UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FAITH GASTON, et al., )
)
Plaintiffs, )
)
v. ) Civil Case No. 18-1703 (RJL)
)
DISTRICT OF COLUMBIA, )
) FILED
Defendant.
) AUG -5 2019
Clerk, U.S. District & Bankruptcy
us) Courts for the District of Columbia
MEMORANDUM OPINION

 

(August Z&, 2019) [Dkt. ## 10, 11]

Faith Gaston and her minor child B.G. (collectively, “plaintiffs”) brought this action
against the District of Columbia (“‘District” or “defendant”) for injunctive and declaratory
relief under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seg. See
Compl. [Dkt. # 1]. Plaintiffs claim that the District violated the IDEA by denying B.G. a
free appropriate public education when it failed to provide her with an appropriate
individual educational program during the 2017—18 academic year. See id. at ¥ 1.

Pending before me are the parties’ crosman for summary judgment. See
[Dkt. ## 10, 11]. Upon consideration of the briefing, the relevant law, and the entire record
herein, and for the reasons stated below, plaintiffs’ motion for summary judgment is

GRANTED and defendant’s cross-motion for summary judgment is DENIED.
BACKGROUND
B.G. is a minor child eligible to receive special education and related services under
the Individuals with Disabilities Education Act (“IDEA”) as a student with a disability.
_ See 20 U.S.C. §§ 1400 et. seg. Defendant is a municipal corporation that receives federal
funds pursuant to the IDEA and is obligated to comply with the IDEA. See id. §§ 1411,
1412(a)(1)(A).

A. Statutory Background

The IDEA provides that states and territories, including defendant, that receive
federal educational assistance must establish “policies and procedures to ensure,” among
other things, that a free appropriate public education (“FAPE”) is available to disabled
children. See id. § 1412(a)(1)(A). In order to provide such children with a FAPE, a school
- district must create and implement an individualized education plan (“IEP”), “which 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) (quoting Honig v. Doe, 484 U.S. 305, 311
(1988)). An IEP is developed through “meetings with a representative of the school
district, teachers, parents or guardians, and the child if appropriate.” Honig, 484 U.S. at
311. Among other things, it “lays out the specialized educational services the child will
require to meet” the goals that the team establishes for him or her. /d.

Under the IDEA, a parent of a disabled child who is dissatisfied with a school
district’s “provision of a [FAPE] to such child,” 20 U.S.C. § 1415(b)(6), may present their
arguments in an “impartial due process hearing,” id. § 1415(f). At the hearing, the parties
are permitted to put on evidence and expert testimony about the child’s educational and

Z
functional needs. /d. § 1415(f), (h). An independent hearing officer will then consider the
evidence presented and issue a “determination of whether the child received a [FAPE].”
Id. § 1415(f)(3)(E). A party aggrieved by the hearing officer’s determination may bring a
civil action in state or federal court. /d. § 1415(1)(2).

B. Factual Background

B.G. is a fourteen-year-old female student, a resident of the District of Columbia,
and the adopted child of Ms. Gaston. AR5, 321, 57 1-74." B.G. faced a number of serious
hardships as a young child, including in utero exposure to drugs and alcohol as well as
physical abuse and introduction to dangerous and violent situations. AR84. Perhaps
consequently, B.G.’s childhood and adolescence have been marked by a longstanding and
well-documented history of academic and behavioral challenges. AR6, 62-82, 96-109,
168-82, 579-81. In the fourth grade, B.G. was formally diagnosed with attention deficit
hyperactive disorder (“ADHD”). AR171. She was enrolled in private schools through the
seventh grade but was removed during the 2016-2017 school year after an altercation with
other students. AR63, 93, 171.

In 2016, while still in private school, B.G. was referred to the District of Columbia
Public Schools (“DCPS”) for special education testing. At that point, B.G. was twelve
years old and enrolled as a seventh grader at DuPont Park Adventist School. AR51. DCPS

convened a multidisciplinary team (“DCPS team”) meeting on October 18, 2016 to discuss

 

' The District submitted a record of the administrative proceedings that have taken
place in this matter. See Administrative Record [Dkt. ## 8, 9]. Specific pages in the
administrative record are cited hereinas“AR __.”

