UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

J.T.,

Plaintiff, Civil Action No. 19-989 (BAH)

v. Chief Judge Beryl A. Howell

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Plaintiff, J.T., brings this action against the District of Columbia under the Individuals

with Disabilities Act (“IDEA”),

et seq., the latest iteration in a long-running

series of administrative hearings and lawsuits aimed at securing a special education for her son

V.T. She now challenges three separate administrative determinations—two for the 2018–2019

school year and one for the 2019–2020 school year—dismissing her claims that the District of

Columbia Public Schools (“DCPS”) denied V.T. a free appropriate public education (“FAPE”).

She contends that, for the 2018–2019 school year, DCPS twice unilaterally determined which

school V.T. would attend without ensuring her participation as required by IDEA regulations

and, further, that the schools selected were substantively inappropriate because they were unable

to satisfy the requirements of V.T.’s Individualized Education Program (“IEP”), resulting in

denial of a FAPE for that school year. She further contends that DCPS failed to place V.T. in

any school for the 2019–2020 school year and in so doing, again, denied her son a FAPE.

Pending before the Court are the plaintiff’s motion for summary judgment, see Pl.’s Mot.

for Summ. J. (“Pl.’s Mot.”), ECF No. 33; see also Pl.’s Opp’n to Def.’s Cross-Mot. Summ. J. &

Reply in Supp. Pl.’s Mot. Summ. J. (“Pl.’s Opp’n”), ECF No. 38, and the defendant’s cross-

1 motion for summary judgment, see Def.’s Opp’n Pl.’s Mot. Summ. J. & Cross-Mot. Summ. J.

(“Def.’s Opp’n”), ECF No. 37; see also Def.’s Reply Pl.’s Opp’n Def.’s Cross-Mot. Summ. J.

(“Def.’s Reply”), ECF No. 40.1 For the reasons explained below, plaintiff’s motion is granted in

part and denied in part, and defendant’s cross-motion for summary judgment is granted in part

and denied in part. 2

I. BACKGROUND

V.T. is a student-resident of the District of Columbia eligible for special education under

the IDEA disability classification Autism Spectrum Disorder. See Admin. Record 1 (“AR1”) at

219–49, ECF No. 9-3.3 His disorder makes it difficult for him to remain attentive, communicate

with his classmates and teachers, and make progress in a general education curriculum.

. V.T. attended Kingsbury Day School (“Kingsbury”) for multiple years, but Kingsbury did

not have an intensive autism program available, which eventually necessitated V.T.’s departure

from the school.

.

A. Prior Challenges

In 2015, after realizing that Kingsbury could no longer provide the environment

necessary for V.T.’s education, plaintiff, his mother, requested an IEP from DCPS. V.T.

received the requested IEP, but only after plaintiff filed an administrative due process complaint

against the DCPS for its failure to issue one. See

. Following a due process hearing on

the issue, on October 5, 2015, a hearing officer ordered DCPS to perform evaluations of V.T.,

1 The memoranda filed in support of some of these motions are docketed twice. See, e.g., Pl’s Opp’n, ECF Nos. 38 and 39; Def.’s Opp’n, ECF Nos. 36 and 37. To simplify citation, only one of the duplicate memoranda will be referenced. 2 Plaintiff requested oral argument, see Pl.’s Opp’n at 1, but given the thorough briefing, a hearing is unnecessary. See LCvR 7(f) (authorizing oral hearings at “the discretion of the Court”). 3 The Administrative Record includes, inter alia, plaintiff’s due process complaints, administrative hearing filings and transcripts, final determinations by hearing officers, and discussion between parties regarding V.T.’s Individualized Education Programs and access to a free appropriate public education, and is docketed in two parts, cited as AR1, ECF Nos. 9–12, and AR2, ECF Nos. 28–30.

2 develop an IEP for him, find an appropriate school placement, and reimburse his parents for the

cost of his private education up to the time of the order and until V.T. was placed in an

appropriate school.

at 789–806. This was to be the first of several administrative challenges

brought by plaintiff against DCPS.

DCPS and V.T.’s parents convened and finalized his first IEP in February 2016. Plaintiff

was dissatisfied with the process, however, and filed another due process complaint on April 20,

2016, alleging that DCPS had denied her meaningful participation by refusing to discuss specific

school placements and “by refusing to discuss issues relating to the ‘manner’ of the specialized

instruction such as environment, student teacher ratio, and amount of 1:1 instruction.” See

. See generally

at 811–30. On July 22, 2016, the hearing officer issued a decision

favorable to plaintiff, ordering the creation of a new IEP with increased parental participation as

well as both retrospective and prospective compensation for V.T.’s private education.

.

In August 2016, the parties convened to create a new IEP at another meeting that was

evidently adversarial. See

(“Parent was brusque, if not rude, at points during… the

meeting”) (“DCPS staff approached the… meeting as though they were there only to answer

questions and provide information”). Following this meeting, on August 31, 2016, a new IEP

was finalized along the same lines as the previous iteration. See

at 836–37.

V.T.’s parents filed another due process complaint challenging the August 2016 IEP. On

April 3, 2017, another hearing officer found that DCPS had again denied V.T. FAPE by failing

to develop an appropriate IEP that fully accounted for V.T.’s special education needs.

at

448–55. The hearing officer ordered yet another IEP meeting as well as reimbursement for

V.T.’s private education for the rest of the school year.

.

3 Another IEP meeting was convened in April 2017 and resulted in a new IEP in May

2017. See J.T. v. Dist. of Columbia, No. 17-cv-1319 (BAH),

, at *2 (D.D.C.

Aug. 1, 2019), appeal docketed, No. 19-7136 (D.C. Cir.). V.T.’s parents again objected to its

appropriateness, however, and filed an administrative challenge. See

at *2–3. “While that

administrative complaint was pending, DCPS agreed to fund V.T.’s education at Kingsbury Day

School for the 2017–18 school year.”

. The hearing officer eventually ruled against

V.T.’s parents, deciding that the May 2017 IEP was appropriate. See

Plaintiff appealed that

determination to this Court, which dismissed the case as moot on the grounds that the parties had

agreed to yet another IEP in 2018, and plaintiff “ha[d] not sought retrospective relief for the year

that V.T. was educated pursuant to the 2017 IEP.”

at *4–6.4

B. The Challenges at Issue

In July 2018, following a collaborative meeting, the parents and DCPS created an IEP

acceptable to all parties. See AR1 at 219–49. The IEP, dated July 10, 2018, provided for a wide

range of specialized instruction and accommodations, including twenty-four hours per week of

specialized instruction, twelve hours per week of speech-language pathology, eight hours per

month of occupational therapy, four hours per month of behavioral support services, 120 minutes

per month of consultation divided among related services, a maximum classroom size of six

students, and several methods for avoiding audio overload.

. DCPS’s Monitoring

Specialist, who is responsible for ensuring that students’ placements satisfy the requirements of

their IEPs, informed plaintiff on August 1, 2018, via email, that she would be referring the final

IEP to three listed private schools, including Frost.

. In the same email, the Monitoring

4 This decision is currently on appeal to the D.C. Circuit. See J.T. v. Dist. of Columbia, No. 19-7319 (D.C. Cir.).

4 Specialist asked if plaintiff was interested in other schools as well, but plaintiff did not respond

to propose any other schools.

i. January 2019 (First) HOD on V.T.’s Placement at Frost

One of the schools to which V.T.’s July 2018 IEP was initially referred was Frost School-

Oakmont Primary Program (“Frost”).

Following review of DCPS’s referral, Frost sought to

observe V.T. to determine if the school could fulfill the terms of his IEP.

