD”), failing to allow Norris to help develop J.N.’s

individualized education program (“IEP”), and failing to provide

J.N. with an appropriate educational placement. The parties have

cross-moved for summary judgment. Although DCPS did not comply

timely with the HOD, Norris has failed to show error in the

hearing officer’s determination that the delay was not harmful.

However, DCPS has shown no evidence of any reasonable diligence

in responding to or accommodating Norris’ requests to reschedule

the meeting to develop J.N.’s IEP so that she could participate, -2-

a procedural failing that renders infirm the hearing officer’s

finding that J.N.’s school placement was appropriate. Thus, each

motion will be granted in part and denied in part.

BACKGROUND

When this complaint was filed, J.N. was a twelve-year-old

student enrolled at a public school, Aiton Elementary (“Aiton”),

and classified as learning disabled and eligible for special

education and related services. (Defs.’ Stmt. of Material Facts

(“Defs.’ Stmt.”) ¶¶ 1-3.) In January 2006, an IEP was developed

requiring that J.N. receive twelve and one-half hours of

specialized instruction, one hour of speech language services,

and 30 minutes of psychological services each week. (Id. ¶ 7.)

In March 2006, at Norris’ request, a hearing officer directed

DCPS to conduct a speech and language evaluation, an occupational

therapy evaluation and a clinical psychological evaluation within

10 days of the order; perform a Functional Behavioral Assessment

and a Behavior Intervention Plan within 15 days of the order;

complete an Assistive Technology evaluation withing 15 days of

the order; and convene a multi-disciplinary team (“MDT”)/IEP

meeting no later than 15 days after the receipt of the last

evaluation. (See A.R., Ex. 7. at 0204.)

Months later, on September 8, 2006 Norris filed an

administrative due process complaint against DCPS arguing, in

part, that DCPS had failed to complete the required evaluations, -3-

failed to convene an MDT/IEP meeting, and failed to provide the

necessary compensatory education. (A.R., Ex. 10 at 0328-32.)

DCPS eventually completed all of the evaluations (Def.’s Stmt.

¶ 5), although J.N. appears to have received all of the ordered

services in the interim. (Defs.’ Mem. of P. & A. in Supp. of

Defs.’ Mot. for Summ. J. and in Opp’n to Pls.’ Mot. for Summ. J.

(“Defs.’ Mem.”) at 13.) On September 21, 2006, DCPS conducted

the required MDT/IEP meeting without Norris after notice to her

(Defs.’ Stmt. ¶¶ 10, 13) and unanswered requests by her to DCPS

to reschedule it. (See A.R., Ex. 6 at 0193-94.) At the meeting,

DCPS developed another IEP, calling for the same amount of

specialized instruction and services as those called for in the

previous IEP. (Defs.’ Stmt. ¶ 7.)

Two months later, a hearing officer held a hearing on

Norris’ due process complaint. The three DCPS professionals who

had been providing J.N. with special education instruction,

speech and communication services, and psycho-social counseling

services under the IEP over the previous year testified. All

said J.N. had made progress at Aiton since the previous year.

(Defs.’ Stmt. ¶¶ 18, 23-36.) On January 11, 2007, the hearing

officer dismissed the plaintiffs’ administrative complaint after

finding that DCPS had complied -- although untimely -- with the

March 2006 HOD, that the delay did not harm J.N., that DCPS’

efforts to obtain Norris’ participation in the IEP meeting were -4-

diligent and reasonable and revealed no procedural flaw, and that

J.N.’s educational placement at Aiton was appropriate. (A.R.,

Ex. 2 at 0007.) Norris brought this action, challenging the

hearing officer’s dismissal.

DISCUSSION

The parties have cross-moved for summary judgment under

Federal Rule of Civil Procedure 56(c). Rule 56(c) provides for

entry of summary judgment if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, “show that there is no genuine issue as to

any material fact and that the movant is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c); see also Moore v.

Hartman,

(D.C. Cir. 2009). “The plain language

of Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who

fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett,

(1986).

IDEA “ensure[s] 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 education,

employment, and independent living.”

(d)(1)(A). -5-

It “allows parents to file administrative complaints and request

due process hearings ‘with respect to any matter relating to the

identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education to

such child.’” Wright v. District of Columbia, Civil Action No.

05-0990 (RWR),

, at *2 (D.D.C. April 17, 2007)

(quoting

(b)(6)(A)). A reviewing court is to

“review the administrative record, hear additional evidence if so

requested by the parties, and, based on the preponderance of the

evidence, . . . grant such relief as the court determines is

appropriate.”