3
B.G.’s circumstances and determine how to move forward. AR6, 51, 54, 62. B.G. was
referred for an initial psychological and educational Bcieeion: which DCPS psychologist
Dr. Leah Nathan prepared on January 26, 2017. AR62. In the course of her evaluation,
Dr. Nathan interviewed, among others, B.G.’s teachers, who reported that B.G. struggled
with basic computation and reading skills and that she frequently acted out in negative
ways. AR64—65. Dr. Nathan also performed a series of tests; B.G. measured poorly in
verbal seinen: fluid reasoning, and behavioral Sheionine AR65-—77. Dr. Nathan
opined that based on B.G.’s ADHD and her history of academic and behavioral problems,
B.G. appeared to meet the criteria for classification as a student with an “other health
impairment.” AR77. Dr. Nathan recommended that B.G. receive, among other things, a
behavior intervention plan and counseling. AR81.

On February 23, 2017, the DCPS team met to review and discuss Dr. Nathan’s
report. AR89. Consistent with Dr. Nathan’s recommendations, the team classified B.G.
as “other health impairment” based on her ADHD and determined that B.G. was eligible
for special education services. AR6, 90. The team also decided that a draft IEP should be
developed for B.G. and reviewed in March 2017. AR90. A few weeks later, B.G. was
involved in a physical altercation with other students and transferred from DuPont
Adventist to the public Kramer Middle School. AR93, eae

The DCPS team met again on March 24, 2017 to review B.G.’s IEP. AR123. The
March 2017 IEP called for B.G. to receive ten hours per week of specialized instruction
and three hours per month of behavioral support services, both within the general education

setting. AR118. Notwithstanding the IEP, B.G. ended the 2016-2017 academic year with

4
poor grades, including a D in English, a D+ in Réaait Support, and an F in Science.
AR159-60.

B.G. continued her enrollment in Kramer for the 2017—2018 school year. On July
28, 2017, independent psychologist Dr. Natasha Nelson conducted a comprehensive
psychological evaluation of B.G., which Dr. Nelson updated on September 25, 2017.
AR168. Dr. Nelson found that B.G., who was set to sine the eighth grade, was reading at
the third-grade level and writing at the fifth-grade level, and that her math skills were at
the fourth-grade level. AR173—74. Dr. Nelson observed that B.G. “appear[ed] to suffer
from affective disorder that is rooted in depression”; she diagnosed B.G. with an
unspecified depressive disorder (in addition to her preexisting ADHD diagnosis). AR177—
78. Based on these diagnoses, Dr. Nelson recommended fh together with B.G.’s “other
health impairment” classification for ADHD, B.G. “be classified under the special
education category of emotional disturbance.” AR178.” Dr. Nelson further recommended
that B.G. receive fifteen hours per week of “pull out” special education instruction outside
of the general education setting in reading and math as well as “inclusion supports” in all
of B.G.’s other academic classes. AR178. In this sautbke by “inclusion supports”
Dr. Nelson meant that a special education teacher would work with B.G. in her general

education classroom on all subjects except reading and math. ARS501. Dr. Nelson also

 

? A DCPS psychologist reviewed Dr. Nelson’s report in October 2017 and disagreed
with Dr. Nelson’s recommendation that B.G. be classified as having an emotional
disturbance. AR202.
recommended that B.G. receive one hour per week of counseling, a functional behavioral
assessment, a behavior intervention plan, and extended school year services. AR at 179.

