K.B. v. Dist. of Columbia

K.B., a minor, by his parent and next friend, SYLVIA BROWN, Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.

Civil Action No.: 13-0649 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 4, 2015

Re Document Nos.: 18, 20

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT & DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff K.B. is a young man with a learning disability who received special education and related services pursuant the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"). K.B. began attending the Monroe School in the District of Columbia as a ninth grade student in November 2010. In May 2012, the District of Columbia Public Schools ("the District" or "DCPS") determined that K.B. should transfer to High Road Academy for the 2012-2013 school year so that he could receive appropriate instruction from dually certified teachers. K.B.'s mother, Ms. Sylvia Brown, filed a due process complaint alleging that the District violated the IDEA and denied K.B. a free and appropriate public education ("FAPE") by unilaterally changing his placement to High Road, a school that she believed would be unable to implement K.B.'s individualized educational program ("IEP"). After a due process hearing, the hearing officer determined: (1) that the move from Monroe to High Road did not constitute a change in educational placement, and (2) that High Road could appropriately implement K.B.'sIEP, so DCPS did not deny K.B. a FAPE. K.B., through his mother, argues that the hearing officer erred by ignoring controlling law and relevant facts and that DCPS should be ordered to pay K.B.'s outstanding tuition at Monroe. Now before the Court are the parties' cross-motions for summary judgment. As explained below, because Ms. Brown failed to show that the hearing officer erred, the Court will grant the District's motion for summary judgment and will deny Plaintiff's cross-motion for summary judgment.

II. BACKGROUND

A. Statutory Framework

Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." Henry v. District of Columbia, 750 F. Supp. 2d 94, 96 (D.D.C. 2010) (quoting 20 U.S.C. § 1400(d)(1)(A)). "A free appropriate public education entitles 'each child with a disability' to an 'individualized education program' that is tailored to meet his or her unique needs." Id. (quoting 20 U.S.C. §§ 1414(d)(1)(A)-(2)(A)).

The individualized education program ("IEP") is the "primary vehicle" for implementing the IDEA. Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 830 (D.C. Cir. 2006) (citation omitted). The IEP is "[p]repared at meetings between a representative of the local school district, the child's teacher, the parents or guardians, and, whenever appropriate, the disabled child." Id. (citation omitted). It "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." Id. (citations omitted).

When the parents of a student with a disability are dissatisfied with a school district or agency's "identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child," 20 U.S.C. § 1415(b)(6), the IDEA entitles them to present their arguments at an "impartial due process hearing." See id. § 1415(f). During the pendency of such proceedings "unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child." Id. § 1415(j). This so-called stay-put provision of the IDEA was intended to prevent school officials from excluding disabled children from regular public schools over parental objection during the course of review proceedings. See Honig v. Doe, 484 U.S. 305, 327 (1988).

B. K.B.'s Education

K.B. is a student with a disability classification of Specific Learning Disability. Pl.'s Statement of Material Facts (''Pl.'s SOF'') ¶ 5, ECF No. 19-3. He also struggles with anxiety. Id. ¶ 7; A.R. 314-17, ECF No. 6-8. According to Ms. Brown, K.B. has changed schools on a number of occasions since beginning his education, and his anxiety went largely unaddressed by schools that did not have the time to talk to him about his concerns. A.R. 285, 341.

In November 2010, K.B. began attending ninth grade at the Monroe School, a nonpublic day school for students with learning disabilities. Pl.'s SOF ¶ 12. K.B. initially had some difficulties with the transition, which his mother attributes to the fact that K.B. had just transferred from an "overbearing" school environment. A.R. 309. When he arrived at Monroe, K.B. had a "limited tolerance for frustration and a less than average ability to persevere in the face of obstacles," and he was "at risk for recurrent episodes of overt anxiety, tension, nervousness, and irritability." Pl.'s SOF ¶ 10 (quoting A.R. 6). As K.B.'s anxiety rose, he would begin to sweat, which in turn further increased his anxiety as he worried about the odor.A.R. 389-90. He required almost daily counseling in response to critical incidents and emotional trauma, and he had problems concentrating on assignments at school. A.R. 388-89. On several occasions, K.B. shut down, putting his head on his desk in class and saying he could not do the work. A.R. 403. In addition, he did not interact with the other students or participate in school activities when he first arrived at Monroe. A.R. 413.

