UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JACQUELINE WILSON,

Plaintiff,

v. Civil Action 09-02424 (HHK)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Plaintiff Jacqueline Wilson brings this action against the District of Columbia on behalf

of her minor child A.W., seeking a judgment that the District of Columbia Public Schools

(“DCPS”) deprived A.W. of the free and appropriate public education guaranteed to him by the

Individuals with Disabilities Education Act (“IDEA”),

et seq. Wilson seeks the

reversal of an administrative hearing officer’s determination that DCPS did not violate A.W.’s

rights by failing to provide transportation for extended school year activities mandated by A.W.’s

individualized education program. Before the Court are the parties’ cross-motions for summary

judgment [## 8, 11]. Upon consideration of the motions, the oppositions thereto, and the

administrative record of this case, the Court concludes that Wilson’s motion must be granted and

the District’s motion must be denied.

I. BACKGROUND

A. Statutory Framework

Through the IDEA, the federal government provides funding to state and local

educational agencies, including those of the District of Columbia, see

(31), for the education of disabled children. As a condition of receiving that funding, an educational

agency must maintain policies and procedures ensuring that a “free appropriate public education

is available to all children with disabilities residing in the [jurisdiction] between the ages of 3 and

21.”

(a)(1)(A). A “central component of a disabled student’s special education

under the IDEA” is the individualized education program (“IEP”), which is a written statement

setting out the student’s “individually tailored goals and the means of achieving them.” District

of Columbia v. Doe,

, 892 n.5 (D.C. Cir. 2010) (citing

(d)). The

IDEA also guarantees a student’s parents “both an opportunity for meaningful input into all

decisions affecting their child’s education and the right to seek review of any decisions they think

inappropriate.”

at 890 (quoting Honig v. Doe,

, 311–12 (1988)) (internal

quotation marks omitted).

B. Factual Background

The facts of this case are essentially undisputed. A.W. is a District resident with multiple

disabilities and is thus entitled to educational services from DCPS under the IDEA. In October

2008, A.W. (who was nine years old at the time this suit was commenced) began attending the

Phillips School of Laurel in Maryland. In April 2009, Wilson, A.W.’s mother, met with a DCPS

IEP team to develop a new IEP to guide A.W.’s education at Phillips. See A.R. at 120–24 (IEP

meeting notes, Apr. 23, 2009). The IEP they produced classified A.W. as multiply disabled and

called for him to receive 26.5 hours per week of specialized instruction, one hour per week of

behavioral support, one hour per week of occupational therapy, and ninety minutes per week of

speech and language therapy. See A.R. at 110–19 (IEP). The IEP also called for A.W. to

participate in an extended school year (“ESY”) program, which would take place from July 1 to

2 July 31, 2009. See A.R. at 112–13. The ESY program was expected to encompass a mixture of

counseling, therapy, and academic and behavioral development. Admin. Hr’g Tr. 26, Sept. 25,

2009 (“Hr’g Tr.”) (test. of Judy Miller). According to the IEP, ESY services were needed

because A.W. had difficulty adjusting to the program and staff at Phillips; although he had begun

to make developmental progress, that progress was slowed by the issues that he was expected to

work on during ESY. A.R. at 112.

On the day the ESY program was scheduled to begin, however, DCPS did not send a bus

to transport A.W. to the program. Wilson called DCPS to investigate and was told that “they

didn’t have their lists together for the bus services,” and that transportation services should begin

in ten days. Hr’g Tr. 16 (test. of Jacqueline Wilson). Wilson also called Phillips, but was told

that DCPS was responsible for transportation. Hr’g Tr. 16–17. DCPS was ultimately unable to

provide transportation for the first three weeks of the four-week program; by the end of the third

week, Wilson decided that it was not worthwhile to send A.W. to the ESY program for just one

week. Consequently, A.W. did not attend the program at all.