B.G.’s academic and behavioral performance continued to deteriorate during the
2017-2018 school year at Kramer. In early September 2017, B.G. was involved in a violent
altercation with other students. AR163, 165. On October 16, 2017, B.G. received her first
_ term report card, which reflected grades of F in Math, Science, English, and her Reading
Workshop. AR194. Two days later, social worker Camilla Smith prepared a functional
behavior assessment of B.G. AR203. In her report, social worker Smith noted that B.G.’s
~ behavioral problems were impeding her academic progress, that she disengaged in the
classroom, that she frequently left the classroom for long periods of time, and that during
the first two months of the 2017-2018 school year B.G. had accumulated nineteen
disciplinary referrals. AR203—08. The assessment also summarized interviews with
B.G.’s teachers—each of whom stated that B.G. continued to struggle academically and
| behaviorally—and recounted classroom observations, which showed B.G. sleeping during
class and otherwise being disruptive. AR207—08. Over the course of “three formal and
one informal observations,” social worker Smith wrote that B.G. “was appropriate and
engaged 35%,” “inattentive 25%,” and “academically disengaged 40%” of the total time
of observation. AR208. A behavior intervention plan was developed for B.G. on the same
day as the functional behavior assessment. AR211.

Just one week later, on October 25, 2017, the DCPS team met to review and revise
B.G.’s March 2017 IEP as necessary. AR218. During the meeting, a Kramer assistant

principal, Jacqueline Walters, expressed the school’s view that because B.G.’s functional

6
behavior assessment and behavior intervention plan “were just developed,” the school
“need[ed] an opportunity to implement [them] and monitor [B.G.’s] progress.” AR219.
- Plaintiffs disagreed, stating that B.G. needed to be transferred from Kramer to a full-time
therapeutic setting. AR219; see also AR226 (November 28, 2017 email from plaintiffs’
counsel to Kramer “again requesting a change in location of services”). The DCPS team
made no changes to B.G.’s March 2017 IEP.

The DCPS team met again on December 6, 2017 to review B.G.’s IEP. AR239-50,
- 253. The decline in B.G.’s academic performance and behavior over the intervening
months had been dramatic; B.G. was now failing all of her classes except music. AR253,
261-62. The DCPS team reviewed reports from B.G.’s teachers, who commented that she
was not doing her homework and lacked initiative, that she was coming late to class, and
that she was engaging in horseplay. AR253. During the meeting, social worker Smith
observed that B.G. “seems to be declining,” although she and others noted that B.G.
performed well in one-on-one settings. AR254. Plaintiffs’ counsel again stated that B.G.
“needs a therapeutic day school.” AR253. Dr. Wilma Gaines, an educational advocate for
B.G., asked if B.G. could receive “specialized instruction on a full time basis.” AR254.
The DCPS team rejected those suggestions and revised B.G.’s IEP to add time outside of
- the general education setting, including ten hours per week of specialized instruction and
two hours per month of behavioral support services. AR247—49.

Approximately one month later, in January 2018, B.G. was referred for classroom
observation to “assist[] the [DCPS] Team in determining the appropriate educational

planning for this student.” AR283. In two separate observations, B.G. was seen engaging

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in a variety of inappropriate behaviors, including walking in the hallways and having to be
escorted back by security, randomly yelling out “I hate this class,” and walking around the
classroom meddling with peers. AR285. B.G. was also tardy arriving to the classroom
and pretended to sleep during class. AR286. The observer concluded that B.G. would
“benefit from a more restrictive school setting where [her] academic and behavioral needs
can be addressed.” AR289.

On January 31, 2018, plaintiffs filed an administrative due process complaint
alleging that the December 2017 revision to B.G.’s IEP “ha[d] not been sufficient to enable
B.G. to access her education.” AR293, 307. The complaint further alleged that DCPS had
known since September 2017 that B.G. needed “a higher level of restrictiveness” to address
her “behavioral regression” and that “[a] minimal increase in hours does not provide B.G.
with the setting that she needs.” AR308. Plaintiffs contended that DCPS denied B.G. a
FAPE by failing to timely review and revise B.G.’s IEP during the 2017—2018 school year
to provide for a sufficiently restrictive setting and an adequate increase in behavioral
supports in light of B.G.’s regression. AR at 309-11.

On February 2, 2018, the DCPS team met to review the January classroom
observations and revise B.G.’s IEP as necessary. AR318. The team revised B.G.’s IEP to
provide for 27 hours per week of specialized instruction and four hours per month of
behavioral support services, all outside of the general education setting. AR329. On
February 14, 2018, DCPS informed plaintiffs that B.G. would be placed in a behavior and

education support program at Kramer. AR357.

