UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KARLA REID-WITT,

Plaintiff,

v. Civil Action No. 1:19-cv-02473 (CJN)

DISTRICT OF COLUMBIA,

Defendant.

ORDER

Karla Reid-Witt brings this action on behalf of her daughter, C.W., against the District of

Columbia, seeking the reversal of a hearing officer’s dismissal of her Individuals with

Disabilities in Education Act (“IDEA”), 20 U.S.C §§ 1400 et seq., and disability discrimination

claims. See generally Compl., ECF No. 1. Currently before the Court are the Parties’ cross-

motions for summary judgment on the IDEA claims. See generally Def.’s Mot. Summ. J., ECF

No. 33; Pl.’s Cross-Mot. Summ. J., ECF No. 34. At oral argument, the District conceded a

central argument of its summary judgment motion—admitting that C.W.’s school was a “general

curriculum” high school subject to the directives of the IDEA. In light of this concession and for

the reasons discussed below, the Court denies the Parties’ cross-motions without prejudice and

remands the case to the hearing officer for additional findings of fact and conclusions of law.

C.W. was admitted to enter Benjamin Banneker Academic High School, a selective

public high school in the District of Columbia, as a ninth grader during the 2016–17 school year.

Am. Compl. ¶¶ 13–15. C.W. suffers from anxiety and depression, which cause difficulties with

“organization, time management, completing assignments, memory, and focus.” Id. ¶¶ 14–15.

After a breakdown caused C.W.’s temporary hospitalization in the middle of ninth grade, Reid-

1 Witt requested that the District of Columbia Public Schools (“DCPS”) arrange an Individual

Education Program under the IDEA for C.W. to complete either at home or in the hospital. Id. ¶

1. Later, DCPS informally notified Reid-Witt that C.W. was ineligible for specialized

instruction. Id. ¶¶ 26–28. DCPS instead issued an accommodation plan under Section 504 of the

Rehabilitation Act that permitted C.W. to drop two courses and gave her various testing and

learning accommodations. Id. ¶ 30; see also Section 504 Plan of Jun. 9, 2017, ECF No. 8-1.

C.W. missed 71 days of the ninth grade. Am. Compl. ¶ 31.

Before her tenth-grade year, DCPS formally denied Reid-Witt’s request for special-

education services. Id. ¶¶ 32–34. C.W. missed 67 school days that year and experienced at least

one instance of suicidal ideation that required hospitalization. Am. Compl. ¶¶ 42–49. Despite

these alarming developments, DCPS maintained its position that C.W. was ineligible for special-

education services. Id. ¶¶ 50–53.

The situation finally became untenable during C.W.’s eleventh-grade year. C.W.

attended only one day of school that year, and DCPS repeatedly rejected Reid-Witt’s special-

education services requests. Id. ¶¶ 50–72. Eventually, the school informed Reid-Witt that

C.W.’s grade-point average and record of community service hours had fallen below the

acceptable minimums and asked her to transfer to one of the District’s non-selective high

schools. Am. Compl. ¶¶ 73–78; Def.’s Ltr. of Feb. 25, 2019, ECF No. 8-5. Instead, Reid-Witt

decided to homeschool C.W., a course that has proven largely unsuccessful because of C.W.’s

disability. Id. ¶¶ 85–89.

Reid-Witt filed an administrative complaint alleging both the denial of a Free

Appropriate Public Education under the IDEA and disability discrimination. Id. ¶ 1. A hearing

officer denied the complaint after finding that C.W. did not qualify for special education under

2 the IDEA and that he lacked jurisdiction over the discrimination claim. Am. Compl. ¶¶ 90–100;

Hearing Officer’s Decision, ECF No. 1-1.

As to the IDEA claim, the hearing officer found that C.W. suffered an emotional

disturbance, as defined in

(c)(4), and that the emotional disturbance “adversely

affected” her education. See Hearing Officer’s Decision, 13–14. The hearing officer

nevertheless held that C.W.’s emotional disturbance did not require special education services to

ensure C.W.’s access to the general curriculum.

. He determined that Banneker’s status

as a selective high school, which did “not follow [DCPS’s] system-wide curriculum,”

exacerbated the impact of C.W.’s emotional disturbance. See

. He noted that unlike

“typical” DCPS high schools, Banneker adheres to rigorous admissions standards, “prepares

students to pass advance placement exams,” and, most notably, “requires students to have a high

capacity for work.”