Wilson subsequently filed an administrative due process complaint, alleging that DCPS’s

failure to provide A.W. with transportation to the ESY program denied him the free appropriate

education that he is guaranteed under the IDEA and seeking a “Linda Mood Bell Assessment” to

determine what amount of compensatory education services were warranted as a result. A.R. at

15 (admin. due process compl. notice). An administrative hearing was held on September 25,

2009. The Hearing Officer determined that A.W. had “offered uncontroverted evidence that

DCPS failed to provide [A.W.] transportation to the first three weeks of ESY,” but that there was

“no evidence as to any educational harm that resulted from the deprivation of these services.”

3 A.R. at 6 (Hearing Officer’s decision). In particular, he found no indication that A.W. had

experienced the type of academic regression that ESY programs are normally intended to

prevent. A.R. at 6. He thus concluded that Wilson had failed to establish an IDEA violation and

dismissed the complaint with prejudice. Wilson then filed this action, seeking a reversal of the

Hearing Officer’s decision and an order for testing to determine what educational services A.W.

needs to compensate for the denial of the ESY program.

II. LEGAL STANDARD

A court reviewing an administrative decision under the IDEA “(i) shall receive the

records of the administrative proceedings; (ii) shall hear additional evidence at the request of a

party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as

the court determines is appropriate.”

(i)(2)(C). “When neither party has

requested that the district court hear additional evidence . . . ‘[t]he motion for summary judgment

is simply the procedural vehicle for asking the judge to decide the case on the basis of the

administrative record.’” Heather S. v. Wisconsin,

(7th Cir. 1997) (quoting

Hunger v. Leininger,

, 669 (7th Cir. 1994)); see also District of Columbia v. Doe,

(D.C. Cir. 2010). A court deciding a case in this posture must engage in a

more rigorous review of the decision below than is typical in administrative cases, see Reid ex

rel. Reid v. District of Columbia,

(D.C. Cir. 2005), but should nevertheless

accord the Hearing Officer’s decision “due weight.” Bd. of Educ. of Hendrick Hudson Central

Sch. Dist. v. Rowley,

(1982). Further, the party challenging the decision below

bears the burden of persuading the Court that it was erroneous. Doe,

.

4 III. ANALYSIS

The parties’ dispute boils down to two questions: did the Hearing Officer err in

concluding that, despite DCPS’s failure to provide transportation to the ESY program, Wilson

had failed to establish an IDEA violation because she had produced no evidence of academic

regression? If so, is A.W. entitled to compensatory education? The Court addresses each

question in turn.

A. Did the Hearing Officer Err in Finding No IDEA Violation?

Although the D.C. Circuit has not yet squarely addressed the question of what standard

governs failure-to-implement claims under the IDEA,1 the consensus approach to this question

among the federal courts that have addressed it has been to adopt the standard articulated by the

Fifth Circuit in Houston Independent School District v. Bobby R.,

(5th Cir.

2000). See Catalan ex rel. E.C. v. District of Columbia,

(D.D.C. 2007),

aff’d sub nom. E.C. v. District of Columbia, No. 07-7070 (D.C. Cir. Sept. 11, 2007). The Bobby

R. court wrote:

[A] party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEP’s, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit.

1 The D.C. Circuit has noted that, because the IDEA defines “free appropriate public education” to mean special educational services that are, inter alia, “provided in conformity with” a student’s IEP,

(9)(D), a “complete failure” to implement a student’s IEP is “undoubtedly” a denial of an appropriate education under the IDEA. Abney ex rel. Kantor v. District of Columbia,

, 1496 n.3 (D.C. Cir. 1988).

5 Bobby R.,

. Thus, “a court reviewing failure-to-implement claims under IDEA

must ascertain whether the aspects of the IEP that were not followed were ‘substantial or

significant,’ or, in other words, whether the deviations from the IEP’s stated requirements were

‘material.’” Catalan,

(quoting Bobby R.,

).

Here, the Hearing Officer determined that Wilson had “offered uncontroverted evidence

that DCPS failed to provide [A.W.] transportation to the first three weeks of ESY,” but that there

was “no evidence as to any educational harm that resulted from the deprivation of these

services.” A.R. at 6. In the absence of “proof of educational harm” flowing from the deprivation

of the ESY program, he concluded that Wilson had failed to establish an IDEA violation. A.R. at

6. The Hearing Officer did not address the “substantial or significant” standard or otherwise

articulate the standard he was applying.