 
An administrative due process hearing was held on April 9, 2018. AR439. The
“issue to be determined” was whether DCPS had denied B.G. a FAPE by its alleged failure
“to provide an appropriate IEP and/or placement and/or location of services for 2017/18
with an IEP developed on 3/24/17 and amended on 12/6/17, because [B.G.] needed a full-
time IEP, a sufficiently restrictive setting, increased behavioral supports and proper
classification due to academic regression and severe behaviors.” AR4; see also AR366.

Plaintiffs presented four witnesses at the hearing, including Ms. Gaston and two
qualified experts. Dr. Nelson testified as an expert it clinical psychology relating to
children with special needs. AR470. Among other things, Dr. Nelson discussed the
comprehensive psychological evaluation she had performed on B.G. in July 2017 and her
September 2017 recommendations based on that evaluation. AR472-87. Dr. Nelson
testified that she had recommended that B.G. receive (1) fifteen hours per week of
specialized instruction in reading and math, meaning B.G. would be “pulled out of the
general education classroom”; and (2) “inclusion supports” in all other subjects, meaning
B.G. would have “a special ed teacher in her general ed classroom who helps her with her
work for every other subject.” AR501; see also AR484. Dr. Nelson stated that based on
B.G.’s testing performance, she “knew that just having 10 hours of special education
support would not be enough, especially with the se Lineinctinnat component that’s
involved.” AR487. Dr. Nelson viewed “the general education setting [as] inadequate”
because B.G. had “severe problems with tuning out extraneous information” and needed
to be in “a smaller group setting, outside general ed.” AR489. Dr. Nelson testified that

since her July 2017 evaluation, B.G.’s “behaviors [had] escalated,” her “grades [had]

9
dropped,” and “[s]he was skipping classes consistently.” AR488. Accordingly, in
Dr. Nelson’s opinion, her original fifteen-hour per week: recommendation was no longer
adequate because B.G. “need[ed] a full-time special education IEP.” AR488. In
Dr. Nelson’s view, by the time the DCPS team met in December 2017, B.G. “should’ve
had the full-time IEP.” AR490.

Dr. Gaines, B.G.’s education advocate and a participant in B.G.’s IEP process,
testified at the hearing as a qualified expert in special education and IEP development.
_ ARS25—70." Dr. Gaines testified that B.G.’s academic and behavioral performance had
deteriorated over the fall of 2017 and that, “[b]y November 22, 2017, [B.G.] was regressing
and continuing to have trouble with her peer relationshins.” ARS47; see also AR553. Dr.
Gaines noted that between August 21, 2017 and October 13, 2017, B.G. “had a total of 19
disciplinary referrals.” ARS555—56. Dr. Gaines confirmed that at the October 2017
meeting, the DCPS team decided not to revise B.G.’s IEP in accordance with Dr. Nelson’s
recommendations but instead to implement a functional behavior assessment and behavior
intervention plan “and to see how things were going.” ARS60. On December 6, 2017, Dr.
_ Gaines again met with the DCPS team to discuss B.G.’s academic and behavioral decline.
ARS560-61. Dr. Gaines confirmed that B.G. was not given a full-time IEP until February
2018. ARS5S64.

For its part, DCPS presented only one witness during the due process hearing:
Ms. Walters, Kramer’s Assistant Principal of Intervention. AR596. Ms. Walters was
certified as an expert in special education programming and placement. ARS591, 595.

Ms. Walters testified that, from her perspective, B.G.’s behavioral problems, including

10
 

 

physical altercations with other students, were not “necessarily ... attribute[able] to her
disability.” ARS99. Ms. Walters further testified that during the fall of 2017, DCPS
engaged in “a gradual process to try to keep [B.G.] in her least restrictive environment”
because B.G. “wanted to stay in her least restrictive environment.” AR608. In its closing
statement, DCPS emphasized that Dr. Nelson’s September 2017 report had not
recommended that B.G. be placed “in a full-time setting” but instead that she receive fifteen
hours per week of specialized instruction outside of general education and the remainder
in inclusion support. AR658. DCPS acknowledged that an IEP should be “consistently”
revised “based on whatever situation is going on,” but it asserted that B.G.’s IEP team did
not take too long to revise her IEP in this case. AR663.