With time and counseling, however, K.B.'s behavior stabilized and his emotional issues decreased. A.R. 388-89. He learned to manage his glandular condition and developed increased self-esteem. A.R. 390. His academic performance improved to the extent that K.B. began to approach or even exceed grade equivalency in some subjects, and he no longer required daily counseling. A.R. 390, 399. In the view of Dr. Carolyn Gravely-Moss, Monroe's counseling psychologist, K.B. made significant progress at Monroe and has learned to be his own self-advocate. A.R. 405.

In January 2012, when K.B. was in the tenth grade, DCPS notified K.B. that they intended to transfer him from Monroe to a computer-based program located within Spingarn, a general education high school. Pl.'s SOF ¶ 15. K.B.'s mother filed a due process complaint to challenge the transfer, and she ultimately prevailed. Id. ¶¶ 16-17. On April 16, 2012, the hearing officer found that K.B.'s IEP called for direct instruction throughout the day, and that because he would lose that direct instruction if transferred from Monroe to what was primarily a computer-based program, the "decision to change the Student's location of services was actually a change in placement." A.R. 73-74. The hearing officer also found that the computer-based program was designed for students with emotional disturbances, which K.B.—who had been bullied in the past and was socially vulnerable—did not have. A.R. 74. The hearing officer concluded that the change in placement constituted a denial of a FAPE, and he ordered DCPS tofund K.B.'s attendance at Monroe for the remainder of the 2011-2012 school year and to convene an IEP meeting within 20 school days from the issuance of the decision. A.R. 74-75. K.B.'s IEP meeting was subsequently held on May 21, 2012, for the purpose of reviewing his IEP and discussing the school that K.B. would attend for the 2012-2013 school year. A.R. 101-02.

At the May 21 hearing, the IEP team—including Ms. Brown—reviewed K.B.'s progress on his IEP goals, his social and emotional functioning, and his strengths and weaknesses. Id. Dr. Gavely-Moss, explained that K.B.'s weaknesses included emotional instability, a lack of trust, anxiety, and anxiety-related perspiration problems. A.R. 105-06. She further explained that despite some initial regression in response to instability in his living situation, K.B. was getting to the point where he should be in terms of his social and emotional development. A.R. 106. After some discussion, the IEP team agreed upon the quantity and nature of K.B.'s instruction and support services; he was to receive 25.5 hours of specialized instruction, 60 minutes of speech-language pathology services, and 60 minutes of behavioral support services each week.¹ A.R. at 103, 106, 301, 451-52. The IEP team also agreed that all of K.B.'s specialized instruction and support services were to be delivered outside of the general education setting. A.R. at 90.

The IEP team then considered the school that K.B. would attend for the upcoming school year. The DCPS compliance case manager stated that DCPS planned to change the location of K.B.'s services to High Road. A.R. 103. She explained that DCPS had determined that Monroecould not implement K.B.'s IEP because it lacked teachers that were dually certified in special education and a content area. A.R. 103, 107. High Road, in contrast, had dually certified teachers and could implement K.B.'s IEP. A.R. 107. K.B.'s mother disagreed with the proposed transfer, saying that K.B. had already changed schools too many times in the past and that change made K.B. anxious. A.R. 103, 107.

At the conclusion of the meeting, the DCPS progress monitor issued a prior written notice indicating the proposed change in location of services from Monroe to High Road for the 2012-2013 school year. A.R. 80. The notice explained that Monroe could not implement K.B.'s IEP and provide the necessary specialized instruction as the school lacked certified special education teachers. A.R. 80.

C. The 2013 Due Process Hearing

K.G.'s mother initiated the present action when she filed a due process complaint on ...