V.T. was no longer

enrolled at Kingsbury, however, and thus Frost was unable to observe him without him visiting

Frost.

at 8–9. Due to time constraints, Frost was unable to observe V.T. until he visited the

school over two meetings on September 6 and 12, 2018. Id at 9. During these observations,

V.T. attended art and math classes to determine whether the school fit his needs as set out in the

2018 IEP.

On September 12, 2018, following the visit, plaintiff emailed DCPS’s Monitoring

Specialist informing her that V.T. had been observed at Frost, thanking her for the referral, and

expressing no misgivings about Frost.

The Monitoring Specialist responded the next day

that she was pleased the visit went well, informing plaintiff that Frost had accepted V.T., and

offering bus transportation to Frost.

DCPS never received a response to its offer of

transportation.

Following plaintiff’s silence, on September 17, 2018, DCPS called plaintiff prior to

sending a Location of Services (“LOS”) letter.

5 In this telephone call, plaintiff informed

DCPS that she was dissatisfied with Frost and told the Monitoring Specialist to contact her

attorney, refusing to discuss any specifics.

Following this call, DCPS forwarded both

5 A LOS letter contains information about the school, either public or private, that DCPS determines can properly meet the needs of a child’s IEP. See SPECIAL EDUCATION PROGRAMS & RESOURCES GUIDE FOR FAMILIES, D.C. PUB. SCH. 19 (2020).

5 Frost’s acceptance letter and the LOS letter to plaintiff. Id.; see

(DCPS LOS letter

identifying Frost as V.T.’s location of service, based on a review of “evaluations, IEP, IEP

progress reports and educational records . . . [and] programming offered at the school,”

informing plaintiff of determination that the school “is able to implement [V.T.’s] Individualized

Education Program and provide him with the special education he needs,” and inviting plaintiff

to contact Frost with questions).

The following day, plaintiff’s counsel emailed the Monitoring Specialist, asserting that

Frost failed to meet the terms of V.T.’s IEP and that DCPS’s assignment was “procedurally

illegal in at least one highly relevant way,”

, without detailing the statutory or

regulatory basis for the alleged illegality. Plaintiff’s counsel and DCPS exchanged several

emails regarding plaintiff’s concerns with Frost, including its class size, students who were prone

to loud outbursts, and the school’s distance from V.T.’s home.

. On September 28,

2018, the Monitoring Specialist responded that DCPS had reached out to Frost, which in turn had

confirmed the school’s ability to fulfill the terms of V.T.’s IEP.

Despite this assurance, V.T.

never enrolled at Frost.

On October 12, 2018, plaintiff filed another due process complaint, alleging that V.T. had

been denied a FAPE because Frost did not satisfy the requirements of V.T.’s IEP and because the

school-selection process lacked parental input.

. Plaintiff sought a variety of relief

measures, including: (i) a finding that V.T. was denied FAPE; (ii) an order requesting DCPS to

fund V.T.’s home instruction until DCPS provided an appropriate school; (iii) an order for DCPS

to provide compensatory education or, in the alternative, fund an independent compensatory

6 evaluation to determine appropriate compensatory education;6 and (iv) any other just and

appropriate relief.

at 4–5.

Following a hearing, the hearing officer issued, on January 11, 2019, a hearing officer

determination (“First HOD”), concluding that DCPS had met its burden of persuasion on the

issue of whether Frost was an appropriate educational placement, citing testimony of Frost and

DCPS personnel that Frost was capable of satisfying the requirements of V.T.’s IEP and

“favorably not[ing] the[ir] expertise and exercise of judgment . . . in determining that [Frost]

would be suitable for [V.T.].”

. The hearing officer found that DCPS had not prevented

or disregarded parental input but rather had actively encouraged it, citing DCPS’s invitation for

input at the 2018 IEP meetings.

. Accordingly, the hearing officer dismissed all

plaintiff’s claims for relief with prejudice.

.

ii. March 2019 (Second) HOD on V.T.’s Placement at the Community School of Maryland

While the dispute over Frost was ongoing, DCPS sent plaintiff a letter informing her that

the Community School of Maryland (“CSM”) had been chosen as V.T.’s new LOS.

.

CSM contacted plaintiff on September 6, 2018 to schedule an interview, which plaintiff agreed

to and arranged.

. Plaintiff and V.T. visited CSM and, according to the CSM director,

had a positive reaction to the school. See

(“Director of Education believed that Parent had a

positive reaction to her visit at [CSM], with the only concern being whether [CSM] offered

diplomas or only certificates”). DCPS sent a LOS letter to plaintiff, stating that CMS had been

selected for V.T.’s placement. Id.7 Plaintiff was notified, on October 30, 2018, that she would

6 Compensatory education is an equitable form of reimbursement appropriate when a school district does not provide a FAPE, which “aims to put a student . . . in the position he would be in absent the FAPE denial” by “‘provid[ing] the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.’” B.D. v. Dist. of Columbia,

(D.C. Cir. 2016) (quoting Reid ex rel. Reid v. Dist. of Columbia,

(D.C. Cir. 2005)). 7 The substance of the CSM LOS letter was identical to that of the Frost CSM letter, see supra Part I.B.i.

7 need to contact the Office of the State Superintendent of Education (“OSSE”) to arrange

transportation, if necessary. Id. at 680. Plaintiff never contacted OSSE, however, and no

transportation was arranged. Id. V.T. never enrolled to attend CMS.

On December 20, 2018, plaintiff filed another due process complaint, again alleging that

V.T. had been denied FAPE because the placement at CMS was substantively inappropriate and

because the process of school selection had been devoid of parental input. Id. at 675. Plaintiff’s

request for relief was the same as in the Frost hearing, namely: (i) a finding that V.T. was denied

FAPE; (ii) an order requiring DCPS to fund V.T.’s home instruction and services until DCPS

provides an appropriate placement; (iii) an order requiring DCPS to provide Plaintiff all of

V.T.’s educational records; an order for DCPS to provide appropriate compensatory education

for any denial of FAPE or, in the alternative, fund a compensatory education evaluation in order

to determine appropriate compensatory education; and (iv) any other just and appropriate relief.

Id. at 677.

At the hearing, CSM’s Director of Education testified before the hearing officer that after

reviewing V.T.’s IEP, he had no concerns about CSM’s ability to provide V.T. an appropriate

special education. He testified that he viewed V.T. “as a good candidate for the program” at

CSM and “within the type of children that [CSM] deals with,” and that CSM “could meet

[V.T.]’s needs both behaviorally and academically.” Id. at 679–80. DCPS’s Monitoring

Specialist likewise testified that she believed that CSM could service the IEP. Id. at 680. On

March 21, 2019, the hearing officer issued his decision (“Second HOD”) concluding that DCPS

had met its burden of persuasion on educational placement, based on the testimony he heard that

CSM could fully implement V.T.’s IEP. See id. at 688. The hearing officer also found ample

opportunity for parental input, including the 2018 IEP meetings, the visit to CMS, and the

8 opportunity to email DCPS upon receiving the CMS LOS. Id. at 689. For those reasons,

plaintiff’s claims were dismissed with prejudice. Id. at 690.

iii. November 2019 (Third) HOD Regarding V.T.’s 2019–2020 FAPE

Following the due process hearings and determinations regarding V.T.’s Frost and CSM

placements, DCPS failed to assign V.T. to any school for the 2019–2020 school year, despite

efforts to locate alternative appropriate schools. See AR2 at 8, ECF No. 28-1. On September 6,

2019, V.T.’s parents filed a due process complaint regarding DCPS’s failure to provide a school

placement. Id. at 20. Plaintiff requested, among other relief, funding for home instruction until

DCPS provided an appropriate school. Id. at 21.

While this due process complaint was pending, DCPS issued a new IEP for V.T. that

allowed up to nine students in his classroom, three more than in his two preceding IEPs. Id. at

823. V.T.’s parents filed another due process complaint, this time regarding the change to V.T.’s

IEP, which triggered IDEA “stay-put” rights maintaining the applicability of the 2018 IEP. See

id. at 11;

(j).