On April 26, 2018, the independent hearing officer issued his determination, which
concluded that DCPS had acted appropriately with respect to B.G.’s 2017-2018 IEP. AR3.
The hearing officer acknowledged that, as to the specialized instruction component of
B.G.’s IEP, “in retrospect” it was “understanabl[e]” for plaintiffs to “argue that DCPS was
somewhat behind the curve and [B.G.] may have needed support a little sooner than
provided.” AR12-—13. But, the hearing officer explained, “the proper analysis is to
consider the situation prospectively”; “[v]iewed prospectively,” it “was not at all clear” to
DCPS at the time that B.G. “required a full-time IEP, especially when [Dr. Nelson] had
recommended only 15 hours/week outside general education.” AR13. Accordingly, the
hearing officer found reasonable DCPS’s decisions on October 25, 2017 to make no

changes to B.G.’s specialized instruction and on December 6, 2017 to amend B.G.’s

specialized instruction from ten hours per week within general education to add an

1]

 
additional ten hours per week outside of general education. AR12. The hearing officer

reached the same conclusion as to B.G.’s behavior support services, explaining that

“viewed prospectively it was not clear how much [behavior support] would be needed to
meaningfully address [B.G.’s] behavioral issues.” AR13.

On July 20, 2018, plaintiffs brought this action claiming that DCPS denied B.G. a
FAPE by failing to provide her with an appropriate IEP during the 2017-2018 school year.
See Compl. at 9. On December 7, 2018, plaintiffs moved for summary judgment, see PIs.’
Mot. for Summ. J. [Dkt. # 10], and on January 4, 2019, the District filed its cross-motion
for summary judgment, see Def.’s Cross-Mot. for Summ. J. [Dkt. # 11]. Both motions are
now fully briefed and ripe for decision.

LEGAL STANDARD ,

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A court presented with cross-motions
for summary judgment must grant summary judgment only if one of the moving parties is
~ entitled to judgment under the Rule 56 standard. See Citizens for Responsibility & Ethics
in Wash. v. U.S. Dep’t of Justice, 658 F.Supp.2d 217, 224 (D.D.C. 2009).

Under the IDEA, a “party aggrieved by the findings and decision” of the hearing
officer may bring a civil action in federal court. See 20 U.S.C. § 1415(i)(2)(A). The
reviewing court “(i) shall receive the records of the eidaiundve proceedings; (ii) shall

hear additional evidence at the request of a party; and (iii) basing its decision on the

12
 

 

preponderance of the evidence, shall grant such relief as the court determines is
appropriate.” D.R. ex rel. Robinson v. District of Columbia, 637 F.Supp.2d 11, 15-16
(D.C. Cir. 2009) (quoting 20 U.S.C. § 1415(i)(2)(C)). Accordingly, a summary judgment
motion in this context “operates as a motion for judgment based on the evidence
comprising the record and any additional evidence the Court may receive.” N.W. v. District
of Columbia, 253 F.Supp.3d 5, 12 (D.D.C. 2017) (quoting D.R. ex rel. Robinson, 637
F.Supp.2d at 16) (internal quotation marks omitted). . Where, as here, no additional
evidence is introduced, “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, 164 F.Supp.3d 35, 44 (D.D.C. 2016) (quoting Heather. S. v.
Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997)) (alterations omitted). In such cases,
judicial review of a hearing officer’s determination “is not a true summary judgment
procedure. Instead, the district court essentially conduct[s] a bench trial based on a
stipulated record.” L.R.L. ex rel. Lomax v. District of Columbia, 896 F. Supp. 2d 69, 73
(D.D.C. 2012) (internal quotation marks omitted).

