UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KOSHI WADE,

Plaintiff, v. Civil Action No. 20-1433 (JEB) DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Koshi Wade is the mother of District of Columbia Public Schools student K.W. and

Plaintiff in this Individuals with Disabilities Education Act lawsuit. After the DCPS team

charged with formulating an individualized education plan (IEP) for K.W.’s 9th-grade year held a

meeting without Plaintiff in attendance, she hurdled over Defendant’s offers to meet again and

sprinted to file an administrative due-process complaint, seeking another IEP meeting and

compensatory education as relief. The hearing officer dismissed that complaint, noting DCPS’s

“good faith” efforts to meet and encouraging the parties to collaborate in developing K.W.’s IEP.

See ECF No. 12-1 (Hearing Officer Determination) at 16. Despite Defendant’s additional

attempts to schedule another meeting and its authorization of substantial additional services,

Wade pressed forward by filing suit in federal court.

Just like Magistrate Judge G. Michael Harvey, to whom it referred the matter for Report

and Recommendation, this Court is skeptical that this flurry of legal activity is for K.W.’s

educational benefit. Rather, as Plaintiff’s counsel admitted before the hearing officer, Wade

began pursuing legal remedies just eight days after the initial IEP meeting because “when a

school district violates a parent’s rights[,] . . . the parent has a right to have her attorney fees

1 paid.” ECF No. 13-4 (February 24, 2020, Due-Process Hearing Transcript) at 21:11–12; see also

id. at 22:7–16.

In any event, this Court ultimately agrees with Magistrate Judge Harvey’s

recommendation to grant Defendant’s Motion for Summary Judgment and deny Plaintiff’s.

I. Background

The Court will set forth the relevant statutory framework before turning to the

background of Plaintiff’s claims and the procedural history of the case.

A. Statutory Framework

The purpose of IDEA is “to ensure 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). As a condition

of receiving federal funding, school districts must adopt procedures to ensure appropriate

educational placement of disabled students.

§ 1413. A student’s eligibility for a FAPE under

IDEA is determined by the results of testing and evaluating the student, and the findings of a

multidisciplinary team or “individualized education program team.” Id. § 1414. Such a team

consists of the parents and teachers of the disabled student, as well as other educational

specialists, who meet and confer in a collaborative process to determine how best to

accommodate the needs of the student and provide a FAPE. Id. § 1414(d)(1)(B).

As the “centerpiece of the statute’s education delivery system for disabled children,” the

IEP “sets out the child’s present educational performance, establishes annual and short-term

objectives for improvements in that performance, and describes the specially designed

instruction and services that will enable the child to meet those objectives.” Honig v. Doe,

(1988). “[A] school must offer an IEP reasonably calculated to enable a child to

2 make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v.

Douglas Cty. Sch. Dist.,

, 999 (2017).

Parents who object to the school district’s “identification, evaluation, or educational

placement” of their child or to its “provision of a free appropriate public education” may request

a due-process hearing before an impartial hearing officer. See

(b)(6), (f)(1).

Parents there have a “right to present evidence and confront, cross-examine, and compel the

attendance of witnesses.”

§ 1415(f), (h). If a hearing officer finds that the school district has

denied the student a FAPE, he has “broad discretion to fashion an appropriate remedy.” B.D. v.

District of Columbia,

(D.C. Cir. 2016) (quoting Boose v. District of

Columbia,

(D.C. Cir. 2015)). Among other remedies, a hearing officer may

award compensatory education — i.e., “educational services . . . to be provided prospectively to

compensate for a past deficient program.” Reid ex rel. Reid v. District of Columbia,

(D.C. Cir. 2005) (quoting G. ex rel. RG v. Fort Bragg Dependent Schs.,

(4th Cir. 2003)); see also B.D.,

(Compensatory education “aims to put a

student . . . in the position he would be in absent the FAPE denial.”). Overall, any relief “must

be tailored to meet the child’s specific needs.” Branham v. Gov’t of D.C.,

, 11–12

(D.C. Cir. 2005) (citing

(d)(1)(A)).

Parents “aggrieved by” a hearing officer’s findings and decision may bring a civil action

in either state or federal court. See

(i)(2)(A). In reviewing the hearing officer’s

determination (HOD), a court has broad remedial authority to grant “such relief as [it]

determines is appropriate.”

