                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
__________________________________
                                    )
EDITH AIKENS, et al.,               )
                                    )
            Plaintiffs,             )
                                    )
      v.                            )    Civil Action No. 12-553 (RMC)
                                    )
DISTRICT OF COLUMBIA,               )
                                    )
            Defendant.              )
_________________________________   )

                                            OPINION

               Plaintiffs Edith Aikens and her minor daughter, T.A., filed this suit, alleging that

Defendant District of Columbia denied T.A. a free appropriate public education in violation of

the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq.,

when the District of Columbia moved T.A. from Transition Academy at Shadd to Ballou Arts

and Technology Senior High School without prior written notification to Ms. Aikens or her

involvement in the decision. The District of Columbia responds that such procedures were not

required because T.A.’s move from Shadd to Ballou did not constitute a change in educational

placement. The Court agrees with the decision of the Hearing Officer that the schools are not

substantially and materially different, and thus no change in educational placement occurred. As

a result, T.A. was not denied a FAPE by any absence of procedural safeguards. The Court will

grant the District’s motion for summary judgment.

                                            I. FACTS

               A. Statutory Framework

               The Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”)

ensures that “all children with disabilities have available to them a free appropriate public


                                                 1
education that emphasizes special education and related services designed to meet their unique

needs and prepare them for further education, employment, and independent living.” 20 U.S.C.

§ 1400(d)(1)(A). In designing a free appropriate public education (“FAPE”) for students with

disabilities, the child’s parents, teachers, school officials, and other professionals collaborate in a

“multi-disciplinary team” to develop an individualized educational program (“IEP”) to meet the

child's unique needs. See id. § 1414(d)(1)(B). Local school officials utilize the IEP to assess the

student’s needs and assign a commensurate learning environment. See id. § 1414(d)(1)(A).

               While the District of Columbia is required to provide disabled students a FAPE, it

is not required to, and does not, guarantee any particular outcome or any particular level of

academic success. See Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S.

176, 192 (1982); Dorros v. District of Columbia, 510 F. Supp. 2d 97, 100 (D.D.C. 2007). If the

parent objects to the identification, evaluation, or educational placement of a disabled child, or

whether she is receiving a FAPE, 20 U.S.C. § 1415(b)(6), the parent may seek an “impartial due

process hearing” before a D.C. Hearing Officer, who issues a Hearing Officer Determination

(“HOD”). Id. § 1415(f)(1)(A). If the parent is dissatisfied with the HOD, she may appeal to a

state court or a federal district court. See id. § 1415(i)(2)(A).

               B. Factual Background

               Plaintiff T.A. was a seventeen-year-old student at the time of the relevant events.

AR 13. T.A. had an emotional disturbance and was therefore disabled and eligible for special

education services under the IDEA. Id. In February 2011, a multi-disciplinary team, which

included T.A.’s mother, considered and revised an IEP for T.A. See 34 C.F.R. §§ 300.116, .327.

The revised IEP required T.A. to receive specialized instruction outside a general education

setting for 31.5 hours per week, four hours per month of behavioral support services, and speech



                                                   2
and language therapy for 30 minutes per month. AR 61. T.A.’s IEP also set academic,

communication, and behavioral goals. Id. at 56-60.

               During the 2010-2011 school year, T.A. was placed at the Transition Academy at

Shadd (“Shadd”).1 At the end of the 2010-2011 school year, Shadd was closed and moved to the

Ballou Senior High School building.2 AR 13. It is undisputed that Ms. Aikens received notice

that Shadd was closing at the end of the 2010-2011 school year. Pl. Statement Material Facts

(“Pl. SMF”) [Dkt. 10] ¶ 5. The parties dispute, however, whether Ms. Aikens was notified that

Shadd would be moving to Ballou and that T.A. was to start school at BAT in the fall. Compare

Pl. SMF ¶¶ 6-8, 10-11, 16 (asserting that no information was provided to Ms. Aikens regarding

where D.C. Public Schools (“DCPS”) had placed T.A.), with Def. Cross-Mot. for Summ. J.

(“Def. Mot.”) [Dkt. 11] at 5 (asserting that Plaintiffs “became aware that . . . the special

education program at Shadd would be moving to Ballou”) and Def. Reply [Dkt. 15] at 4 (“There

is additional evidence that Plaintiffs received the proper notification from DCPS that Shadd was

closing and its special education students were being relocated to Ballou.”).

               In a letter dated August 22, 2011, Ms. Aikens informed DCPS of her decision to

place T.A. at High Road of D.C. Upper School (“High Road”). AR 214-15. High Road is “a

non-public separate day-school for children with social/emotional disabilities.” Id. 16. DCPS

responded within 24 hours to Ms. Aikens’s letter, stating that it would not reimburse her for



1
  Ms. Aikens challenged T.A.’s placement at Shadd by filing an administrative complaint on
April 22, 2011. AR 195. A HOD dismissed this complaint on June 6, 2011, with prejudice. Id.
at 206. The Hearing Officer found that Shadd was an appropriate placement for T.A. because it
could implement her IEP. Id. at 203-05.
2
 The name of the school was changed from “Transition Academy at Ballou” to “Ballou Arts and
Technology Academy” when the new school year began. AR 16. The Court will refer to the
program after it moved to Ballou as “BAT.”