On November 20, 2019, the hearing officer issued his decision (“Third HOD”) on

DCPS’s failure to assign V.T. to a school for the 2019-2020 school year.

at 3–13. The

hearing officer found that, although DCPS had made consistent efforts to assign V.T. to an

appropriate school, it did not finalize V.T.’s IEP prior to the 2019–2020 school year and did not

offer him an appropriate educational placement, which amounted to denying him a FAPE.

. The hearing officer determined, however, that “[i]n light of the fact that DCPS has now

developed an updated IEP for [V.T.] and is currently making referrals to non-public special

education separate schools for [V.T.] to attend in SY 2019-20,” an award prospective relief was

9 inappropriate.

. The hearing officer did award compensatory education for V.T.’s

missed school up to the time of the hearing decision.

Shortly following this determination, plaintiff moved this Court for a preliminary

injunction, seeking an order requiring the District to fund independent instruction and services

until DCPS had placed V.T. in an appropriate school. See Pl.’s Mot. for Prelim. Inj. at 2, ECF

No. 16. That motion was denied on the grounds that the hearing officer acted within his broad

discretion in declining to award the prospective relief that plaintiff sought through her request for

a preliminary injunction.

Plaintiff now seeks review, via a motion for summary judgment, of the January 11, 2019

First HOD, the March 21, 2019 Second HOD, and the November 20, 2019 Third HOD. She

seeks (1) a declaratory judgment that V.T. was denied FAPE for the 2018–19 school year, (2)

market-rate funding for V.T.’s instruction and services to be provided at home, until DCPS

provides V.T. an appropriate school placement; (3) an order compelling DCPS to fund an

independent compensatory education evaluation for the 2019–2020 school year; (4) reasonable

attorney’s fees and costs; and (5) any other relief the Court deems appropriate. Amend. Compl.

¶ 1, ECF No. 15. The briefing on the parties’ cross motions for summary judgment was

completed on June 26, 2020, and this matter is now ripe for resolution.

II. LEGAL STANDARD

The IDEA guarantees “that all children with disabilities have available to them a free

appropriate public education [(“FAPE”)] that emphasizes special education and related services

designed to meet their unique needs.”

(d)(1)(A). Among the “various

procedural safeguards” provided in the IDEA to “guarantee parents both an opportunity for

meaningful input into all decisions affecting their child’s education and the right to seek review

10 of any decisions they think inappropriate,” Dist. of Columbia v. Doe,

(D.C.

Cir. 2010) (quoting Honig v. Doe,

, 311–12 (1988)), is the right to a due process

hearing held before a hearing officer, see

(c). Any party aggrieved by a

decision of a hearing officer under the IDEA may appeal the findings and decision to any state

court or a United States district court.

(i)(2).

The party challenging an administrative decision has the burden of proving deficiencies

in the administrative decision by a preponderance of the evidence.

(i)(2)(C)(iii). When evaluating an appeal of an administrative decision, a court “(i) shall

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

request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant

such relief as the court determines is appropriate.”

(i)(2)(C). The court must

resolve factual disputes based upon its own de novo review of the record and evaluation of the

preponderance of the evidence, giving “due weight” to the findings of the IDEA hearing officer,

depending upon the thoroughness and reasonableness of the administrative proceedings. See Bd.

of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,

(1982); Doe,

.

III. DISCUSSION

Plaintiff argues that V.T. has been denied a FAPE, in violation of the IDEA, for the

2018–2019 school year, for two separate reasons: first, because plaintiff was excluded from the

school-selection process in violation of the Act’s procedural protections; and second, because the

two schools DCPS selected for V.T. did not comply with the requirements of his IEP. The

District, for its part, contends that plaintiff has been afforded as much participation in V.T.’s

education as the IDEA requires and, further, that the two schools selected for V.T. were capable

11 of implementing his IEP. Plaintiff separately argues that V.T. is entitled to compensatory

education for the first five weeks of the 2018–2019 school year and the entirety of the 2019–

2020 school year, during which periods DCPS provided no proposed placement. These

contentions are discussed in turn.

A. DCPS’s Alleged Failure to Include Plaintiff in the Decisionmaking Process Regarding V.T.’s Placements for the 2018–2019 School Year Did Not Deny V.T. a FAPE

Plaintiff first contends that she was improperly excluded from DCPS’s decision to place

V.T. at Frost and CSM. The IDEA requires that “[e]ach local educational agency

[(“LEA”)] . . . shall ensure that the parents of each child with a disability are members of any

group that makes decisions on the educational placement on their child.”

(e).

More specifically, implementing regulations developed by the Department of Education require

that “[b]efore a public agency places a child with a disability in, or refers a child to, a private

school or facility, the agency must initiate and conduct a meeting to develop an IEP for the

child.”

(a)(1). “The agency must ensure that a representative of the private

school or facility attends the meeting.”

§ 300.325(a)(2). “If the representative cannot attend,

the agency must use other methods to ensure participation by the private school or facility,

including individual or conference telephone calls.” Id. Thus, before placing V.T. at either of

the private schools, Frost or CSM, DCPS was required by hold a meeting about V.T.’s IEP that

included the parents and a representative of the school or “use other methods” to ensure

participation of these interested parties.

DCPS did not convene such a meeting attended by both plaintiff and representatives of

the Frost or CSM. See AR1 at 1382 (testimony of DCPS Monitoring Specialist acknowledging

that no IEP meeting was held with attendance by both parents and Frost representative to discuss

12 the Frost placement); id. at 1522 (testimony of DCPS Monitoring Specialist acknowledging that

no IEP meeting was held with attendance by both parents and CSM representative to discuss the

CSM placement). Nor were school placements seriously discussed with plaintiff, irrespective of

whether a school representative was present. Although DCPS alluded in passing to Frost during

the July 2018 IEP meeting, no Frost representative was present. CSM was never brought up at

any meeting and likewise no CSM representative was present at any meeting.

The efforts undertaken by DCPS to find an appropriate placement for V.T. were far from

trivial given the requirements of his IEP. Nonetheless, these efforts were not in full compliance

with regulatory requirements. See Dist. of Columbia v. Kirksey-Harrington, No. 14-cv-180

(BAH/AK),

, at *8–9 (D.D.C. Jan. 14, 2015), report and recommendation

adopted,

(D.D.C. Feb. 4, 2015) (finding student’s placement at private school

without discussing that school as a possible placement with parent, without a representative from

the school present at the IEP meeting, and without explanation to the student’s parent of the way

in which the school would implement the IEP was an IDEA violation and a denial of FAPE);

Eley v. District of Columbia (“Eley I”), No. 11-cv-309 (BAH/JMF),

, at *9

(D.D.C. Aug. 24, 2012) (concluding that an LEA’s unilateral assignment of a student to a school

without convening a meeting including the parents and school representative “violated an

important procedural safeguard and seriously impaired the right of the parent to participate in the

process” and thereby denied the student a FAPE); see also Werner v. Clarkstown Cent. Sch.

Dist.,

, 657–58 (S.D.N.Y. 2005) (ruling that the absence of a school

representative from the IEP meeting violated the procedural protections of the IDEA and denied

the student a FAPE, because the student’s “mother could not ask questions or raise concerns

about that proposed placement with a knowledgeable individual”).

13 The District neither contests nor seeks to excuse its failure to comply with

(a), but instead responds with two arguments.8 First, it contends that the IDEA and its

implementing regulations ensure that “[p]arents have the right to participate in the development

of their child’s educational program, including the design of the IEP and the determination of the

type of placement; but they do not have the right to determine ‘school site selection.’” Def.’s

Mem. at 22 (quoting C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ.,

(2d Cir. 2014)).