§ 1415(i)(2)(C)(iii); see Florence Cty. Sch. Dist. Four v. Carter

ex rel. Carter,

, 15–16 (1993). Attorney fees are recoverable to a prevailing plaintiff

in an IDEA action. See

(i)(3).

3 B. Factual Background

The Court offers a brief summary of the factual history of the case; readers interested in

more detail may consult the 50-plus pages of the HOD and the Report and Recommendation.

See HOD at 5–17; ECF No. 25 (R&R). During the 2019–20 school year, K.W. was enrolled in

the 9th grade in the DCPS system. See R&R at 2 (citing HOD at 29). In the prior school year,

the charter school that he was attending had developed an IEP that mandated two hours per week

of specialized instruction in the general-education setting and two hours per month of

behavioral-support services outside of that setting.

(citing ECF No. 12-2 (February 2019

IEP) at 23–32).

In early December 2019, K.W.’s DCPS case manager emailed Plaintiff to schedule a

January 2020 IEP annual-review meeting. See HOD, ¶ 7. The case manager followed up with a

phone call, in which Wade agreed to the meeting date.

The manager then, in late December,

emailed Plaintiff a draft of the proposed IEP.

Two days before the January 8 meeting,

Plaintiff’s counsel requested that it be canceled because Wade could not open the documents

attached to the email and because counsel had not been copied on the meeting-notice emails.

. The IEP team representative responded that all parties had agreed to the meeting date and

that it would proceed.

The meeting thus went forward without Wade or her counsel, and the

team revised K.W.’s IEP by increasing specialized-instruction services from two hours per week

to 10 and maintaining the existing two hours per month of behavioral-support services.

.

The IEP also moved K.W. to an “inclusion classroom co-taught by a general education and a

special education teacher.”

In other words, there was a substantial augmentation to the

services he was provided.

4 Despite this result, eight days after that meeting, Plaintiff’s counsel filed a due-process

complaint.

. As Magistrate Judge Harvey noted, “The record reflects no efforts by

Plaintiff or her counsel to reconvene the IEP team to address any objections to K.W.’s special

education program prior to filing [that] complaint.” R&R at 4. In a resolution meeting held

before the due-process hearing, DCPS agreed to convene a new IEP team meeting with Plaintiff

and her counsel in attendance. See HOD, ¶ 13. The District attempted to schedule that meeting

for early February, but counsel was unavailable.

All parties then agreed to set the meeting

for later that month.

On February 23 — one day before the due-process hearing began —

counsel canceled that rescheduled meeting.

In the meantime, and without a settlement

agreement in place, DCPS nonetheless authorized funding for 80 hours of independent tutoring

for K.W.

.

Following the February 24 and 25 due-process hearing, the hearing officer determined

that “DCPS’ holding a[] January 8, 2020 IEP meeting, without the parent’s participation, was a

procedural violation of the IDEA” and “resulted in a denial of FAPE because it impeded

Mother’s opportunity to participate in the development of her son’s IEP.” HOD at 11; see also

R&R at 5. As to any award of compensatory education for that violation, however, the hearing

officer noted that Plaintiff “did not put on evidence of educational harm resulting from DCPS’

holding the January 8, 2020 IEP meeting without the parent’s participation and did not propose a

compensatory education remedy for this denial of FAPE.” HOD at 14. “[I]n the absence of

evidence of substantive harm to [K.W.] from this procedural violation,” the officer found “that

DCPS’ voluntary provision of 80 hours of independent tutoring is reasonably calculated to put

[K.W.] at least in the position [he] would have been in, had DCPS not held the January IEP

meeting without the parent.”

. The officer then “decline[d] to reach the issue of whether

5 the IEP goals . . . were appropriate for [K.W.],”

, in light of the District’s offer to

reconvene K.W.’s IEP team with his mother, counsel, and their education-consultant expert

witness in attendance. As “DCPS ha[d] been attempting in good faith to schedule another IEP

meeting,” the hearing officer declined to “order DCPS to do what it has already undertaken to

do.”

. He dismissed without prejudice the due-process complaint.

.