Wilson argues that the Hearing Officer erred by requiring “proof of educational harm”

because the IDEA is violated whenever a school district fails to provide the services mandated by

a student’s IEP. The District responds that proof of “substantive educational harm” is required

because “[m]ere procedural violations” do not deny a student the education guaranteed by the

IDEA. Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mem.”) at 6. The District’s

response is unavailing.

The District’s observation that a student cannot prevail on a failure-to-implement claim

merely by pointing to “procedural” or de minimis IEP violation is accurate. That observation,

however, is not pertinent to the argument Wilson makes in support of her claim. Wilson does not

advocate for a per se rule under which any departure from a student’s IEP, no matter how slight,

constitutes a denial of education under the IDEA. Rather, Wilson correctly argues that the IDEA

6 is violated when a school district deviates materially from a student’s IEP. See Van Duyn ex rel.

Van Duyn v. Baker Sch. Dist. 5J,

(9th Cir. 2007) (“[A] material failure to

implement an IEP violates the IDEA. A material failure occurs when there is more than a minor

discrepancy between the services a school provides to a disabled child and the services required

by the child’s IEP.”); accord S.S. ex rel. Shank v. Howard Road Acad.,

(D.D.C. 2008); Catalan,

.

Moreover, evidence of the type required by the Hearing Officer — while often useful —

is not necessary to establish that a departure from an IEP constituted a material failure to

implement that IEP: “the materiality standard does not require that the child suffer demonstrable

educational harm in order to prevail” on a failure-to-implement claim. Van Duyn,

(emphasis added); cf. MM ex rel. DM v. Sch. Dist. of Greenville Cnty.,

, 537

n.17 (4th Cir. 2002) (rejecting the argument that parents must show actual developmental

regression before their child is entitled to ESY services under the IDEA). Rather, courts applying

the materiality standard have focused on the proportion of services mandated to those actually

provided, and the goal and import (as articulated in the IEP) of the specific service that was

withheld. See, e.g., Van Duyn,

; S.S., 585 F. Supp. 2d at 65–68; Mary McLeod

Bethune Day Acad. Pub. Charter Sch. v. Bland,

, 115–16 (D.D.C. 2008);

Catalan,

.

Because the Hearing Officer applied the wrong legal standard, his decision warrants little

deference. Cf. S.S.,

. Accordingly, the Court will determine whether, under

the correct standard, A.W. has been denied the education to which he is entitled under the IDEA.

See

(“Because the court’s review must be ‘independent,’ and based on a preponderance

7 of the evidence, . . . the court’s focus is not simply on whether the hearing officer erred, but

rather, more broadly, [on] whether the child involved is receiving the free appropriate public

education mandated in the IDEA.” (quoting Gellert v. D.C. Pub. Schs.,

(D.D.C. 2006))).

A.W.’s IEP stated that he required ESY services because his progress at Phillips had been

slowed by his difficulty adjusting to the new program and staff. A.R. at 112; see Hr’g Tr. 26

(test. of Judy Miller) (stating that ESY was required because A.W. had “just started making some

. . . progress”). The IEP also set out fifteen goals in four categories (emotional development,

academic ability, communication skills, and physical development) that A.W. would try to reach

during his ESY program. A.R. at 112. Thus, DCPS was required — both by the terms of A.W.’s

IEP and by federal regulations, see

(a) — to provide A.W. with the ESY

services prescribed by the IEP team. In a near-identical situation, the S.S. court had little trouble

concluding that the school’s complete failure to provide ESY services “constituted a material

failure to implement [S.S.’s] IEP.” S.S.,

.

The Court sees no basis to reach a different outcome here. The fact that A.W. apparently

matured and made academic progress during the following school year, see Hr’g Tr. at 29–30,

while fortunate, does not excuse DCPS’s failure to provide a service that A.W.’s IEP team felt

was “required” for his continued development.2 DCPS’s failure to transport A.W. to the ESY

program was neither a “procedural” IDEA violation, see Lesesne ex rel. B.F. v. District of

2 Indeed, the Court has no way of knowing how much more progress A.W. might have shown if he had attended the ESY program. Judy Miller, an educational program supervisor at Phillips who was familiar with A.W.’s progress, testified below that A.W. could have benefitted from the ESY program and that he was still performing below grade level. See Hr’g Tr. at 27.