The District primarily relies for this proposition on Lunceford v. District of Columbia, in which

the D.C. Circuit adopted the interpretation of “[t]he leading [Second Circuit] precedent on what

type of change constitutes a change in educational placement.”

, 1582 (D.C. Cir.

1984). According to that Second Circuit case, “a change in educational placement occurs only

when there is a change in the ‘general educational program in which a child . . . is enrolled,

rather than mere variations in the program itself.” Id. (omission in original) (quoting Concerned

Parents v. N.Y.C. Bd. of Educ.,

, 754 (2d Cir. 1980)). As such, the District

contends, DCPS’s decisions to place V.T. at Frost and then CSM were not placements within the

meaning of the IDEA, and so the statute did not mandate parental participation in the decisions

to have V.T. attend those schools.

This argument of the District’s is unavailing. First, the District’s interpretation of

Lunceford as meaning that “educational placement” cannot refer to the physical location at

which a student receives educational services has previously been rejected by this Court.

Lunceford involved a student who lived in a private hospital where he was also provided

educational services. Lunceford, 745 F.2d at 1579. The hospital informed the student that he

8 In fact, the District barely mentions with

(a) either in opposing plaintiff’s motion for summary judgment or in support of its own cross-motion for summary judgment. See generally Def.’s Opp’n; Def.’s Reply.

14 was being discharged and recommended that he continue receiving the same educational services

on an outpatient basis.

As such, “[t]he only change at issue in Lunceford was the student’s

residential setting, not his IEP or any other aspect of his educational setting.” Eley v. Dist. of

Columbia (“Eley II”),

(D.D.C. 2014). Accordingly, this Court in Eley II

reasoned that the D.C. Circuit’s “focus on the ultimate ‘change’ under consideration in

Lunceford—namely, the student’s residence—counsels against reading the case as supporting the

contention that the phrase ‘educational placement’ may never include a location component,”

at 11–12, and noted that “many of the D.C. Circuit cases interpreting the IDEA since Lunceford

have used the term ‘placement’ interchangeably with the term ‘location,’”

; see also,

e.g., McKenzie v. Smith,

(D.C. Cir. 1985) (using “placement” to refer to the

student’s “day program in a private special education facility”). This Court then held, “[a]bsent

binding precedent from the D.C. Circuit,” that “the term ‘educational placement’ in the IDEA . . .

can include both the physical location of educational services and the services required by the

student’s IEP.”

at 16–17.

Lunceford thus does not compel the conclusion that “educational placement” never refers

to the physical location of educational services. Here, the plain language of the regulation at

issue,

, makes clear that “placement” does refer to such a physical location.

The regulation mandates that “before it “places a child with a disability in . . . a private school or

facility,” an LEA must “initiate and conduct” an IEP meeting, and that the LEA “must ensure

that a representative of the private school or facility attends the meeting.”

(a)(1) (emphasis added). The requirement that a representative of the school at which

a student will be placed attend the IEP meeting would be incoherent if “place[]” as used in the

regulation did not refer to placement at a specific physical school. Other provisions of the IDEA

15 and its implementing regulations similarly use “place” in a manner that signifies placement at a

physical site, repeatedly referring to “plac[ing]” and “placement” of children in private schools.

For example, a “child’s placement” must be “as close as possible to the child’s home,”

(b)(3), which is unintelligible unless “placement” refers to the location at which the

student receives educational services. See also, e.g.,

(d)(2)(H)(i);

(a); Pl.’s Mem. at 17 n.6.

Furthermore, this interpretation comports with this Court’s interpretation of the term

“educational placement” in a closely related IDEA provision. In Eley II, this Court considered

whether DCPS’s decision to move a student to a different school qualified as a change in the

student’s “then-current educational placement” triggering the student’s stay-put rights under

(j). See 47 F. Supp. 3d at 8–9. The parties proposed differing interpretations of

“educational placement,” with plaintiff contending that it “includes an actual, physical school”

and the school district contending that it referred only to the student’s IEP.

(quoting Pl.’s

Reply Re: “Stay-Put” Prelm. Inj. at 9). This Court explained that the “plain language of the term

‘educational placement’ certainly does not exclude reference to a physical location,” and further

reasoned that “elsewhere in § 1415, the context of the word ‘placement’ would lead to an absurd

result if it were not meant to refer to a particular location.” Id. at 9–10. The same is true here; as

explained above, “place” as used in the regulation at issue clearly refers to placement at a

specific physical school. Accordingly, the decision to have V.T. attend Frost, and then CSM,

were educational placements to which the procedural protections of the IDEA, including

(a), apply.

DCPS’s second response is that even if the determination of the specific school V.T.

would attend is a “placement” within the meaning of the IDEA, no procedural violation occurred

16 because plaintiff participated in the selection process to the extent required by law. Def.’s Mem.

at 24–28. Echoing the first two HODs, DCPS contends that because plaintiff participated “in a

collaborative manner” in the July 2018 IEP meeting, she was entitled to no further participation.

. The District further notes that plaintiff was “provided information about both schools”

and “invited to visit and did visit each school, and spent time in each classroom with the

opportunity to ask questions” of school employees.

. What plaintiff really seeks, in

the District’s view, is not parental participation but rather “a veto power over any proposal or

determination advanced by the [school district] regarding a change in placement.”

(alteration in original) (quoting Doe ex rel. Gonzales v. Maher,

(9th Cir.

1986)); see also

at 25–27. 9

Whether plaintiff was denied a procedural protection of the IDEA—and she was—is a

separate issue from whether that denial in turn constituted a denial of a FAPE to V.T. A

procedural violation of the IDEA is not a per se harm leading inexorably to a finding of denial of

a FAPE, as plaintiff would have it. Rather, “an IDEA claim is viable only if those procedural

violations affected the student’s substantive rights.” Lesesne ex rel. B.F. v. Dist. of Columbia,

(D.C. Cir. 2006) (emphasis in original). Thus, “[i]n matters alleging a

procedural violation,” a student has been denied a FAPE “only if the procedural inadequacies

impeded the child’s right to a free appropriate public education; significantly impeded the

parent’s opportunity to participate in the decisionmaking process regarding the provision of a

free appropriate public education to the parent’s child; or caused a deprivation of educational

9 Although the District correctly urges that V.T. has not been denied a FAPE because plaintiff has been afforded ample opportunity for participation, its characterization that plaintiff demands a “veto power” over any proposed placement for V.T, Def.’s Mem. at 26, is incorrect. The IDEA and its implementing regulations do not require, and plaintiff does not contend, that plaintiff is entitled to unilaterally determine which school V.T. will attend or unilaterally reject a proposed placement that satisfies the conditions of V.T.’s IEP. Plaintiff’s contention is only that she has been denied a procedural protection that the Act guarantees her, and that the denial amounts to a serious deprivation of her participation rights.

17 benefit.”

(f)(3)(E)(ii) ; see also

(a)(2) (same); Lesesne,

(“[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.” (alteration in

original) (quoting C.M. v. Bd. of Educ.,

(3d Cir. 2005) (per curiam))).

For DCPS to have denied V.T. a FAPE, therefore, plaintiff must establish by a preponderance of

the evidence that the procedural violations resulted in a loss of educational opportunity or

“seriously deprive[d]” plaintiff of her IDEA participation rights,

Here, although the

procedural violation had some impact on plaintiff’s ability to participate in the formulation of

V.T.’s education, by abridging her ability to understand how Frost and CSM would specifically

be able to implement V.T.’s IEP, this was not a serious deprivation, in light of the many

opportunities plaintiff had for participation.

First, plaintiff had substantial opportunity to participate—and did participate—in the July

2018 IEP meeting. See Paolella ex rel. Paolella v. Dist. of Columbia,

(D.C.