A hearing officer’s determination is afforded “less deference than is conventional
in administrative proceedings.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516,
521 (D.C. Cir. 2005) (internal quotation marks and citation omitted). However, although
the reviewing court must “engage in a more rigorous review of the decision below,” it must
be mindful not to “substitute its own view of sound vaducetional policy for that of the
hearing officer.” G.G. ex rel. Gersten v. District of Columbia, 924 F.Supp.2d 273, 278

(D.D.C. 2013) (internal quotation marks omitted). Courts must give “due weight” to the

13

 
 

 

administrative proceedings. Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982).
Nevertheless, a hearing officer determination lacking “reasoned and specific findings
deserves little deference.” Reid, 401 F.3d at 521 (internal quotation marks and citation
omitted); B.D. v. District of Columbia, 817 F.3d 792, 797 (D.C. Cir. 2016). The party
challenging the determination below bears the burden of proof and must “at least take on
the burden of persuading the [C]ourt that the Hearing Officer was wrong.” Reid, 401 F.3d
at 521 (citation omitted).
DISCUSSION

Plaintiffs’ complaint states a single cause of action: that DCPS denied B.G. a FAPE
by failing to provide her with an appropriate IEP during the 2017—2018 school year. See
Compl. at 9. Specifically, plaintiffs claim that the IEP was deficient in the amount of
specialized instruction and behavioral support services that were afforded to B.G. up to
February 2018, when she was placed in a behavior and education support program and her
IEP revised to provide 27 hours per week of specialized instruction and four hours per
month of behavioral support outside of general education. See Pls.” Mot. for Summ. J. at
3-4; AR329, 357.7

As the Supreme Court recently explained, an IEP must be “reasonably calculated to |
enable [the] child to-make progress appropriate in light of the child’s circumstances.”

Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017); see id. at 1001

 

3 Plaintiffs have abandoned their requests below for a revised disability
classification and placement in a therapeutic day school. See Pls.’ Mot. for Summ. J. at
4n.1.

14

 
(“[A]dequacy ... turns on the unique circumstances of the child.”). Determining whether
an IEP is substantively adequate requires a “fact-intensive” inquiry, as “crafting an
appropriate program of education” for a given child entails “the expertise of school
officials” as well as “the input of the child’s parents or guardians.” Jd. at 999. Because
the reviewing court should respect the “expertise and the exercise of judgment by school
authorities,” the inquiry is not whether the IEP is “ideal” but “whether the IEP is
reasonable.” /d. at 999, 10001; see Rowley, 458 U.S. at 206 (court may not “substitute [its]
own notions of sound educational policy for those of the school authorities”). However,
precisely because judicial deference is predicated on relative expertise and judgment, the
“court may fairly expect [school] authorities to be able to offer a cogent and responsive
explanation for their decisions,” and their explanation should show why “the IEP is
reasonably calculated” to ensure that the child “make[s] progress appropriate in light of his
circumstances.” Jd. at 1002.

Plaintiffs challenge the substantive reasonableness of B.G.’s IEP at two discrete
points—October 25 and December 6, 2017—the dates on which the DCPS team met to
review and, if necessary, revise B.G.’s IEP. See Pls.’ Mot. for Summ. J. at 12-17. By a
preponderance, the evidence in the administrative record here shows that at least by
December 6, 2017, the DCPS team had sufficient information to know that merely
adjusting B.G.’s specialized instruction to add ten hours per week outside of general
education was not reasonably calculated to enable B.G. to progress in light of her severe

and steady regression.

15
From B.G.’s initial IEP in March 2017 to the December 2017 team meeting, B.G.
had shown a consistent and troubling decline in academic and behavioral performance.
After finishing the 2016-2017 school year with a failing grade in Science and near-failing
grades in English and Reading Support, AR159-—60, B.G.’s start to the 2017-2018 school
year showed no signs of academic improvement. Quite the opposite, by October 2017 B.G.
was failing Math, Science, English, and a Reading Workshop. AR194. And by December
she was failing all of her classes, save music. AR253, 261-62. More troubling perhaps,
B.G. had been involved in violent altercations and was racking up disciplinary referrals,
and the consistent message from those who interacted with and observed B.G. was that she
was academically disengaged, behaviorally self-destructive, and that there were no
indications that B.G. was going to correct this downward spiral without serious
administrative intervention. While a wait-and-see approach may have been defensible in
October 2017, by December it was evident that B.G. needed more than tinkering at the
margins of her weekly specialized instruction time. See McLean v. District of Columbia,
323 F.Supp.3d 20, 23 (D.D.C. 2018) (remanding for. “hearing officer [to] consider
[student’s] regressive academic performance and behavioral troubles in the fall of 2016
when evaluating whether the” student’s IEP denied him a FAPE).