Rather than “specially designed instruction,”

(a)(1),

the hearing officer found that all C.W. needed to access DCPS’s general curriculum was to

transfer to “a more ‘typical’ education setting with a less stressful workload.” Hearing Officer’s

Decision, 15.

After exhausting her administrative remedies, Reid-Witt filed this lawsuit. The Amended

Complaint contains three counts: (1) a challenge to the denial of the IDEA complaint, Am.

Compl. ¶¶ 90–100; (2) disability discrimination under the Rehabilitation Act,

¶¶ 101–75; and

(3) disability discrimination under the ADA and DCHRA,

After the Court granted in part and

denied in part the District’s motion to dismiss the discrimination claims, see Order on Def.’s

Mot. Dismiss, ECF No. 19, the Parties cross-moved for summary judgment on Plaintiff’s IDEA

claim. See generally Def.’s Mot. Summ. J.; Pl.’s Cross-Mot. Summ. J. Those motions are

currently before the Court.

3 A motion for summary judgment in the IDEA context operates as a motion for judgment

on the administrative record and on any other evidence presented by the parties. Robinson v.

District of Columbia,

(D.D.C. 2009). The burden of proof is always on

the party challenging the administrative determination, who must “at least take on the burden of

persuading the court that the hearing officer was wrong.” Reid v. District of Columbia,

(D.C. Cir. 2005) (quoting Kerkam v. McKenzie,

(D.C. Cir. 1988)).

In reviewing a hearing officer’s decision, a court, “basing its decision on a preponderance of the

evidence, shall grant the such relief as [it] determines is appropriate.”

(i)(2)(C).

A court must give “due weight” to the hearing officer’s determinations, Bd. of Educ. v. Rowley,

(1982), and cannot “substitute its own notions of sound educational policy for

those of the school authorities.” S.S. v. Howard Road Acad.,

(D.D.C.

2008). But it affords less deference to hearing officer determinations in IDEA cases than is

conventional for most other administrative proceedings. See Reid v. District of Columbia,

(D.C. Cir. 2005) (holding that the court must “ensure that relief set forth in the

administrative award was ‘appropriate’”).

In the Parties’ filings for summary judgment, a central dispute emerged: whether

Banneker is a “general curriculum” school governed by the IDEA.

(c)(4).

Before the hearing officer, the District had argued that C.W. “does not need specialized

instruction” because she “simply needs to be in a ‘typical’ general education setting to be able to

manage [her] problems with school.” Hearing Officer Decision, 15. The hearing officer, in his

administrative decision, implied that Banneker was outside DCPS’s general curriculum. See

Hearing Officer Decision, 14–16. He noted that Banneker did not “follow [DCPS’s] system-

wide curriculum,” and juxtaposed Banneker with more “typical” educational settings where he

4 believed C.W. might have success.

And his decision appears ultimately to have turned on

his findings that the “record suggests that [C.W.] should be able to manage a more ‘typical’

educational setting with a less stressful workload,”

, and that “[n]one of [Reid-Witt’s]

witnesses clearly addressed the issue of whether [C.W.] would be able to function in a ‘more

typical’ general education setting, like School B, even though [Reid-Witt] bears the burden of

persuasion on this claim.”

.

Plaintiff argues here that the hearing officer erred in characterizing Banneker as a

specialized school. She contends that Banneker, even with its selective admissions process,

rigorous academic standards, and additional academic and extracurricular requirements, is a

general curriculum high school and, as such, must provide specially designed instruction to

special needs students to ensure that they can access Banneker’s curriculum. See Pl.’s Cross-

Mot. at 36; Pl.’s Reply at 2.

The District disagrees—or at least disagreed in its filings. In its summary judgment

motion, the District cited various ways in which Banneker is different from other public high

schools and expressly argued that “the record evidence shows that Banneker is not a general

curriculum school.” See Def.’s Mot. at 17 (emphasis added); see also

(describing

Banneker as “a specialized school that has different requirements than a typical District of

Columbia Public School with a general education curriculum”);

(describing Banneker as “a

specialty school”). The District repeated these arguments in its opposition to Plaintiff’s

summary judgment motion, contending that “Plaintiff’s argument that Banneker is a general

curriculum school is meritless.” Def.’s Opp. at 10. Indeed, the heading of the last section of the

District’s opposition brief is entitled “IV. Banneker Is Not a General Curriculum School.” Id.;

5 see also

(“the differences between a comprehensive general curriculum school and Banneker

are stark”).