Cir. 2006) (determining that parental involvement in the IEP-development process indicated

meaningful participation such that there was no denial of a FAPE); see also, e.g., Cooper v. Dist.

of Columbia,

(D.D.C. 2014) (finding that a procedural violation of the

IDEA did not amount to denial of a FAPE because plaintiff had otherwise had “substantial

input” at all stages of her child’s IEP development and school placement). The notes of the July

2018 IEP meeting reflect that plaintiff participated meaningfully in the development of the IEP,

with DCPS representatives asking her questions about V.T.’s ability to perform various school

tasks and plaintiff explaining the specific types of educational and therapeutic activities and

support she wanted V.T. to receive. See AR1 at 355–65. For instance, the notes thoroughly

document the participants’ discussions on such various topics as reading, writing, social and

18 emotional skills, speech services, occupational therapy, and classroom accommodations.

at

358–62. Furthermore, schools capable of implementing V.T.’s IEP were briefly discussed at the

IEP meeting, and the meeting notes include no indication that plaintiff objected to any of the four

proposed schools. See Def.’s Mem. at 38. To be sure, the notes indicate that schools capable of

implementing the IEP under development were apparently discussed, if only briefly, and reveal

that the focus of the meeting was primarily discussion of V.T.’s educational and therapeutic

abilities and needs and the development of an appropriate IEP. See AR1 at 355–65. The fact

that plaintiff was meaningfully involved in the formulation of V.T.’s IEP does not, of course,

necessarily mean that she was also meaningfully involved in the determination of V.T.’s

placement. That the topic of placement was broached during the meeting, however, indicates

that plaintiff’s participation on school selection was both solicited and welcome.

Second, plaintiff enjoyed significant participation in the form of her visits to Frost and

CSM. The school visits were obviously helpful in giving plaintiff firsthand exposure to the

educational environments in which DCPS proposed to place V.T. and ask questions about the

schools, which opportunity she took advantage of, see, e.g., id. at 679 (noting that plaintiff asked

the CSM Director of Education whether CSM offered diplomas during her school visit).

Observing the particular classrooms into which V.T. would be placed gave plaintiff information

that formed the basis for her later concerns about whether Frost and CSM would be able to

adequately implement V.T.’s IEP. See, e.g., AR1 at 1391 (testimony of V.T., based on her visit

to Frost, that the Frost classroom was too noisy for V.T.); see also infra Part III.B (describing

plaintiff’s testimony regarding her concerns about whether Frost and CSM complied with the

requirements of V.T.’s IEP).

19 This is not to say that the regulatory violation that occurred here had no effect on

plaintiff’s ability to participate. Although she was substantially involved in the 2018 IEP

meeting, and school selection was briefly discussed, including mention of Frost, there appears

not to have been serious discussion on the matter and CSM was never even mentioned. Further,

although plaintiff visited both Frost and CSM, and the hearing officer later heard testimony that

each school would have been able to implement V.T.’s IEP, plaintiff received no explicit

explanation of how either school would be able to implement the specific requirements of the

IEP. The meeting mandated by

(a) would have presented such an

opportunity for plaintiff to receive such an explanation and to voice her substantive concerns

about each school before DCPS formally placed V.T. there. Although the lack of such a meeting

affected plaintiff’s ability to participate, given her close, ongoing involvement in the process of

developing the IEP and identifying a specific school placement, DCPS’s failure to convene the

meeting required by

(a) was not a sufficiently serious deprivation of

plaintiff’s participation rights under the IDEA, see Lesesne,

, to constitute denial

of a FAPE to V.T.

Further supporting this conclusion is the language of

(a), which

provides that if the school representative is unable to attend the required meeting, the LEA “must

use other methods to ensure participation by the private school or facility, including individual or

telephone conference calls.”

(a)(2). This provision indicates that the LEA

has some amount of flexibility in how, precisely, the school representative participates in the IEP

meeting to explain to a parent how the requirements of the IEP will be met. This allowance that

the regulation may be satisfied in a range of ways, and the space it creates for the LEA to

exercise some discretion, suggests that a violation of this regulation is not so serious as to

20 necessarily constitute a serious deprivation of a parent’s IDEA participation rights and thus a

denial of a FAPE to the student.

Other courts have likewise hesitated to rule that a violation of

(a),

standing alone, is a procedural violation serious enough to support a determination that a student

has been denied a FAPE. For instance, in E.M. v. Poway Unified School District, the district

court ruled that the LEA had violated the procedural protections of the IDEA by failing to

adequately explain a proposed placement, including by failing to convene the meeting required

by

(a). No. 19-cv-689,

, at *14–15 (S.D. Cal. Jan. 15,

2020). In ruling that the student had been denied a FAPE, the court noted the procedural

violation but relied more heavily on the fact that the LEA had provided plaintiff with no

“information regarding the classroom [E.M.] would be placed in or the curriculum that would be

used.”

(alteration in original) (quoting Doc. No. 27 at 29). Plaintiff here, having

visited both Frost and CSM, does not find herself in the same position; the court in E.M.

specifically observed, in fact, that the LEA had failed to arrange for the parents to visit the

proposed school. Id.; see also Werner,

(ruling that student was denied a

FAPE when LEA not only failed to hold meeting with school representative but also failed to

ensure that a school representative “contacted [student’s] parents either before or after the

meeting”).

Similarly, in A.V. ex rel. Vaz Antunes v. Lemon Grove School District, the district court

acknowledged that

had been violated but held this did not amount to a

serious infringement of parental participation, and thus no denial of a FAPE occurred, because of

“substantial evidence in the record of an interactive and dynamic process between the parents

and the various IEP team members,” including a visit by the parents to the school. No. 3:16-cv-

21 803-CAB-(BLM),

, at *13 (S.D. Cal. Feb. 24, 2017) (quoting R.A. v. West

Contra Costa Unified Sch. Dist.,

, at *19 (N.D. Cal. Aug. 17, 2015)).

Likewise, in R.A. v. West Contra Costa Unified School District, the district court appears to have

found a

(a) violation but declined to find a denial of a FAPE because the

violation did not seriously infringe on the parents’ participation, citing the fact that the district

organized for the parents to visit the school and meet with school representatives—just as

plaintiff did here—and that the parents “had the opportunity to meaningfully participate in the

IEP process.”

, at *19.

Plaintiff’s reliance on cases in which a procedural defect was found to amount to a denial

of a FAPE is misplaced. Those cases involved parents largely excluded from the

IEP-development and school-placement processes, making the repercussions from the procedural

violation far more serious than the technical violation that occurred here. See Eley I,

, at *9 (finding denial of a FAPE when the parent was completely excluded from the

IEP meeting); Kirksey-Harrington,

, at *8–9 (finding denial of a FAPE when

DCPS placed student at a private school without coordinating a visit and without attempting to

address concerns about the placement explicitly raised by parent); Werner, 353 F. Supp. 2d at

659 (finding denial of a FAPE when parent was provided no information about a proposed

placement and LEA never arranged a school visit).

In sum, a violation of

(a) has been found to contribute to denial of a

FAPE only when accompanied by other significant shortcomings in ensuring parental

involvement in development of the student’s IEP and selection of his or her specific school

placement. Here, although DCPS failed to comply with the letter of the regulation, DCPS

otherwise afforded plaintiff ample opportunity to participate; thus, notwithstanding the

22 regulatory violation, the hearing officer correctly determined that the procedural violation did not

rise to the level of a serious deprivation of plaintiff’s IDEA participation rights. See AR1 at 17–

19, 688–90.

DCPS, on the whole, acted diligently and conscientiously in attempting to place V.T. for

the 2018–2019 school year at a school that was satisfactory to plaintiff and capable of servicing

V.T.’s IEP, and actively involved plaintiff in that process. The significant opportunities that

plaintiff has had to shape V.T.’s education mean that DCPS’s failure to hold the meeting

required by

(a), though it did have some effect on plaintiff’s ability to

participate in shaping her son’s education, did not deny V.T. a FAPE.