To DCPS’s credit, it took meaningful action in February 2018 to provide B.G. with
a full-time IEP and place her in a behavior and education support program. See AR329,
357. But a subsequent adequate course of action cannot sanitize a prior inadequate
decision, and the hearing officer erred in so concluding. See AR12 (hearing officer stating

that “[t]he big picture” was DCPS’s progression from the initial IEP “to a full-time IEP in

16
just over 10 months”). Rather, “[t]he 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. v. District of Columbia, 888 F.3d 515, 524 (D.C. Cir.
2018) (emphasis added); id. (reviewing court must “evaluat[e] an IEP as of ‘the time each
IEP was created’” (quoting Endrew F., 137 S.Ct. at 999)). Contrary to the hearing officer’s
determination, it was clear indeed when the DCPS team met in December 2017 that B.G.
needed an intervention comparable to the full-time IEP she would receive just a few months
later. At that time, the members of the DCPS team had before them Dr. Nathan’s
psychological report, Dr. Nelson’s independent evaluation, social worker Smith’s
functional behavior assessment, and all of the teacher interview and observations
summaries contained therein. And if that body of evidence left any doubt, the DCPS team
was also acutely aware of the trends demonstrated in B.G.’s academic report cards and
behavioral incident reports. In fact, the only addition to the record between December
2017 and the following February—aside from the filing of an administrative due process
complaint—was the January 2018 classroom observation report. See AR283. That report
reflected nothing about B.G.’s struggles that was not already documented tenfold in the
existing record. The absence of any new evidence gathered before the team took
appropriate action in February 2018 “sheds light on whether the IEP was objectively
reasonable at the time it was” revised in December 2017. See Z.B., 888 F.3d at 526.
Echoing the hearing officer, see AR12—13, the District counters that it could not

have been expected to provide B.G. with more specialized instruction than B.G.’s own

17
 

 

independent psychologist, Dr. Nelson, had recommended in September 2017—1.e., fifteen
hours per week of specialized reading and math instruction outside of general education
and inclusion supports in all other classes, see Def.’s Cross-Mot. for Summ. J. at 21—22.
Of course, the December 2017 revision to B.G.’s IEP did not adopt Dr. Nelson’s
recommendation in full; it provided only ten hours per week of specialized instruction
outside of general education on top of the preexisting ten hours per week of within-general-
education instruction. See AR247—49. But even if DCPS had “taken the independent
testing recommendations ... more seriously,” Davis v. District of Columbia, 244 F.Supp.3d
27, 51 (D.D.C. 2017), our Circuit Court has cautioned against treating such proposals as
dispositive. Instead, “[a] reviewing court must answer the predicate question whether—
combined with all other relevant data—any assessment parents may have sought and
funded on their own provided a materially accurate and adequate account of the student’s
circumstances.” See Z.B., 888 F.3d at 525.

In this case, while it may be that in October 2017 the DCPS team was not yet in a
position to act on Dr. Nelson’s recommendations, by December it was clear that B.G.’s
circumstances had deteriorated to the point that even those recommendations were no
longer adequate. Dr. Nelson testified as much at the due process hearing. See AR488. The
fact that Dr. Nelson did not amend her independent evaluation to recommend a full-time
IEP did not absolve DCPS of its statutory obligations under the IDEA to recognize the
warning signs in B.G.’s circumstances and revise her IEP accordingly. This is hardly
untrodden ground for DCPS; the school system has considerable experience working with

students whose conditions require the prescription of a full-time IEP. See, e.g., Wade v.

