J.T. v. Dist. of Columbia

496 F.Supp.3d 190

J.T., Plaintiff,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 19-989 (BAH)

United States District Court, District of Columbia.

Signed October 1, 2020

Douglas Tyrka, Tyrka & Associates, LLC, McLean, VA, for Plaintiff.

Tasha Monique Hardy, Steven Nathan Rubenstein, Office of Attorney General, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Plaintiff, J.T., brings this action against the District of Columbia under the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. §§ 1400 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-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. Id. at 224. 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. Id. at 677.

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 id. at 790. Following a due process hearing on the issue, on October 5, 2015, a hearing officer ordered DCPS to perform evaluations of V.T., 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. Id. 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 id. at 813. See generally id. 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. Id. at 830.

In August 2016, the parties convened to create a new IEP at another meeting that was evidently adversarial. See id. at 839 ("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 id. 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. Id. 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. Id. at 858.

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), 2019 WL 3501667, 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 id. 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." Id. at *3. The hearing officer eventually ruled against V.T.’s parents, deciding that the May 2017 IEP was appropriate. See id. 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." Id. 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. Id. at 678. 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. Id. at 8. In the same email, the Monitoring Specialist asked if plaintiff was interested in other schools as well, but plaintiff did not respond to propose any other schools. Id.

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"). Id. Following review of DCPS's referral, Frost sought to observe V.T. to determine if the school could fulfill the terms of his IEP. Id. V.T. was no longer enrolled at Kingsbury, however, and thus Frost was unable to observe him without him visiting Frost. Id. 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. Id.

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. Id. 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. Id. DCPS never received a response to its offer of transportation. Id.

Following plaintiff's silence, on September 17, 2018, DCPS called plaintiff prior to sending a Location of Services ("LOS") letter. Id.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. Id. Following this call, DCPS forwarded both Frost's acceptance letter and the LOS letter to plaintiff. Id.; see id. at 250 (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," id. at 1266, 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. Id. at 10. 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...