As a result, the District argued, it “was not required to provide specially designed

instruction to C.W. at Banneker,” and “there is no evidence in the record to suggest that C.W.

would not have been successful at a comprehensive general curriculum school.” Def.’s Mot. at

17. The District’s position was that Banneker, as a specialized school, could not be subject to the

strictures of the IDEA and did not have to provide special education services to C.W. or any of

its students. See

(“[T]he District was not required to provide specially designed instruction to

C.W. at Banneker.”).

On June 22, 2021, the Court entered an Order setting oral argument on the Parties’

summary judgment motions. That Order also informed the parties that they should be prepared

to discuss at oral argument whether Banneker “is part of the general education curriculum

provided by the District of Columbia.” June 22, 2021 Minute Order.

Before oral argument, Plaintiff moved to introduce additional evidence. See Pl.’s Mot.

Introduce Additional Evid., ECF No. 43. This newly proffered evidence included a copy of

Banneker’s 2017 National Blue Ribbon Schools Program application, which reported that the

high school provided special education services to eleven students during the 2015–16 academic

year.

. This evidence, Plaintiff argued, showed that Banneker had provided additional

services to help students with special needs access Banneker’s curriculum, and that Banneker, at

least as late as 2015, considered itself a general curriculum high school that was required to

comply with the directives of the IDEA. See

at 2–5.

The District did not respond in writing to Plaintiff’s Motion. But at oral argument the

District immediately reversed course and disavowed the position, advanced repeatedly in its

6 filings, that Banneker is not part of its general curriculum—conceding for the first time that

Banneker is in fact part of the District’s “general curriculum” under

(b)(3)(ii).

That concession also prompted the District to change its requested relief. No longer seeking

summary judgment, the District instead asked the Court to remand the case. The District argued

that the hearing officer should on remand determine how the fact that Banneker is a “general

curriculum” high school impacts Plaintiff’s IDEA claim.

Plaintiff’s counsel, while noting that remand would be reasonable under the

circumstances, advocated for the Court to grant Plaintiff’s summary judgment motion on the

current record. But even with the District’s concession, the record, as currently constituted, is

insufficient to grant summary judgment to Plaintiff. The record contains evidence, such as

testimony from C.W.’s teachers and guidance counselor, see, e.g., Clare Berke Testimony, ECF

No. 31-3, 189; Joseph Presley Testimony, ECF No. 31-3, 206; Lisa Sancho Testimony, ECF No.

31-4, 8, and her academic performance in select classes, such as French, English, and Computer

Applications, see Grade 10 Report Card, ECF No. 29-1, 38–39, that might support a finding that

C.W. did not need special-education services to access the curriculum at Banneker (or at another

general curriculum high school in the District).1 These facts are best weighed by the hearing

officer in the first instance—this time without the misconception that Banneker is not a general

curriculum high school. The decision to remand is also consistent with how other courts in this

district have approached IDEA cases presenting analogous circumstances. See Taylor v. District

of Columbia,

(D.D.C. 2011) (dismissing without prejudice the parties’

1 Although the District has conceded that Banneker is a part of its general curriculum, it has not conceded (and the Court does not reach) the question of whether Plaintiff must demonstrate that C.W. needs special-education services to access the curriculum at Banneker or whether Plaintiff must instead demonstrate that C.W. needs special- education services to access the curriculum at any high school in the District.

7 cross-motions for summary judgment and remanding to the hearing officer for additional fact-

finding and further consideration on the merits when plaintiff proffered new evidence).

Considering Plaintiff’s newly proffered evidence, the District’s change in position, and

the District’s request to remand the case to the hearing officer for further findings, the Court, in

its discretion, holds that remand to the hearing officer for additional findings of fact and

conclusions of law is appropriate. See Henry v. District of Columbia,

(D.D.C. 2010) (“While the Court has the authority to undertake its own review of the record . . .

and issue judgment in the case, the district court may determine that the ‘appropriate’ relief is a

remand to the hearing officer for further proceedings.”).

For the reasons discussed above, it is hereby

ORDERED the parties’ cross-motions for summary judgment are DENIED without

prejudice. It is further

ORDERED that this case is REMANDED to the hearing officer for additional findings

of fact and conclusions of law in light of Defendant’s concession that Benjamin Banneker

Academic High School is part of the District of Columbia’s general curriculum.

DATE: July 28, 2021 CARL J. NICHOLS United States District Judge

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