Dist. of Columbia Int'l Charter Sch. v. Lemus

660 F.Supp.3d 1

DISTRICT OF COLUMBIA INTERNATIONAL CHARTER SCHOOL, Plaintiff, v. Ana LEMUS, Defendant.

Case No. 21-cv-0223 (RCL)

United States District Court, District of Columbia

Signed March 27, 2023

Lauren E. Baum, Law Offices of Lauren E. Baum, P.C., Washington, DC, for Plaintiff.

Karen D. Alvarez, Washington, DC, for Defendant.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

Orlin Cruz Lemus ("Orlin"), a student with a disability, enrolled in the District of Columbia International Charter School ("DCI") in the sixth grade. Nearly three years later, Orlin's mathematics, reading, and written expression skills had either stayed the same or worsened. After DCI expelled Orlin for disciplinary reasons, his mother, Ana Lemus ("Lemus"), administratively appealed to the Office of the State Superintendent of Education seeking, among other things, a determination that DCI denied Orlin a free appropriate public education. After the Office determined that DCI indeed failed to provide an appropriate education, DCI appealed the administrative determination to this Court, seeking declaratory and injunctive relief. Both DCI and Lemus moved for summary judgment. For the reasons that follow, the Court will GRANT IN PART AND DENY IN PART DCI's motion for summary judgment, GRANT IN PART AND DENY IN PART Lemus's motion for summary judgment, and VACATE IN PART the administrative determination, and REMAND the case to the Office of the State Superintendent of Education for further proceedings.

I. STATUTORY BACKGROUND

A. Individuals with Disabilities Education Act ("IDEA")¹

"Under the Individuals with Disabilities Education Act (known as 'IDEA'), states and territories, including the District of Columbia, that receive federal educational assistance must establish 'policies and procedures to ensure,' among other things, that 'free appropriate public education,' or 'FAPE,' is available to disabled children." Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (quoting 20 U.S.C. § 1412(a)(1)(A)). Under the IDEA, school districts "must ensure that '[a]ll children with disabilities residing in the State . . . regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated.' " Id. at 518-19 (quoting 20 U.S.C. § 1412(a)(3)(A)).

When a child with a disability is identified, an Individualized Education Program Team ("IEP Team")—a multidisciplinary group including the child's teachers and parents—creates an Individualized Education Program ("IEP") to provide "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Id. at 519 (quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)); 20 U.S.C. §§ 1412(a)(4), 1414(d). An IEP "sets out, in writing, the student's existing levels of academic and functional performance, establishes appropriate goals, and describes how the student's progress toward those goals will be measured." Z.B. v. Dist. of Columbia, 888 F.3d 515, 519 (D.C. Cir. 2018) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(III)). Similarly, any proposed change to a student's IEP must be provided to the student's parent in writing. Middleton v. Dist. of Columbia, 312 F. Supp. 3d 113, 130 (D.D.C. 2018) (citing 20 U.S.C. § 1414; 34 C.F.R. §§ 300.116(a), 300.327, 300.501(b), 300.503(a)).

B. Standards for Appropriate IEP Development

"To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017). At a minimum, "[t]he IEP must aim to enable the child to make progress." Id. Although the Supreme Court has declined to define the specific contours of "progress," the Court has emphasized that "this standard is markedly more demanding than the 'merely more than de minimis' test" applied by some lower courts. Id. at 402, 137 S.Ct. 988. According to the Court, "a student offered an educational program providing 'merely more than de minimis' progress from year to year can hardly be said to have been offered an education at all." Id. at 402-03, 137 S.Ct. 988. This is because "[f]or children with disabilities, receiving instruction that aims so low would be tantamount to 'sitting idly . . . awaiting the time when they were old enough to drop out.' " Id. at 403, 137 S.Ct. 988 (quoting Rowley, 458 U.S. at 179, 102 S.Ct. 3034).