(internal quotation marks omitted). The

administrative officer’s findings must be given due weight, but

less deference is called for than would normally be accorded an

administrative decision. See Kerkam v. McKenzie,

(D.C. Cir. 1988). “[A] party challenging the administrative

determination must at least take on the burden of persuading the

court that the hearing officer was wrong, and . . . a court

upsetting the officer’s decision must at least explain its basis

for doing so.”

A court’s primary consideration is

compliance with the procedural requirements of IDEA, and a court

should not substitute its own judgment for that of school

agencies regarding what is in the best educational interests of a

student. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.

Rowley,

(1982). -6-

I. DELAYED COMPLIANCE WITH HOD

“[P]rocedural violations of IDEA do not, in themselves,

inexorably lead a court to find a child was denied FAPE.”

Schoenbach v. District of Columbia,

(D.D.C. 2004). “[A]n IDEA claim is viable only if those

procedural violations affected the student’s substantive rights.”

Lesesne ex rel. B.F. v. District of Columbia,

(D.C. Cir. 2006) (emphasis in original); see also C.M. v. Bd. of

Educ. of Union County Reg’l High Sch. Dist.,

(3d Cir. 2005) (per curiam) (“[O]nly those procedural

violations of the IDEA which result in loss of educational

opportunity or seriously deprive parents of their participation

rights are actionable.”); see, e.g., Kruvant v. District of

Columbia,

(D.C. Cir. 2004) (denying

parents relief because “although DCPS admits that it failed to

satisfy its responsibility to assess [the student] for IDEA

eligibility within 120 days of her parents’ request, the

[parents] have not shown that any harm resulted from that

error”). “A delay does not affect substantive rights if the

student’s education would not have been different had there been

no delay.” D.R. ex rel. Robinson v. Gov’t of D.C.,

(D.D.C. 2009) (finding that the defendant’s delay

affected the student’s substantive rights because the student’s

most recent IEP differed from the one previously issued). -7-

Norris argues, in part, that the hearing officer erred by

not finding that DCPS’ failure to comply timely with the March

2006 HOD caused J.N. irreparable harm. Norris, however, has

failed to show that the hearing officer’s conclusion was wrong.

Although explanation for that conclusion was spare, the record

evidence reflected a basis for the conclusion. While the ordered

evaluations were delayed, J.N. received in the interim the

services and instruction that the IEP completed in January 2006

required. The fact that the IEP completed in September 2006

(A.R., Ex. 9 at 0303) called for the same amount of specialized

instruction and services as the one completed in January 2006

(Id., Ex. 7 at 0229) was some evidence of lack of harm. See,

e.g., D.R. ex rel. Robinson,

. The

testimony by J.N.’s teacher and counselors that he had made

progress under the IEP supported the hearing officer’s

conclusion. Norris has not shown that harm resulted from the

delayed evaluations and IEP meeting, and the hearing officer’s

determination that DCPS’ delay did not result in educational harm

to J.N. will be upheld.

II. MEANINGFUL PARTICIPATION

The IDEA’s procedural safeguards help ensure that parents

are able to participate fully in decisions affecting their

child’s education. See Rowley,

n.6; see also

Holland v. District of Columbia,

(D.C. Cir. -8-

1995). The IDEA “guarantees parents of disabled children the

opportunity to participate in the evaluation and placement

process.” LeSesne ex rel. B.F. v. District of Columbia, Civil

Action No. 04-0620 (CKK),

, at *2 (D.D.C. July 26,

2005); see also

(f), 1415(b)(1). While “not

every technical violation of the procedural prerequisites of an

IEP will invalidate its legitimacy . . ., procedural inadequacies

that . . . seriously infringe upon the parents’ opportunity to

participate in the IEP formulation process . . . clearly result

in the denial of a FAPE.” A.I. ex rel. Iapalucci v. District of

Columbia,

(D.D.C. 2005) (internal

quotation marks and citations omitted).

The applicable regulations further emphasize the importance

of parental participation in IEP meetings:

Each public agency must take steps to ensure that one or both of the parents of a child with a disability are present at each IEP meeting or are afforded the opportunity to participate, including (1) [n]otifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and (2) [s]cheduling the meeting at a mutually agreed upon time and place.

(a). However, “[a] meeting may be conducted

without a parent in attendance if the public agency is unable to

convince the parents that they should attend” and the agency

makes detailed records of the attempts to contact the parent.

See

-9-

Norris argues that she was not given an opportunity to

participate in the September 2006 IEP meeting. (Pls.’ Mem. of P.