At the same time, some caution to DCPS is warranted. Meticulous compliance with all

the procedural requirements of the IDEA fosters parental participation by encouraging timely

objections to a student’s proposed IEP or school placement and prompt resolution of those

objections. Indeed, had the required meeting been convened here, the parties may well have

been able to address productively the substantive objections plaintiff had to the Frost and CSM

placements, potentially obviating this litigation. The record indicates that DCPS’s policy and

standard operating procedure is not to convene IEP team meetings including a school

representative prior to placing a student in a private school, as

(a) clearly

requires. DCPS should undertake careful review of that policy to determine if it regularly

infringes on parents’ participation rights under the IDEA. Though it did not do so here, in other

contexts a violation of

(a) may well amount to a denial of a FAPE.

B. Plaintiff Has Failed to Show That Frost and CSM Could Not Implement V.T.’s IEP for the 2018–2019 School Year

Plaintiff next contends that DCPS denied V.T. a FAPE because the Frost and CSM

placements did not comply with the requirements of his IEP, and that the hearing officer erred in

23 ruling that DCPS had proven that each placement was appropriate for V.T. Pl.’s Mem. at 21.

“The IDEA requires school districts to offer placement in a school and in programming that can

fulfill the requirements set forth in the student’s IEP.” Middleton v. Dist. of Columbia,

(D.D.C. 2018). Importantly, in reviewing a HOD, the courts are not “to

substitute their own notions of sound educational policy for those of the school authorities which

they review.” Rowley,

. “[D]eference [to the adequacy of an IEP] is based on the

application of expertise and the exercise of judgment by school authorities.” Endrew F. ex rel.

Joseph F. v. Douglas Cty. Sch. Dist.,

, 1001 (2017). As such, “[c]ourts sitting on

an [IDEA] appeal do not have unfettered review but ‘must . . . give ‘due weight’ to the

administrative proceedings and afford some deference to the expertise of the hearing officer and

school officials responsible for the child’s education.” Gill v. Dist. of Columbia,

, 108–09 (D.D.C. 2010) (quoting Lyons v. Smith,

(D.D.C. 1993)).

Furthermore, the hearing officer is best positioned to make credibility judgments as to testifying

witnesses and resolve factual disputes that amount to inconsistent testimony. Cf., e.g., United

States v. Vega,

(D.C. Cir. 2016) (“[T]he ‘district court’s credibility

determinations are entitled to the greatest deference from this court on appeal.’” (quoting Carter

v. Bennett,

(D.C. Cir. 1988))).

Plaintiff identifies three ways in which both Frost and CSM were inadequate placements

pursuant to the V.T.’s IEP, asserting that: transporting V.T. to those schools was not feasible, the

school’s classrooms had too many students, and, relatedly, the classrooms were too noisy. Pl.’s

Mem. at 21–22. These three aspects of the Frost and CSM placements are examined separately.

24 i. Transportation

At the hearings underlying the First and Second HODs, plaintiff testified that V.T. would

be unable to attend either Frost or CSM because each was too far from her home and because he

could not tolerate the long bus ride to and from school. AR1 at 16, 681–82. She explained that

for V.T. to commute to both Frost and CSM requires a one-hour car trip each way, including the

breaks that he must take en route because of the distress V.T. suffers as a result of being in the

car for an extended time period. See id. at 686; id. at 1386 (testimony of V.T.’s mother that

commuting to Frost takes between 30 minutes and one hour in the morning and between 45

minutes and one hour in the afternoon, and that “[l]ong trips for [V.T.] are very difficult. . . .

[H]e cannot stay in place for a long time, so I have to stop . . . .”); id. at 1584 (testimony of

V.T.’s mother that commuting to CSM takes between one hour and five minutes and one hour

and fifteen minutes each way). As plaintiff explained, the difficulty of the morning commute, in

particular, renders V.T. too upset to participate in school once he arrives. Id. at 1586–87.

These objections to the Frost and CSM placements are concerning but distance traveled

to school was not discussed at the IEP meeting, nor included or referenced in the IEP. Rather,

the IEP allows for “special education transportation on a DOT vehicle,” without requirements

related to the school’s distance from plaintiff’s home. Id. at 678. Since the IEP does not require

that V.T.’s placement be within a certain distance of his home, DCPS has not denied him a

FAPE by failing to place him at a close-in school. See, e.g., Petties v. Dist. of Columbia,

(D.D.C. 2002) (“Once the IEP is developed, the school system must provide

an appropriate placement that meets those needs . . . .”). Rather, the appropriate course of action

would be to update V.T.’s IEP to include these transportation requirements, as the second HOD

explained. AR1 at 686. Plaintiff objects that the hearing officer erred by concluding in the

25 second HOD that the CSM placement was appropriate based on “[t]he possibility that special

transportation needs ‘could’ theoretically be added to V.T.’s IEP,” Pl.’s Mem. at 25, but DCPS is

not to be faulted for failing to satisfy conditions that are not memorialized in the IEP.

Furthermore, as explained in the First HOD, plaintiff’s testimony during the Frost hearing

indicated that another solution to the transportation problem was for plaintiff to drive V.T. to

school and to delay his start time each morning, so as to allow him time to arrive at school,

recover from the commute, and be prepared to participate in educational services. See AR1 at

16. Plaintiff testified that she would be open to this plan, as long as she otherwise was satisfied

with the school.

at 1413–15.10 This “ready solution to a serious problem,” id. at 16, further

supports the hearing officer’s determinations that both Frost and CSM could implement V.T.’s

IEP notwithstanding plaintiff’s transportation-based objections.

ii. Classroom noise

Plaintiff’s second concern with the Frost and CSM placements was classroom noise.

V.T.’s IEP provides “steps to assist in decreasing noise: (a) minimal risk for instruction and

independent work, (b) use of a rug to decrease noise from tapping/walking, (c) adults speaking in

low, calm tone to V.T., and (d) noise cancelling headphones for use while V.T. works on

independent tasks.” AR1. at 678.

At the hearing on the Frost placement, plaintiff testified that V.T. had been overwhelmed

during his visit to Frost because other children in the classroom were non-verbal and therefore

10 Plaintiff objects that this testimony should be “dismiss[ed] from consideration” because it arose from an exchange initiated by the hearing officer “ask[ing] [plaintiff] what she was ‘willing’ to do.” Pl.’s Mem. at 24. The hearing officer asked plaintiff if she would be amenable to this arrangement, over her counsel’s objection that “the question posed was not a fact question but a demand that plaintiff take a position . . . without the benefit of consulting counsel.” Id. Plaintiff argues this point only cursorily, has provided no argument on whether the hearing officer committed an error of law or abused his discretion in denying plaintiff’s counsel’s objection, and offers no analysis other than the bald assertion that “the Hearing Officer blatantly denied plaintiff her IDEA right to counsel.” Id.

26 communicated by noise, including screaming. Id. at 1391–92 (testifying that “[t]he noise was

quite overwhelming for [V.T.]” and that it bothered him “very much”). She further testified that

there were no “quiet areas” and that the classroom did not have “minimal noise and distraction”

as required by V.T.’s IEP. Id. at 1394. A Frost teacher offered V.T. noise-cancelling

headphones, however, which are included in his IEP as an appropriate means of ensuring a quiet

classroom for V.T. Id. at 1391–92. The hearing officer, after noting that school transitions are

difficult for any student, ruled that “a visit to a new classroom in which [V.T.] encountered

challenges does not mean the school was automatically inappropriate,” especially in light of the

opinion of Frost and DCPS representatives that the school was capable of servicing V.T.’s IEP

and the fact that he would not have been accepted there had the school not believed it was so

capable. Id. at 16–17.