C. Procedural History

Still unhappy with the result, Plaintiff brought suit in this Court, and the case was

referred to Magistrate Judge Harvey for full case management. See ECF No. 1 (Complaint);

ECF No. 3 (Referral Order). The parties then filed Cross-Motions for Summary Judgment. See

ECF No. 14 (Pl. MSJ); ECF No. 15 (Def. MSJ). Wade assails the hearing officer’s decision to

dismiss without prejudice her challenge to the IEP’s appropriateness and seeks an award of

compensatory education for K.W. See Compl., ¶¶ 16–17;

. (She also challenged his

decisions regarding her exclusion from the meeting and her records requests, and she sought an

order for a new IEP meeting.

at 3–5. Given her lack of objection to the R&R on these issues,

however, they are no longer live.) With the Motions pending, the parties finally met in

December 2020 and developed a new IEP. See R&R at 29. Magistrate Judge Harvey then

issued a comprehensive Report and Recommendation on February 19, 2021, in which he

concluded that the hearing officer’s determination was within his broad discretion and was

supported by sufficiently detailed reasoning. See R&R at 37. Among other conclusions, he

recommended that this Court uphold the officer’s decision to dismiss without prejudice the IEP

claim because Plaintiff had waived her right to any relief that a court could offer and did not

“me[e]t her burden of ‘persuading the [Magistrate Judge] that the hearing officer was wrong.’”

6 R&R at 33 (quoting Reid,

). He thus recommended that this Court grant

Defendant’s Motion for Summary Judgment and deny Plaintiff’s. See R&R at 2.

Wade timely filed her Objections to the Report on April 9, 2021, see ECF No. 27 (Pl.

Objections), and DCPS responded on May 21, 2021. See ECF No. 28 (Def. Response). The

Court turns now to those Objections.

II. Legal Standard

Under Federal Rule of Civil Procedure 72(b), once a magistrate judge has entered his

recommended disposition, a party may file specific written objections. See

(b)(1)(C). The district court must then “make a de novo determination of those portions of

a magistrate judge’s findings and recommendations to which objection is made.” LCvR 72.3(c);

see also Fed R. Civ. P. 72(b);

(b)(1)(C); Winston & Strawn LLP v. FDIC,

(D.D.C. 2012). District judges are not, however, required to review those

portions of a magistrate judge’s report to which no objection was filed. See Thomas v. Arn,

, 150–51 (1985). In sum, the district judge “may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the magistrate judge.”

(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3).

Summary judgment under IDEA is not “a true summary judgment procedure.” L.R.L. ex

rel. Lomax v. District of Columbia,

(D.D.C. 2012) (quoting Ojai Unified

Sch. District v. Jackson,

, 1472 (9th Cir. 1993)). Rather than applying the typical

summary-judgment standard under Federal Rule of Civil Procedure 56(a), “the district court

essentially conduct[s] a bench trial based on a stipulated record.” Id. (quoting Ojai, 4 F.3d at

1472). Thus, “[a] motion for summary judgment [in IDEA cases] operates as a motion for

judgment based on the evidence comprising the record and any additional evidence the Court

7 may receive.” N.W. v. District of Columbia,

(D.D.C. 2017) (quoting D.R.

ex rel. Robinson v. District of Columbia,

(D.D.C. 2009));

(i)(2)(C)(ii) (court “shall hear additional evidence at the request of a party”). Where

“neither party submits additional evidence for the court’s review, ‘the motion for summary

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

the administrative record.’” Q.C-C. v. District of Columbia,

(D.D.C.

2016) (quoting Heather S. v. Wisconsin,

(7th Cir. 1997)).

In a review of an HOD, 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, and . . . a court upsetting the officer’s decision must at least

explain its basis for doing so.” Reid,

(quoting Kerkam v. McKenzie,

(D.C. Cir. 1989)). In assessing the HOD, moreover, the district court does not exercise

unfettered de novo review. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,

(1982) (“Thus the provision that a reviewing court base its decision on the

‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their own

notions of sound educational policy for those of the school authorities which they review.”).

Courts must give administrative proceedings “due weight,”

and “‘[f]actual findings from the

administrative proceedings are to be considered prima facie correct.’” Roark ex rel. Roark v.

District of Columbia,

(D.D.C. 2006) (alteration in original) (quoting S.H.

v. State-Operated Sch. Dist. of Newark,

(3d Cir. 2003)). The statute,

however, also suggests “less deference than is conventional in administrative proceedings,” Reid,

, since the district court is allowed to hear additional evidence at the request of

the party. See

(i)(2)(C)(ii).