& A. in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ Mem.”) at 9-12.)

The record demonstrates that DCPS faxed to Norris'

representatives on August 30, 2006 a notice that the MDT/IEP

meeting was being scheduled. The notice invited Norris to attend

and to respond confirming one of three suggested

meeting dates: September 7, 2006, which was eight days away;

September 14, 2006; and September 21, 2006. Having received no

response, DCPS faxed on September 12, 2006 a second notice and

invitation offering as suggested meeting dates September 14,

2006, which was two days away, and September 21, 2006. (See A.R.,

Ex. 8 at 0279; Ex. 9 at 0283, 0286, 0288.) Having still

received no response, DCPS faxed on September 18, 2006 a

third notice and invitation, informing Norris that the meeting

would be held on September 21, 2006, which was three days away.

(See A.R., Ex. 9 at 0289; Ex. 6 at 0193 (letter acknowledging

receipt).) Each notice asked the invitee to call Angela Allen at

the Aiton phone number typed on the notice to arrange a mutual

time if a listed time was inconvenient. Although each

notice said that “[a]fter the third attempt to contact the

parent, the meeting will be held without further notice[,]” no

notice warned that the rescheduling option was unavailable after

a third notice was issued. (See A.R., Ex. 9 at 0286, 0288-89.) -10-

Norris presented evidence of a timely response and the

hearing officer failed to address it. (A.R., Ex. 2 at 0003

(January 11, 2007 HOD identifying plaintiffs' record exhibit “JN-

28,” now marked as A.R., Ex. 6 at 0193 (see A.R., Ex. 2 at 0010-

11 (referring to “JN-28”))).) While Norris’ representative Annie

Pressley responded only after the third notice was

sent, she did call Angela Allen on each of the next three days --

September 19, 20, and 21, 2006 -- and leave messages that the

September 21 date was not a good date. Pressley also spoke with

the social worker on the MDT team and proposed two alternative

meeting dates and times in early October. The social worker

vowed to notify Allen that Norris and her representative were

not available on September 21. DCPS did not respond to Pressley

before holding the September 21 meeting (see A.R., Ex. 6 at 0190,

0193), and has presented no evidence to rebut Norris' evidence of

her timely response to the third DCPS notice.

While the D.C. Circuit does not appear to have addressed

whether a failure to accommodate a parent’s reasonable request to

reschedule an IEP meeting constitutes a denial of a FAPE, the

Ninth Circuit has found that refusing to reschedule an IEP

meeting at the parents’ request represents a significant

procedural defect. In Shapiro ex rel. Shapiro v. Paradise Valley

Unified Sch. Dist. No. 69,

(9th Cir. 2003), the

court stated that the school district violated IDEA by failing to -11-

coordinate with a student’s parents to schedule the IEP, and by

simply notifying parents of the meeting and refusing to honor the

parents’ timely rescheduling requests. Id. at 1079 (overruled on

other grounds); cf. Michael J. v. Derry Twp. Sch. Dist., No.

103CV1104,

, at *17 (M.D. Pa. Jan. 19, 2006)

(finding no procedural violation where the district scheduled and

held without the parents an IEP meeting on a date reached by

mutual agreement with the parents, encouraged the parents to

participate, and noted that the meeting would go forward in any

event if the parents declined to participate).

Even though DCPS attempted to coordinate a meeting with

Norris as early as August 30, 2006 (A.R., Ex. 9 at 0286), the

parties never agreed mutually on the September 21 meeting date.

Also, there is no evidence that Norris could not be convinced to

attend the meeting; rather, Norris made timely, diligent and

reasonable efforts to reschedule the September 21 meeting, and

there is no evidence that DCPS did anything to respond to or

accommodate Norris’ timely and reasonable requests to reschedule.

DCPS failed to fulfill its duty to schedule a mutually agreed

upon time and place for the IEP meeting. Thus, Norris has

provided sufficient evidence to support her claim that the

hearing officer’s determination that DCPS’ efforts were diligent

and reasonable was wrong. -12-

III. APPROPRIATE PLACEMENT

“IDEA was intended to provide a basic floor of opportunity

and an individualized plan designed to provide educational

benefit to the handicapped child.” Schoenbach,

(internal quotation marks omitted). The question of

whether a public school placement is appropriate rests on “(1)

whether DCPS has complied with IDEA’s administrative procedures

and (2) whether or not the IEP . . . was reasonably calculated to

provide some educational benefit to [the student.]”

.

“A school district must comply with the procedural requirements

and safeguards listed in

.”