At the CSM hearing, plaintiff testified that most students in the classroom were nonverbal

and could communicate only by making noise. Id. at 681. The Director of Education, in

contrast, testified “credibly” in the hearing officer’s view that “most of the children in the class

for [V.T.] were very verbal.” Id. The DCPS Monitoring Specialist confirmed that CSM could

satisfy the noise requirements of V.T.’s IEP, id. at 1659, 1663, and, on the basis of this

testimony, the hearing officer determined that CSM was capable of implementing V.T.’s IEP as

to noise requirements. Id. at 681.

Both of these determinations by the hearing officer, and the testimony of DCPS and

school representatives underlying them, are entitled to considerable deference. See Endrew F.,

137 S. Ct. at 1001; Rowley,

. As to the First HOD, plaintiff quibbles that the

availability of noise-cancelling headphones at Frost “is distinct from the requirement of quiet

generally.” Pl.’s Mem. at 27. This is too thin a reed, however, to second-guess the expertise-

27 informed views of the hearing officer, the school representatives, and the DCPS representatives

that Frost and CSM would be capable of servicing V.T.’s IEP. As to the Second HOD, plaintiff

speculates that the hearing officer impermissibly based his opinion about noise at CMS on

statements made by a DCPS employee whom plaintiff never had the opportunity to cross-

examine. See

at 27–28. The essence of this objection appears to be that the Monitoring

Specialist who testified that CMS could implement V.T.’s IEP also testified that she had never

been to CSM; so, plaintiff infers, her testimony must have been based on information provided

her by another DCPS employee whom plaintiff did not cross-examine, in violation of the IDEA,

see

(h)(2). This objection too is unpersuasive. The Monitoring Specialist has

expertise as to the private schools into which DCPS places students, and the courts have been

specifically directed to, and do, rely on and defer to such expertise. See Rowley,

;

Gill,

. That deference would be disserved if an LEA in an IDEA

administrative hearing were required to put into the record every basis for its representatives’

knowledge and expertise.

iii. Classroom size

Plaintiff’s final substantive objection to the Frost and CSM placements is that neither

could satisfy the requirement of V.T.’s IEP that his classroom should have no more than six

children, including himself. Pl.’s Mem. at 28; see AR1 at 678. At the due process hearing on

Frost, plaintiff testified that seven students had been in the classroom during her visit, not

including V.T.

at 1389–90. DCPS’s monitoring specialist, who had been employed at Frost

a year prior, testified that V.T. would have been the sixth student in a classroom of six, in

accordance with his IEP. Id. at 1486. The hearing officer found that the DCPS “Monitoring

Specialist credibly testified that [Frost] had a limit of six children in the classroom intended for

28 [V.T.],” id. at 11, and concluded that the likely explanation was that plaintiff had miscounted the

number of students in the classroom. Id. at 16.

The testimony was similar at the CSM hearing. Plaintiff testified that seven students

were in the class when she visited, and that each child had a dedicated aide, further increasing

the number of people in the classroom. Id. at 680–81. The Director of Education, in contrast,

testified that, at the time of plaintiff’s visit, only four students were in the class into which V.T.

would be placed. Id. at 680, 686–87. The hearing officer found that the CSM Director of

Education’s testimony was credible and credited that the number of students in the classroom

satisfied the requirement of V.T.’s IEP. Id. at 686–87.

This dispute over how many students were in the Frost and CSM classrooms boils down

to conflicting testimony, the hearing officer’s resolution of which should be deferred to so long

as that determination is reasonable on the record. The hearing officer heard the witnesses’

testimony and was best positioned to make a judgment as to their credibility. He reasonably

determined that the school and DCPS representatives, familiar as they were with the classrooms

in question, stated the correct number of students in each classroom. No evidence in the record

indicates that that credibility determination was unreasonable.

***

In sum, then, the expert judgment of DCPS and representatives of Frost and CSM was

that both of those schools could provide V.T. a special education pursuant to the parameters of

his IEP. The hearing officer heard testimony from those parties and from plaintiff and

determined that both schools were in fact capable of complying with the terms of the IEP. Those

determinations are reasonably supported by the administrative record. In light of that record

support and in light of the deference owed to the hearing officer and the education specialists

29 responsible for V.T.’s education, plaintiff has therefore failed to show by the preponderance of

the evidence that the hearing officer erred in deciding that Frost and CSM were capable of

implementing V.T.’s IEP.

C. V.T. Is Not Entitled to Compensatory Education for the First Five Weeks of the 2018–2019 School Year

Plaintiff contends that even if the Frost was a substantively appropriate placement for

V.T., he was denied a FAPE for the first five weeks of the 2018–2019 school year. Pl.’s Mem. at

22. The school year began on August 20, 2018, whereas the Frost placement that DCPS

proposed would not begin until September 24, 2020, five weeks later. AR1 at 1380. V.T. was

thus left without a placement for that five-week window. DCPS does not contest the discrepancy

between the beginning of the school year and V.T.’s start date at Frost but responds that plaintiff

bears responsibility for the missing weeks because communication with her has proven difficult

and she sometimes does not timely respond to emails. See Def.’s Mem. at 35–37.11 Even

crediting some communication issues with plaintiff, she does not appear to be wholly at fault for

the delay, which is at least partially attributable to logistical difficulties, for example, with

scheduling school visits. See id. at 35–36.

As already noted, DCPS acted diligently in attempting to locate a placement for V.T. for

the 2018–19 school year, and continued to circulate referrals to local private schools once

plaintiff had filed due process challenges to the Frost and CSM placements, see AR2 at 6. As

plaintiff notes, neither the First HOD nor the Second HOD explicitly addressed this five-week

gap during which V.T. was left without a placement. In any event, though, the hearing officer’s

implicit determination that V.T. was not denied a FAPE by a five-week delay in his start date

11 English is not plaintiff’s native language, and she has often preferred to communicate with DCPS through her lawyer, both of which may have contributed to communication difficulties with DCPS. See Pl.’s Mem. at 6, 23 n.11.

30 was reasonable, particularly when DCPS had identified a placement for V.T. that would, it was

determined, be capable of servicing his IEP. LEAs must have some administrative flexibility in

locating a school that can satisfy a student’s IEP, cf. Lunceford, 745 F.2d at 1582 & n.5, and

enforcing rigid adherence to strict deadlines would be more likely to frustrate than facilitate the

goal of finding a suitable school.

Furthermore, in the context of fashioning relief when a student has been denied a FAPE,

courts have countenanced hearing officers’ orders to an LEA to identify an appropriate

placement, or convene an IEP meeting, within some reasonable time limit (for instance, a

month). See, e.g., Pinto v. District of Columbia,

(D.D.C. 2013)

(observing that the hearing officer “ordered DCPS to conduct appropriate evaluations of [the

student] and convene a meeting to revise his IEP as appropriate within 30 days of a written

request by plaintiffs”). Obviously, an LEA may not be able instantaneously to place a student in

an appropriate school. Clearly, then, some limited amount of time without a placement does not

necessarily amount to a denial of a FAPE. Given the flexibility afforded to LEAs in securing a

placement, the fact that this was a short, discreet gap rather than an open-ended, indefinite period

of no placement, and the fact that Frost could have implemented V.T.’s IEP, plaintiff has not

shown by a preponderance of the evidence that V.T. is entitled to compensatory education for

that five-week lacuna.