8 III. Analysis

Plaintiff raises two objections to the Magistrate Judge’s recommended denial of her

Motion for Summary Judgment. She asserts that he erred in determining that: 1) the hearing

officer was not required, in these circumstances, to issue a decision on whether K.W.’s IEP was

inappropriate; and 2) she waived her right to compensatory education for K.W. See Pl. Obj. at 2;

see also ECF No. 30 (Plaintiff’s Reply) at 6, 11. She asks this Court to find K.W.’s January

2020 IEP “inappropriate and award appropriate compensatory education” or to remand the case

to the hearing officer for him to do so. See Pl. Reply at 4; see also Pl. Obj. at 5–6. To the extent

that Plaintiff makes additional arguments in her Reply, they are untimely and the Court thus need

not consider them. E.g., E. Band of Cherokee Indians v. Dep’t of the Interior, No. 20-757,

, at *25 (D.D.C. Apr. 16, 2021) (forfeiture of arguments first made in reply brief).

Plaintiff first contends that Magistrate Judge Harvey was wrong to uphold the hearing

officer’s determination that he need not adjudicate the appropriateness of the January 2020 IEP’s

goals. As mentioned above, the hearing officer “decline[d] [to] reach the issue of whether the

IEP goals, as originally drafted, were appropriate for [K.W.],” deferring his decision on the

matter to allow the collaborative-resolution process to continue. See HOD at 12. Plaintiff

believes, however, that IDEA “plainly and unambiguously provides [that] ‘a decision made by a

hearing officer shall be made on substantive grounds . . . of whether the child received a free

appropriate public education.’” Pl. Obj. at 3 (quoting

(f)(3)(E)(i)).

To begin, the officer, in effect, allowed the process Plaintiff herself requested to play out.

During the hearing, her counsel confirmed that, to remedy the alleged inadequacy of the IEP, she

was asking the hearing officer “to order [DCPS] to hold a meeting to redo the January 8, 2020

IEP to include better goals” and “to take the input of the [education-consultant expert witness,]

9 who presumably is going to attend.” ECF No. 13-6 (February 25, 2020, Due-Process Hearing

Transcript) at 77:5–15. Her expert witness also testified that the appropriate remedy in this

situation was to “have an IEP team meeting and . . . put goals on the IEPs that are appropriate.”

Feb. 24, 2020, Due-Process Hearing Tr. at 54:21–22; see also

at 55:8–11 (confirming hearing

officer’s conclusion that the best path forward would be “to have another IEP team meeting to

give the parent’s representatives and the parent herself an opportunity to say what belongs in that

IEP that’s not in that IEP”). The expert, moreover, “affirmed in her hearing testimony that she

would participate in the reconvened IEP meeting and provide input on appropriate IEP goals for

Student.” HOD at 12. DCPS, for its part, “agreed to reconvene [K.W.]’s IEP team to review the

January 8, 2020 IEP and revise it as appropriate.”

“In light of these developments,” which

occurred after Plaintiff filed her due-process complaint, the hearing officer denied the relief

sought without prejudice. Id.; see also

(denying relief). Because “DCPS ha[d] been

attempting in good faith to schedule another IEP meeting [with Plaintiff],” he concluded that “it

would not be appropriate for [him] to order DCPS to do what it has already undertaken to do.”

.

Despite achieving the ostensible purpose of her due-process complaint — viz., a new IEP

meeting — Plaintiff nonetheless argues that the hearing officer erred because IDEA requires him

to issue a decision on substantive denials of a FAPE. See Pl. Obj. at 13. She points to

(f)(3)(E)(i), which provides: “Subject to [the subsection on procedural violations of

IDEA], a decision made by a hearing officer shall be made on substantive grounds based on a

determination of whether the child received a free appropriate public education.” Based on this

section, Wade concludes that the hearing officer thus had no discretion to do anything but decide

her claim “on substantive grounds.” Pl. Obj. at 3.

10 The plain reading of section 1415(f)(3)(E)(i) does not support Plaintiff’s argument, nor

does she cite any case that interprets the section in such a manner. See R&R at 33–35 (noting

same and concluding that “[h]er argument . . . proceeds by ipse dixit”). As Magistrate Judge

Harvey explained, section 1415(f)(3)(E)(i) simply clarifies that a hearing officer’s decision

regarding a child’s FAPE generally must be made on substantive grounds and describes when a

procedural violation rises to a substantive issue.

at 33–34. The section does not prohibit an

officer from dismissing a claim without prejudice to allow the parties to correct alleged flaws in

the IEP, particularly when that is the very remedy Plaintiff seeks. Cf. Jones v. District of

Columbia, No. 17-1437,

, at *18–21, (D.D.C. Sept. 5, 2018) (upholding

hearing officer’s denial without prejudice of claim with insufficient record and officer’s order for