"The key inquiry regarding an IEP's substantive adequacy is whether, taking account of what the school knew or reasonably should have known of a student's needs at the time, the IEP it offered was reasonably calculated to enable the specific student's progress." Z.B., 888 F.3d at 524 (citing Endrew F., 580 U.S. at 400, 137 S.Ct. 988). "[T]hat standard calls for evaluating an IEP as of the time each IEP was created rather than with the benefit of hindsight." Id. (internal quotation marks omitted). While a court reviewing an IEP's adequacy "must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal," id. at 528 (citing Endrew F., 580 U.S. at 399, 137 S.Ct. 988) (emphases in original), a school fails its obligations under the IDEA when the student is unable to achieve progress. Endrew F., 580 U.S. at 398, 137 S.Ct. 988.

C. IDEA Due Process Hearing and Judicial Review

If a parent of a child with a disability disagrees with the school over "what a child's IEP should contain," the IDEA provides a right to appeal to "an impartial due process hearing," 20 U.S.C. § 1415(f), and a "right to be accompanied and advised by counsel" during such hearing. Id. § 1415(h)(1). A qualified impartial hearing officer presides over the due process hearing in accordance with the Act. Id. § 1415(f)(3). In the District of Columbia, "the party who filed for the due process hearing shall bear the burden of production and the burden of persuasion" at that hearing. D.C. Code Ann. § 38-2571.03(6)(A) (West 2015). When the dispute involves "the appropriateness of the child's individual educational program or placement," and the parent "establish[es] a prima facie case" that such IEP or placement is inappropriate, then "the public agency shall hold the burden of persuasion." Id. After the hearing, the hearing officer issues a hearing officer determination. 20 U.S.C. § 1415(f)(1)(E). When a hearing officer concludes that a student has been denied a FAPE, the hearing officer has "broad discretion to fashion an appropriate remedy, which can go beyond prospectively providing a FAPE, and can include compensatory education." B.D. v. Dist. of Columbia, 817 F.3d 792, 797-98 (D.C. Cir. 2016) (internal quotation marks omitted and citation omitted); 20 U.S.C. § 1415(i)(2)(C)(iii).

Either the school or the parent may appeal the hearing officer's determination through a civil action brought in either state or federal court. Id. § 1415(i)(2)(A). The reviewing court has jurisdiction to receive the record of the administrative proceeding, to hear additional evidence at the request of a party, and "basing its decision on the preponderance of the evidence, [to] grant such relief as the court determines is appropriate." Id. § 1415(i)(2)(C).

II. FACTUAL BACKGROUND

As the parties are aware, this District has supplemented Federal Rule of Civil Procedure 56 with Local Civil Rule 7(h). In general, each party moving for summary judgment must submit "a statement of material facts as to which the moving party contends there is no genuine issue," and each party must submit with their opposition "a statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated." Local Civil Rule 7(h)(1). After these submissions, the Court "may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." Id. However, when "judicial review is based solely on the administrative record," as here, "Paragraph (1) shall not apply." Local Civil Rule 7(h)(2). Instead, "[i]n such cases, motions for summary judgment and oppositions thereto shall include a statement of facts with references to the administrative record." Id. Taken together, the Court interprets this District's summary judgment rules in an administrative record case to mean that so-called "factual assertions" that are unsupported by citations to accurate evidence in the administrative record are insufficient to create issues of material fact. Similarly, statements of facts with accurate citations that are uncontroverted by an opposing party's opposition are considered material facts to which there is no genuine issue.

Here, both parties filed statements of facts.² See Pl.'s Statement of Facts ("PSOF"), ECF No. 29-1, at 2-8; Def.'s Statement of Facts ("DSOF"), ECF No. 30, at 3-14; Pl.'s Statement of Facts in Opp'n ("PSOF Opp'n"), ECF No. 32-1. However, Lemus's counsel's statement generally lacks citations to the administrative record ("AR"), ECF No. 28, save for a scarce few facts mostly irrelevant to the motions before the Court.³ Lemus counsel's reply, ECF No. 48, on the other hand, includes some factual information relevant for the motions before the Court. But Local Civil Rule 7(h)(2) mandates that "motions for summary judgment and oppositions thereto shall include a statement of facts with references to the administrative record." (emphasis added). The plain text of the rule does not permit parties to identify undisputed issues of material fact for the first time in a reply.⁴ Therefore, the Court will only consider the statements of facts submitted by the parties...