8 Columbia,

(D.C. Cir. 2006) (collecting cases), nor a “minor discrepancy”

between the IEP as written and as implemented. See Van Duyn,

; Catalan,

(finding no IDEA violation where the student received services “in accordance

with his IEP” and the deviations that occurred were “excusable under the circumstances”).

Because DCPS almost entirely failed to provide a service that A.W.’s IEP team determined was

necessary for his educational development, it denied him the education that the law requires.3

B. Is Compensatory Education Warranted?

Compensatory education is, as the term suggests, educational service that is intended to

compensate a disabled student who has been denied the individualized education guaranteed by

the IDEA. See Reid ex rel. Reid v. District of Columbia,

(D.C. Cir. 2005).

The D.C. Circuit has explained that a court’s goal in awarding compensatory education should be

“to place disabled children in the same position they would have occupied but for the school

district’s violations of IDEA.”

Here, Wilson asks the Court to order DCPS to fund an assessment of how the ESY denial

impacted A.W.4 and to require DCPS to provide whatever services the assessment determines are

needed. Compl. at 5 (prayer for relief). The District argues that Wilson produced no evidence

below that could support an award of compensatory education. Def.’s Mem. at 8–9. Because he

found no IDEA violation, the Hearing Officer did not reach this issue.

3 The Court cannot accept Wilson’s contention that DCPS is responsible for depriving A.W. of the entire ESY program; Wilson’s decision not to send A.W. to the program during its fourth week, when DCPS was finally able to provide transportation, was — while apparently the result of understandable frustration — her own. 4 Specifically, Wilson seeks a “Lindamood Bell Assessment,” which appears to refer to a particular provider of educational services.

9 The Court concludes that the record lacks sufficient information for it to make an

informed decision as to the proper amount, if any, of compensatory education to which A.W. is

entitled.5 Contrary to the District’s assertion, however, the paucity of evidence on this question

does not warrant summary judgment in the District’s favor. Once a student has established a

denial of the education guaranteed by the IDEA, the Court or the hearing officer must undertake

“a fact-specific exercise of discretion” designed to identify those services that will compensate

the student for that denial. Reid,

; see Stanton ex rel. K.T. v. District of

Columbia,

(D.D.C. 2010); Phillips ex rel. T.P. v. District of Columbia,

(D.D.C. 2010). Where the record does not allow for that inquiry,

remand or additional fact-finding is necessary. See Reid,

(“[I]n light of the

absence of pertinent findings in the administrative record and given that both parties previously

filed cross-motions for summary judgment rather than exercising their right to ‘request’

consideration of additional evidence, the district court may determine that the ‘appropriate’ relief

is a remand to the hearing officer for further proceedings.”); Henry v. District of Columbia,

(D.D.C. Nov. 12, 2010); S.S., 585 F. Supp. 2d at 71–72. Accordingly, the

Court will remand this case to the Hearing Officer “to conduct the ‘fact-specific exercise of

discretion’ required by Reid, and to craft an award that ‘aim[s] to place [A.W.] in the same place

[he] would have occupied but for the school district’s violations of [the] IDEA.’” Henry,

(quoting Reid,

) (first, third and fourth alterations in original).

5 In particular, the record is devoid of any description of the particular assessment that Wilson requests, and fails to explain how or why that assessment will identify the amount and type of services that would “place [A.W.] in the same position [he] would have occupied but for the school district’s violations of IDEA.” Reid,

.

10 IV. CONCLUSION

For the foregoing reasons, Wilson’s motion for summary judgment must be granted and

the District’s motion for summary judgment must be denied. On remand, the Hearing Officer

must conduct the “fact-specific exercise of discretion” described in Reid, which will require

evidence showing the effect on A.W., if any, of the denial of the ESY services that were

prescribed by his IEP. See Reid,

.

Henry H. Kennedy, Jr. United States District Judge

11