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District of Columbia, 322 F.Supp.3d 123, 132 (D.D.C. 2018) (student’s IEP provided for
27.5 hours per week of specialized instruction outside of general education); Johnson v.
District of Columbia, 962 F.Supp.2d 263, 265 (D.D.C. 2013) (student’s IEP provided for
31 hours per week of specialized instruction outside of general education); G.B. v. District
of Columbia, 78 F.Supp.3d 109, 112 (D.D.C. 2015) (student’s IEP provided for 31 hours
per week of specialized instruction outside of general education). Dr. Nelson’s “belatedly
obtained professional opinion” at the due process hearing supports the conclusion that there
was “a longstanding problem that [the] schools should have but failed to . . . account for”
fully in the preceding months. See Z.B., 888 F.3d at 525.4 One would have hoped that
they had learned this lesson from prior experience.

In sum, DCPS has failed to offer the “cogent and responsive explanation for [its
December 2017] decision[ |” that would entitle it to deference. See Endrew F., 137 S. Ct.
at 1001-02. The preponderance of the evidence available at the time shows that the

December 2017 IEP was not reasonably calculated to enable B.G. to make progress

 

* The District spends a great deal of time arguing, as assistant principal Walters
testified at the hearing, see AR608, that the December 2017 decision was dictated by
DCPS’s adherence to the IDEA’s “least restrictive environment” principle, which required
DCPS to “gradually increase[e] B.G.’s level of services rather than immediately place]
her in a full-time program away from her non-disabled peers.” Def.’s Cross-Mot. for
Summ. J. at 20; see 20 U.S.C. § 1412(a)(5)(A) (“[t]o the maximum extent appropriate,” a
school district’s special education accommodations should take place in the “least
restrictive environment” available). But in cases where “education in regular classes . . .
cannot be achieved satisfactorily,” 20 U.S.C. § 1412(a)(5)(A), “the presumption in favor
of mainstreaming [is] weighed against the importance of providing an appropriate
education to [ ] students” with disabilities, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of
Ed., 546 F.3d 111, 119 (2d Cir. 2008) (citation omitted). Here, by December 2017 that
balance weighed demonstrably in favor of providing B.G. with a full-time IEP.

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appropriate in light of her circumstances, which had deteriorated dramatically and
demonstrably over the preceding months. Accordingly, the December 2017 IEP denied
B.G. a FAPE.°

Plaintiffs seek a specific amount of compensatory education to redress for B.G.’s
denial of aFAPE. See Pls.” Mot. for Summ. J. at 20. Compensatory education is an award
of services “to be provided prospectively to compensate for a past deficient program.”
Reid, 401 F.3d at 522-23. Such an award “involves discretionary, prospective, injunctive
relief crafted by a court to remedy what might be termed an education deficit created by an
educational agency’s failure over a given period of time to provide a FAPE to a student.”
Id. at 523. Nevertheless, under the circumstances the Court concludes that a remand is
more appropriate. See Middleton v. District of Columbia, 312 F.Supp.3d 113, 153 (D.D.C.
2018) (“district courts in this jurisdiction frequently remand for such a determination”).
The hearing officer in this case “is better situated than this Court to take additional
evidence, to make further factual findings, and to evaluate [B.G.’s] current educational
needs in designing the appropriate relief.” Jd. As such, the Court remands this matter to
- the hearing officer with instructions to “craft an award that ‘aim[s] to place [B.G.] in the
same place [she] would have occupied but for the school district’s violation|] of [the]
IDEA.’” Henry v. District of Columbia, 750 F.Supp.2d 94, 99 (D.D.C. 2010) (quoting

Reid, 401 F.3d at 518).

 

> Because the December 2017 IEP was substantively inadequate in the amount of
specialized instruction afforded to B.G., the Court needs not definitively resolve plaintiffs’
remaining claims regarding the adequacy of the October 2017 IEP or the amount of
behavior support services provided throughout the fall of 2017.

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CONCLUSION
For the foregoing reasons, plaintiffs’ motion for summary judgment is GRANTED
and defendant’s motion for summary judgment is DENIED. A separate order consistent

with this decision accompanies this Memorandum Opinion.

|

Ce
United States District Judge

 

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