“An IEP must be ‘reasonably calculated’ to confer

educational benefits on the child, . . . but it need not

‘maximize the potential of each handicapped child commensurate

with the opportunity presented non-handicapped children.’”

Anderson v. District of Columbia,

(D.D.C.

2009) (quoting Rowley,

) (internal citations

omitted). The “sufficiency of the educational benefits offered

[is not] measured by any single, narrow standard.” Reusch v.

Fountain,

(D. Md. 1994). “[A]cademic

progress is strong, though not [dispositive], evidence that an

IEP provides educational benefit.” Schoenbach,

(considering the student’s academic progress, as well as

her social-emotional, organizational, interpersonal social, -13-

coping, and attending skills). “[C]ourts must ‘afford some

deference to the expertise of the . . . school officials

responsible for the child’s education.’” Anderson,

(quoting Lyons by Alexander v. Smith,

(D.D.C. 1993)). Moreover, “a District Court must accept the

state agency’s credibility determinations unless the non-

testimonial, extrinsic evidence in the record would justify a

contrary conclusion.” Shore Reg’l High Sch. Bd. of Educ. v. P.S.

ex rel. P.S.,

(3d Cir. 2004) (internal

quotation marks omitted).

Norris argues that Aiton is an inappropriate placement for

J.N., in part, because DCPS completed the IEP without her

involvement. (Pls.’ Mem. at 14.) Norris also argues that the

IEP is not reasonably calculated to provide J.N. some educational

benefit because certain educational evaluations reveal that J.N.

has regressed in all subject areas. (Pls.’ Opp’n to Defs.’ Mot.

for Summ. J. and Reply to Defs.’ Opp’n to Pls.’ Mot. for Summ. J.

(“Pls.’ Opp’n”) at 8-9.)

Norris’ substantive argument does not hold sway. Norris

cited two DCPS pyscho-educational evaluations showing that J.N.’s

scores had declined (A.R., Ex. 4 at 0093-97; Ex. 6 at 0164-75),

and Norris’ own hearing testimony that J.N. had been at Aiton for

over three years and she had seen no improvement in him. (Pls.’

Mem. at 13.) The only other testimony Norris offered at the -14-

hearing was that of an administrator at High Road Academy (“High

Road”), a full-time, special education private school, who

testified that J.N. had been accepted at High Road and that High

Road is an appropriate placement for J.N. (A.R., Ex. 2 at 0005

¶¶ 6-7.)

The defendants, meanwhile, concede that the evaluations

offered by Norris reveal that he scored lower in the academic

areas tested (Def.’s Mem. at 11), but they argue that the

evaluations are not conclusive evidence that J.N. is not

receiving some educational benefit. The defendants also argue

that the plaintiff has failed to dispute the testimony offered by

“three DCPS witnesses with personal knowledge of J.N. who

testified that J.N. is making progress and that Aiton can

implement his IEP.” (Id.; see also A.R., Ex. 2 at 0005-6 ¶¶ 8-

13.) Furthermore, the defendants cite to the DCPS professionals’

testimony that J.N. has become more tolerant to change and more

amendable to challenging himself (Defs.’ Mem. at 9; A.R., Ex. 12

Tr. 1:11-13), and has progressed in the areas of speech,

communication, math and reading. (A.R., Ex. 2 at 0006 ¶¶ 12,

14.) The hearing officer found this testimony persuasive,

stating that “all of DCPS’ witnesses credibly testified that the

student[’s] IEP was being implemented, the student had made

progress with his communication problems and the student was

receiving some academic benefit.” (A.R., Ex. 2 at 0007.) -15-

Although the evaluation evidence provided by Norris can tend

to support her argument that Aiton is an inappropriate placement,

it is not conclusive. Norris has not presented a sufficient

basis for this court to discredit the hearing officer’s

credibility determinations or to substitute her judgment for that

of the hearing officer in weighing it against the evidence

regarding J.N.’s best educational interests provided by the

school officials responsible for J.N.’s education.

Norris’ procedural argument, however, has merit. While not

every procedural violation of the IDEA is fatal to an IEP’s

legitimacy, DCPS’s failure to meet its obligation to coordinate

with Norris to schedule J.N.’s IEP meeting eliminated her ability

to participate in the formulation process. See, e.g., A.I. ex

rel. Iapalucci,

(noting that procedural

violations that seriously infringe upon the parents’ opportunity

to participate in the IEP formulation process clearly result in a

denial of a FAPE); Amanda J. ex rel. Annette J. v. Clark County

Sch. Dist.,

(9th Cir. 2001) (“Procedural

violations that interfere with parental participation in the IEP

formulation process undermine the very essence of the IDEA. An

IEP which addresses the unique needs of the child cannot be

developed if those people who are most familiar with the child’s

needs are not involved or fully informed.”). Furthermore,

“Congress placed every bit as much emphasis upon compliance with -16-

procedures giving parents . . . a large measure of participation

at every stage of the administrative process . . . as it did upon

the measurement of the resulting IEP against a substantive

standard.” Rowley,

. By failing to respond to

Norris’ request to reschedule and formulating the September IEP

without Norris’ attendance at the IEP meeting or input, DCPS’

actions “result[ed] in the denial of a FAPE.” A.I. ex rel.