DCPS to obtain evaluation to fill evidentiary gap); Simms v. District of Columbia, No. 17-970,

, at *19 (D.D.C. July 26, 2018) (upholding hearing officer’s decision to

dismiss without prejudice an inappropriate-IEP claim on justiciability grounds because parties

were in process of revising IEP), report and recommendation adopted,

(D.D.C. Sept. 28, 2018). While it may have been more appropriate for the hearing officer to

order DCPS to reconvene a meeting rather than relying on Defendant’s promise, cf. Jones,

, at *18–21, that meeting has now occurred. The Court thus agrees with Magistrate

Judge Harvey that Plaintiff has not carried her burden to show that the hearing officer erred, and

it thus accepts the recommendation to grant judgment to Defendant. See Reid,

.

The Court need not go further, but it will touch briefly on Plaintiff’s request for

compensatory education to remedy the allegedly inappropriate IEP. Doing so only highlights

that “none of the relief Plaintiff seeks is available to her.” R&R at 32–33 (concluding same).

11 As discussed above, while Wade requested compensatory education in her written due-

process complaint, she consistently confirmed before the hearing officer — through her counsel

and her expert witness — that she merely sought a subsequent IEP meeting. She nonetheless

now asks this Court to find that the hearing officer erred by failing to provide compensatory

education for K.W. A federal court, however, is not the forum in which a litigant may pick up

the sticks she dropped in an administrative hearing. Id. at 27 (recommending Court find waiver

based in part on Plaintiff’s request for only meeting at due-process hearing). This is particularly

so where Plaintiff has neglected to provide any evidence of what compensatory education K.W.

requires beyond the substantial amount already being provided. Id. (recommending Court find

waiver based in part on lack of evidence); see Jones v. District of Columbia, No. 15-1505,

, at *1 (D.D.C. Feb. 22, 2017) (adopting recommendation to find claim to

compensatory education waived where record contained no evidence of how any such award

should be calculated); cf. Gill v. District of Columbia,

(D.D.C. 2011)

(denying claim for 150 hours of compensatory education due to lack of evidentiary support),

aff’d, No. 11-7032,

(D.C. Cir. Aug. 16, 2011).

It is not clear, moreover, that compensatory education would be warranted even if the IEP

were found inappropriate and Plaintiff had properly pursued this remedy. See Reid,

(compensatory education is “discretionary” relief); Phillips ex rel. T.P. v. District of

Columbia,

, 50 n.4 (D.D.C. 2013) (“[A]n award of compensatory education is

not mandatory in cases where a denial of a FAPE is established.”). While she contends that

K.W. suffered educational harm as a result of the inappropriate IEP, the hearing officer found,

based on Plaintiff’s testimony, that “[s]ince being moved to the inclusion classroom” as a result

of the IEP, “[K.W.] has been doing better at school.” HOD at 8 (emphasis added); see also Jones

12 v. District of Columbia, No. 17-1437,

, at *2 (D.D.C. Feb. 11, 2019)

(upholding determination that compensatory education was unnecessary where there was “no

lost educational benefit to redress”) (citation omitted). The District, moreover, voluntarily

granted Plaintiff 80 hours of tutoring for K.W., and Plaintiff raises no argument that the tutoring

was insufficient to remedy any educational harm from the allegedly inappropriate IEP. See

Phillips ex rel. T.P.,

(no compensatory education where “any deficiencies

[student] suffered [from FAPE denial] already have been mitigated”).

IV. Conclusion

While DCPS should perhaps have worked harder back in January 2020 to find an IEP

meeting time convenient to Plaintiff and her counsel, the price Defendant has paid in this

prolonged litigation vastly outweighs any error it committed. It had to participate in an

unnecessary due-process hearing followed by a lawsuit that, in the accurate words of Magistrate

Judge Harvey, “need not have been brought.” R&R at 1. All along, the District has provided

robust services to K.W. and has been willing to engage in IEP meetings, yet Wade has continued

to press this litigation, requiring a substantial outlay of city and judicial resources. The Court

can only conclude that a quest for attorney fees has driven the action, which casts neither her nor

her counsel in a favorable light.

For the reasons stated herein, the Court will issue a contemporaneous Order accepting the

Recommendation of the Magistrate Judge to deny Plaintiff’s Motion and grant Defendant’s.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: August 18, 2021

13