D. V.T. Is Entitled to Compensatory Education for the 2019–2020 School Year

The third and final HOD at issue concerns the 2019–2020 school year. As noted, the

hearing officer determined that DCPS denied V.T. FAPE by “not offer[ing V.T.] an educational

placement at the start of SY 2019-2020,” AR2 at 11, and, accordingly, ordered DCPS to provide

V.T. approximately three months of appropriate compensatory education, id. at 12. DCPS did

31 not appeal that decision. At the same time, however, the hearing officer declined to grant

plaintiff her requested prospective relief of “fund[ing], at market rates, [V.T.’s] instruction and

services, including access to all standard and necessary materials and resources, at home until

DCPS provides [V.T.] an appropriate school placement.” Id. at 4. Plaintiff appeals that

decision, arguing that “[b]y leaving V.T. without an education indefinitely after finding an

ongoing denial of FAPE, the Hearing Officer ruled against the equities, against the IDEA’s clear

purpose, and against the public interest.” Pl.’s Mem. at 32. Plaintiff asks that the “[t]his

Court . . . overturn that ruling and order prospective and compensatory relief for DCPS’s

ongoing failure to place V.T. in an appropriate school.” Id.

This is not the first time that the dispute over V.T.’s 2019-2020 educational placement—

or lack thereof—has come before this Court. As noted, shortly after the Third HOD was issued,

plaintiff moved, in December 2019, for a preliminary injunction. She sought the relief denied by

the hearing officer—namely, an order that “the District . . . fund independent instruction and

services, and related materials and resources, at home through independent providers until it is

determined that DCPS is providing V.T. an appropriate school placement.” Pl.’s Mot. for

Prelim. Inj. at 2, ECF No. 16.

Plaintiff’s request was denied at a hearing on December 23, 2020, despite presenting “a

very troubling situation.” Dec. 23, 2019 Hr’g Tr. (“Hr’g Tr.”) at 57:13, ECF No. 34. Yet, “[a]

hearing officer has broad discretion to fashion a remedy,” id. at 57:20; see Lopez-Young v.

District of Columbia,

(D.D.C. 2016) (“A Hearing Officer has broad

discretion to fashion a remedy where he finds that a school district has denied a child FAPE.”);

see also Adams v. District of Columbia,

(D.D.C. 2018) (“Because [the

hearing officer] made ‘reasoned and specific findings’ regarding [the student’s] disabilities and

32 past IEPs, this Court gives ‘due weight’ to his conclusions and ‘exercise of discretion’ in

determining appropriate relief for the FAPE violations identified in the HOD.” (quoting Turner

v. District of Columbia,

, 35–36 (D.D.C. 2013)), and in issuing the Third

HOD, the hearing officer had acted within that discretion. Specifically, he determined that “the

prospective order” plaintiff sought “was unnecessary because DCPS [was] currently making

referrals to non-public special education separate schools for VT to attend.” Hr’g Tr. 58:12–14.

That conclusion was reasonable, given that “IDEA cases often result in an order to a school

district to revise an IEP and/or propose a new placement within a short period of time rather than

an order granting the placement requested by the Plaintiff.”

at 58:19–22; see, e.g., Adams,

(upholding hearing officer’s decision ordering “an IEP review and

revision, rather than prospective placement at [plaintiff’s chosen school]” and explaining that

“such relief is not unusual in IDEA cases, including those in which the plaintiff requests private-

school placement”); G.G. ex rel. Gersten v. District of Columbia,

(D.D.C. 2013) (upholding hearing officer’s directive “to convene [a multi-disciplinary] or IEP

meeting” in lieu of ordering plaintiff’s requested placement); Pinto,

(observing that the hearing officer “declined . . . to grant plaintiffs’ request for publicly funded

placement at [plaintiffs’ chosen school]” and “instead ordered DCPS to conduct appropriate

evaluations of [the student] and convene a meeting to revise his IEP as appropriate within 30

days of a written request by plaintiffs”). Plaintiff’s motion was thus denied, but with the

opportunity to refile later if the “potential schools and referrals that have been made by DCPS all

fall apart.” See

at 60:4–5. Plaintiff did not appeal the denial of her motion for a preliminary

injunction, nor did she renew the motion when DCPS failed to make a prompt placement.

33 Although plaintiff’s motion for a preliminary injunction was denied, her motion for

summary judgment arises in different circumstances. The 2019–2020 school year is over, yet

still V.T. has not been placed. See Pl.’s Mem. at 29–30; Def.’s Mem. at 37, 40–41.

Accordingly, the question is no longer whether the hearing officer was required to grant

plaintiff’s request for publicly funded home instruction before DCPS could attempt to find V.T. a

new placement. Now, the question is whether the hearing officer erred by permitting DCPS not

to place V.T. indefinitely—through the rest of the school year and beyond.

The answers to these two questions are different. True, “[a] Hearing Officer has broad

discretion to fashion a remedy where he finds that a school district has denied a child a FAPE,”

Lopez-Young,

, and that remedy can include allowing DCPS a reasonable

period of time to identify a new placement, see Adams,

; Pinto,

; G.G.,

; see also Struble v. Fallbrook Union High Sch.

Dist., No. 07cv2328-LAB (CAB),

, at *7–8 (S.D. Cal. Jan. 27, 2011)

(upholding hearing officer decision to “order[] the parties to meet again and develop a new IEP .

. . rather than ordering a placement for [the student]”). Plainly, however, DCPS’s time for

proposing a new placement must be limited. To hold otherwise would be to sanction the very

conduct that required the hearing officer to issue a decision in the first place: failure to provide

any instruction or services to V.T. Thus, to the extent the third HOD has allowed DCPS to deny

V.T. a FAPE throughout the rest of the 2019-2020 and now into the following school year, that

decision was in error.

DCPS counters that a placement for V.T. for the 2019-2020 school year was in fact

proposed, explaining that “since the November 20, 2019 HOD was issued, DCPS offered

Plaintiff the option of having V.T. attend Garrison Elementary School [(“Garrison”)],

34 Communication and Education Support (CE) classroom, as an interim/temporary arrangement

until a nonpublic school can be secured.” Def.’s Mem. at 41. DCPS, however, has previously

admitted that Garrison does “not fully” comply with V.T.’s current IEP, because “it’s not a

separate day school which is what’s required by the July 2018 IEP,” and because at Garrison

“VT would be the eighth student in the classroom.” Dec. 23, 2019 Hr’g Tr. at 42:14–15, 24.

Accordingly, DCPS did not cure its failure to provide V.T. a FAPE in 2019-2020 by offering to

place V.T. at Garrison.

In sum, the Third HOD erroneously permitted DCPS to deny V.T. a FAPE indefinitely,

and V.T. is therefore entitled to compensatory education for the entire 2019–2020 school year, as

well as an independent education evaluation to ascertain what, if any, progress V.T. would have

made during the 2019–2020 school year, and by extension determine the compensatory

education that V.T. needs. See Walker v. District of Columbia,

(D.D.C.

2001) (“Where a school system fails to provide special education or related services, a student is

entitled to compensatory education.”); see also AR2 at 12 (ordering DCPS to grant plaintiff

“authorization for an independent education evaluation” because plaintiff “did not present any

evidence as to compensatory education and there [was] no evidence in the record from which the

Hearing Officer [could] fashion an award”). DCPS must likewise promptly identify, in

collaboration with plaintiff, a new placement that complies with V.T.’s current IEP.

IV. CONCLUSION

For the foregoing reasons, DCPS did not deny V.T. a FAPE for the 2018–2019 school

year, either by denying plaintiff procedural rights under the IDEA or because its proposed

placements failed to comport with V.T.’s IEP. V.T. is entitled, however, to compensatory

education for DCPS’s failure to identify an appropriate placement for him for the 2019–2020

35 school year. Finally, DCPS must identify a new placement that complies with V.T.’s current IEP

within one month of the date of this decision, or else provide V.T. compensatory education for

time that he is not placed after that date.

An Order consistent with this Memorandum Opinion will be filed contemporaneously.

Date: October 1, 2020

__________________________ BERYL A. HOWELL Chief Judge

36