Iapalucci,

; see also

(c)

(requiring an IEP Team to “determine . . . the educational needs

of the child” based in part upon “input from the child’s

parents”), 1415(b)(1) (requiring “[a]n opportunity for the

parents of a child with a disability to examine all records

relating to such child and to participate in meetings with

respect to the identification, evaluation, and educational

placement of the child”);

(a). Thus, DCPS’

conduct failed the first prong of the test for whether a public

school placement is appropriate, and Norris has shown that the

hearing officer’s decision that Aiton is an appropriate placement

is flawed.1

1 Norris argues that High Road is the appropriate placement for J.N., and the hearing officer’s contrary decision is wrong. “The IDEA requires school districts to place disabled children in the least restrictive environment possible.” Roark ex rel. Roark v. District of Columbia,

(D.D.C. 2006) (citing

(a)(5); 34 C.F.R. 300.550;

(2006)). “[I]n determining the least restrictive environment, consideration is given to the types of services that the child requires.”

(citing

(d)). “Mainstreaming of handicapped children into -17-

CONCLUSION

Although DCPS did not timely comply with the March 2006 HOD,

Norris has failed show that the delay was harmful. However, DCPS

has failed to show that Aiton school officials made any

reasonable efforts to respond to Norris’ requests to reschedule

the IEP meeting. Thus, the hearing officer’s determination that

Norris had an opportunity to participate in J.N.’s IEP and that

J.N.’s placement at Aiton is appropriate will not be sustained.

Accordingly, plaintiffs’ motion for summary judgment will be

regular school programs where they might have opportunities to study and to socialize with nonhandicapped children is not only a laudable goal but is also a requirement of the Act.” DeVries by DeBlaay v. Fairfax County Sch. Bd.,

, 878 (4th Cir. 1989).

High Road is a full-time special education program with no general education classes. (Defs.’ Mem. at 14.) None of the latest evaluations or latest or previous IEPs for J.N. in the record, however, call for a full-time special education placement. (A.R., Ex. 2 at 0007; Ex. 7 at 0233; Ex. 9 at 0310, 0319.) Rather, the evaluations reflect that J.N. needs a combination setting, with both general education and a special education resource classroom. (A.R., Ex. 9 at 0319.) Moreover, even though the IDEA guarantees each child a FAPE, it does not guarantee an “education that is designed according to a parent’s desires.” Hinson ex rel. N.H. v. Merrit Educ. Ctr.,

(D.D.C. 2008) (internal quotation marks omitted). Because High Road is not the least restrictive environment, the hearing officer’s finding that J.N.’s placement at High Road is inappropriate will be upheld despite Norris’ desire to have J.N. placed at High Road. -18-

granted in part2 and defendants’ motion for summary judgment will

be granted in part. A separate order accompanies this Memorandum

Opinion.

SIGNED this 11th day of January, 2010.

/s/ RICHARD W. ROBERTS United States District Judge

2 In her summary judgment motion, Norris seeks attorney’s fees and costs for this action and the administrative proceedings. (Pls.’ Mem. at 15.) The IDEA authorizes an “award [of] attorney’s fees to a ‘prevailing party’ who is the parent of a disabled child[.]” Jester v. Gov’t of D.C.,

, 821 (D.C. Cir. 2007);

(i)(3)(B). “An action or proceeding under IDEA includes both civil litigation in federal court and administrative litigation before hearing officers.” A.C. ex rel. Clark v. District of Columbia, Civil Action No. 06- 00439 (HHK),

(D.D.C. Dec. 15, 2009). “A party is generally considered to be the prevailing party if [she] succeeds ‘on any significant issue in litigation which achieves some of the benefit . . . sought in bringing suit.’” Artis ex rel. S.A. v. District of Columbia,

(D.D.C. 2008) (quoting Hensley v. Eckerhart,

(1983). Because Norris has succeeded, in part, on the merits of her complaint, Norris is entitled to attorney’s fees.