                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



ALGOYCE SMITH,
Parent and next friend of H.S.,

        Plaintiff,
               v.                                          Civil Action No. 10-1628 (JEB)
DISTRICT OF COLUMBIA,

         Defendant.


                                  MEMORANDUM OPINION

        On Sept. 24, 2010, Plaintiff Algoyce Smith, acting on behalf of her child H.S., brought

this action, challenging a hearing officer’s determination that H.S. was not denied a free and

appropriate education (FAPE) pursuant to the Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. § 1400 et seq. Magistrate Judge Deborah A. Robinson, having been referred

the case, has issued a Report and Recommendation upholding the administrative decision.

Plaintiff has now submitted her Objections to the Report. Finding that the Report appropriately

upholds the decision of the hearing officer, the Court will accept it and grant summary judgment

to the District of Columbia.

   I.      Background

        The Court will not reiterate the full factual background of the case, which is set out in

detail in the 19-page Report. Suffice it to say that the hearing officer issued his determination

(HOD) on June 27, 2010, finding that Plaintiff had failed to prove that Defendant had denied

H.S. a FAPE. Plaintiff then filed this action on Sept. 24, and both sides thereafter filed Cross-

Motions for Summary Judgment. The case was subsequently referred to Magistrate Judge


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Robinson for full case management, and she issued her report on Feb. 17, 2012. Plaintiff timely

filed her Objections to the Report on March 2. The Court does not require a response from

Defendant.

   II.       Legal Standard

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

recommended disposition, a party may file specific written objections. The district court “must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to.” Fed. R. Civ. P. 72(b)(3); see, e.g., Winston & Strawn LLP v. FDIC, 2012 WL 252418, at *3

(D.D.C. 2012) (court must conduct de novo review of objections to magistrate judge’s report and

recommendation). The district court may then “accept, reject, or modify the recommended

disposition.” Fed. R. Civ. P. 72(b)(3).

   III.      Analysis

          Plaintiff nominally raises two objections to the Report. First, she claims that the Report

“erred in determining that H.S.’s[individualized education program (IEP)] was reasonably

calculated to confer educational benefits.” Obj. at 4. Second, she maintains that the “Report

erred in determining that H.S.’s progress was ‘de minimis.’” Id. at 5. (The Court assumes that

the latter argument is actually that the Report erred in finding that the progress was more than de

minimis.) These two are in reality the same argument – namely, that DCPS’s failure to provide

H.S. a laptop and other software meant that the IEP conferred only minimal benefits. The Court

will address the question after first setting forth some of IDEA’s basic principles.

          A. Statutory Framework of IDEA

          The purpose of IDEA is “to ensure that all children with disabilities have available to

them a free appropriate public education that emphasizes special education and related services



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designed to meet their unique needs . . . .” 20 U.S.C. § 1400(d)(1)(A). “Implicit” in IDEA’s

guarantee “is the requirement that the education to which access is provided be sufficient to

confer some educational benefit upon the handicapped child.” Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982). As a condition of receiving funding under

IDEA, school districts are required to adopt procedures to ensure appropriate educational

placement of disabled students. See 20 U.S.C. § 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.” § 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. See § 1414(d)(1)(B).

       School districts must also develop a comprehensive plan, known as an individualized

education program (IEP), for meeting the special educational needs of each disabled student.

See § 1414(d)(2)(A). The IEP must be formulated in accordance with the terms of IDEA and

“should be reasonably calculated to enable the child to achieve passing marks and advance from

grade to grade.” Rowley, 458 U.S. at 204. “If no suitable public school is available, the school

system must pay the costs of sending the child to an appropriate private school.” Reid ex rel.

Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (citation and alterations

omitted).

       IDEA requires that children with disabilities be placed in the “least restrictive

environment” so that they can be educated in an integrated setting with children who are not

disabled to the maximum extent appropriate. See § 1412(a)(5)(A). IDEA also guarantees

parents of disabled children the opportunity to participate in the evaluation and placement



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process. See §§ 1414(f), 1415(b)(1). Parents who object to their child’s “identification,

evaluation, or educational placement” are entitled to an impartial due process hearing, see §§

1415(b)(6), (f)(1), at which they have a “right to be accompanied and advised by counsel” and a

“right to present evidence and confront, cross-examine, and compel the attendance of witnesses.”

§ 1415(h). A qualified impartial hearing officer conducts the due process hearing in accordance

with the Act. 5 D.C. Mun. Regs. § 3030.1.

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

in either state or federal court. § 1415(i)(2); 5 D.C. Mun. Regs. § 3031.5. The district court has

remedial authority under the Act and broad discretion to grant “such relief as the court

determines is appropriate” under IDEA as guided by the goals of the Act. § 1415(i)(2)(C)(iii).

       Although styled Motions for Summary Judgment, the pleadings in this case more

accurately seek the Court’s review of an administrative decision. IDEA provides a framework

for such review. More specifically, IDEA permits “any party aggrieved by the findings and

decision” rendered during administrative proceedings to “bring a civil action” in state or federal

court without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2). The reviewing court

“shall receive the records of the administrative proceedings; shall hear additional evidence at the

request of a party; and, basing its decision on the preponderance of the evidence, shall grant such

relief as the court determines is appropriate.” § 1415(i)(2)(C). In a review of a Hearing Officer

Decision (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 that a court upsetting the officer’s decision must at least explain its basis

for doing so.’” Reid, 401 F.3d at 521 (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.

Cir. 1989)).



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       The Supreme Court has held that IDEA’s preponderance-of-the-evidence standard of

review does not authorize unfettered de novo review. See Rowley, 458 U.S. at 206 (“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,” id., and “‘[f]actual findings from the administrative proceedings are

to be considered prima facie correct.’” Roark ex rel. Roark v. District of Columbia, 460 F. Supp.

2d 32, 38 (D.D.C. 2006) (quoting S.H. v. State-Operated Sch. Dist. of the City of Newark, 336

F.3d 260, 270 (3d Cir. 2003)). The statute, however, also suggests “less deference than is

conventional in administrative proceedings,” Reid, 401 F.3d at 521, since the district court is

allowed to hear additional evidence at the request of the party. See § 1415(i)(2)(C)(ii). When no

additional evidence is introduced in a civil suit seeking review of a HOD, a motion for summary

judgment operates as a motion for judgment based on the evidence comprising the record.

District of Columbia v. Ramirez, 377 F. Supp. 2d 63, 67 (D.D.C. 2005).

       B.      IEP Benefits

       The Supreme Court explained in Rowley that “a court’s inquiry . . . is twofold. First, has

the State complied with the procedures set forth in the Act? And second, is the individualized

educational program developed through the Act’s procedures reasonably calculated to enable the

child to receive educational benefits?” 458 U.S. at 206-07 (footnote and internal footnote

omitted). As the Report notes, Plaintiff has not raised a procedural objection, instead focusing

her inquiry on the second prong. See Report at 15.

       In conducting the analysis here, it is important to bear in mind precisely what Plaintiff’s

challenge is. As her Due Process Complaint Notice states, the only issue raised is this: “DCPS



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Denied the Student with [sic] a Free and Appropriate Public Education by Failing to Provide the

Student with his Recommended Assistive Technology Equipment as Part of his educational

program.” Administrative Record (A.R.) at 101. This, too, was all that the Hearing Officer

focused on: “The sole issue in the complaint is whether DCPS has denied the student FAPE by

failing to provide the student with a lap top computer and educational software recommended in

the assistive technology assessment.” Id. at 5.

       The Report first determined that “the specialized instruction and related services provided

to H.S. through his IEP were reasonably calculated to enable H.S. to receive educational

benefits, as he made progress under his IEP without the recommended assistive technology.”

Report at 14. Plaintiff in her Objections argues that H.S.’s progress was minimal and that he

“demonstrated only three months growth in a years’ [sic] time.” Obj. at 5. Both the Report and

the Objections thus focus on H.S.’s progress, which is consistent with a yardstick used by other

courts in this District. See, e.g., Roark , 460 F. Supp. 2d at 44 (“Academic success is an

important factor in ‘determining whether an IEP is reasonably calculated to provide education

benefits.’”) (citing Berger v. Medina City School Dist., 348 F.3d 513, 522 (6th Cir. 2003); Hunter

v. District of Columbia, 2008 WL 4307492, at *9 (D.D.C. 2008) (citing cases with same

holding).

       There is no dispute that from July 2009 to June 2010, H.S.’s reading score improved from

54-65, which is a grade-equivalent increase from 2.4 to 2.7 and an age-equivalent increase from

7 years 8 months to 8 years 2 months. See Report at 15-16. (The hearing officer, both parties

and the Report agree, made a serious error when he misinterpreted the age as grade and found

reading scores had reached 8th-grade level. Id. at 16.) H.S.’s math scores similarly increased

from October 2009 to June 2010 from a raw score of 63 to 68, which translates to grade-



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equivalent increases in three areas of 2.7 to 3.1, 2.6 to 4.0, and 2.4 to 2.8. Id. at 17. These are

concrete advances. Of equal significance, the sole witness at the administrative hearing, H.S.’s

special education teacher Erica Harris, testified without rebuttal that H.S. is making progress in

his IEP goals, that he is now “comfortable with reading in small group settings,” he is

“show[ing] great progress” in reading initiative, “he has made progress in decoding,” although

his progress is “minimal” in reading comprehension, and he has “made a lot of progress and

growth” in math. Hrg. Tr. at 28-33. Finally, as Harris noted, it was not realistic to expect major

growth, but rather to seek growth of 1 to 1.5 grade levels. Id. at 22. The increases in the testing

scores, accompanied by his other development, therefore, demonstrate that H.S.’s academic

progress has not been de minimis. This is particularly true, when measured against H.S.’s

potential for growth. See Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 185

(3d Cir. 1988) (“Obviously, the question whether benefit is de minimis must be gauged in

relation to the child’s potential.”). The Report reached this same conclusion. See Report at 18.

       The Court, therefore, believes the Report was correct when it determined that H.S.’s

“current academic program has clearly conferred some educational benefit upon him, and the

record shows that H.S. has made progress under his IEP without the recommended AT [assistive

technology].” Report at 18.

       Aside from H.S.’s academic progress, there is a second, independent reason to uphold the

HOD. In Rowley, the Supreme Court held that the FAPE requirement is satisfied “by providing

personalized instruction with sufficient support services to permit the child to benefit

educationally from that instruction.” 458 U.S. at 203. The Supreme Court further held that the

precursor to IDEA did not require states to maximize the potential of handicapped students, and

that in light of finding that the deaf child at issue was receiving significant educational benefit



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and related services that were calculated to meet her educational needs, the [IDEA precursor] did

not require the school system to provide the additional service requested by the plaintiff in that

case. Id. at 198, 203, 210. The Supreme Court thus held that the earlier statute required that a

school system provide only the “basic floor opportunity.” Id. at 201; but see Deal v. Hamilton

County Bd. of Educ., 392 F.3d 840, 862 (6th Cir. 2004) (modifying the standard to require

school systems to provide a “meaningful educational benefit”); T.R. ex rel. N.R. v. Kingwood

Township Bd. of Educ., 205 F.3d 572, 577 (3d. Cir. 2000) (same). This is also a point the

Report discusses. See Report at 14-15.

       Here H.S. received a great deal more than a “basic floor opportunity”; indeed, he

received a meaningful education benefit. H.S. is enrolled at a private school at DCPS expense

and receives 28.5 hours per week of specialized instruction, including one hour per week of

speech-and-language therapy, and 30 minutes per week of occupational therapy. A.R. at 6. In

addition, he has daily access in the classroom to a computer, a calculator, highlighters, and sticky

notes, see Hrg. Tr. at 39, all of which were recommended in the Assistive Technology

Evaluation. A.R. at 53. He also could use (and take home) a Fusion Writer to assist in word

processing, typing, and proofreading, see Hrg. Tr. at 40, and the school was in the process of

installing Read Outloud and Draft Builder software, id. at 45, both of which were recommended

by the Evaluation. A.R. at 52-54. While it is certainly understandable that H.S.’s mother wants

to provide him every possible educational opportunity, DCPS is not required to fund services

that go considerably beyond the “basic floor opportunity.” The Court cannot conclude that,

given all of this technological assistance, H.S. was denied a FAPE here because DCPS did not

also provide him with a laptop or other software to take home.




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II.    Conclusion

       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: March 6, 2011




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