                                                  3
T.A.’s placement at High Road because it believed that BAT could provide T.A. with a FAPE.

Id. at 249. Ms. Aikens, however, sent T.A. to High Road when school opened.

              On November 10, 2011, Ms. Aikens filed an administrative complaint challenging

T.A.’s placement at BAT. After a hearing on January 6, 2012, a HOD dismissed the complaint

with prejudice on January 12, 2012. The HOD considered two issues: (1) whether the change

from Shadd to BAT constituted a change of placement and if so, whether T.A. was denied a

FAPE by DCPS’s failure to notify Ms. Aikens or involve her in the placement decision, and (2)

if T.A. was denied a FAPE, whether Ms. Aikens was entitled to reimbursement for T.A.’s tuition

at High Road. AR 9. The Hearing Officer made the following findings of fact regarding Shadd:

              Students at Transition Academy were taught by special education
              and regular education teachers. There were six licensed social
              workers on staff and one school psychologist. There were seven to
              eight behavior technicians who were all trained in therapeutic
              crisis intervention (TCI). There were typically 60 students at
              Transition Academy of a capacity of 90 to 110. The school served
              students with behavior and social/emotional needs in grades nine
              through 12. Positive intervention strategies and other supports
              were used with the student at Transition Academy. The School
              had a designated room for therapeutic intervention for students in
              crisis or other disciplinary or social/emotional needs. The School
              was housed in a renovated elementary school with no other school
              programs and some administrative offices.

AR 13-14. The Hearing Officer made the following findings of fact regarding BAT:

              BAT is a secondary school program serving students with
              disabilities outside of the general education setting. The school is
              housed in the Ballou Senior High School and is maintained
              separately from the high school with security guards between the
              schools. Students at BAT may only interact with non-disabled
              peers when entering or leaving the building or if their IEPs require
              they be in a less restrictive setting for part of the day. All students
              at BAT are supposed to be involved in and progressing in the
              general education curriculum. Additionally, there are remedial
              courses and vocational courses for students. Students do not attend
                                                4
                classes with non-disabled peers unless their IEPs permit, and
                classes are provided with specialized instruction as necessary,
                including electives. The students are provided behavioral and
                social/emotional supports including the use of behavior technicians
                and a special intervention room for processing with students.
                There [are] 31.5 hours per week of school time at BAT, but only
                28 hours of instructional time for the normal school week. There
                are currently 90 students enrolled at BAT. Not all teachers have
                District of Columbia teaching licenses but they do have licenses
                from other states. Some classes are only taught by a special
                education teacher and some are co-taught with a regular education
                teacher and special education teacher. There are four social
                workers at BAT, four behavioral technicians, and a school
                psychologist who serves both BAT and Ballou Senior High
                School. The students are on a “block schedule” at BAT, requiring
                alternate days of classes and classes are 80 minutes long.

Id. at 16-17.

                In comparing the schools, the Hearing Officer did not find any of the differences

between the two to be material or substantial. The Hearing Officer therefore found that no

change in placement had occurred when T.A. moved from Shadd to BAT. Id. at 20.

Accordingly, the Hearing Officer concluded that there was no violation or denial of a FAPE

when the move of T.A. to BAT did not involve Ms. Aikens and that “prior written notice under

IDEA was not required.” Id. at 21.

                The Complaint was filed on April 10, 2012 and appeals the HOD issued on

January 12, 2012. Plaintiffs filed a motion for summary judgment on November 1, 2012. The

District of Columbia opposed the motion and cross-moved for summary judgment on December

21, 2012. Both motions are fully briefed and ready for decision.




                                                 5
                                   II. LEGAL STANDARD

               Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “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); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In evaluating a hearing officer's decision in an

IDEA case such as this one, a court reviews the administrative record, may hear additional

evidence, and bases its decision on the preponderance of the evidence, granting such relief as

deemed appropriate. 20 U.S.C. § 1415(i)(2)(C). “Where, as here, neither party seeks to present

additional evidence, a motion for summary judgment operates as a motion for judgment based on

the evidence compromising the record.” Parker v. Friendship Edison Public Charter Sch., 577

F. Supp. 2d. 68, 72 (D.D.C. 2008) (internal quotation marks and citation omitted).

               The burden of proof is with the party challenging the administrative

determination, who must “at least take on the burden of persuading the court that the hearing

officer was wrong.” Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting

Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1989) (internal quotation marks omitted)).

The court gives “due weight” to the decision of the hearing officer and does not substitute its

own view of sound educational policy for that of the hearing officer. See Rowley, 458 U.S. at

206.

                                        III. ANALYSIS

               Ms. Aikens and T.A. claim that T.A.’s move from Shadd to BAT constituted a

change in T.A.’s educational placement. Thus, they contend, DCPS’s failure to involve Ms.

Aikens in the decision and failure to provide her with prior written notice of the change resulted

in a denial of T.A.’s right to a FAPE. The IDEA requires parental involvement regarding any

decisions “on the educational placement of their child.” 20 U.S.C. § 1414(e); see also 34 C.F.R.

                                                 6
§ 300.116(a)(1) (requiring the public agency to ensure that the placement decision is made by a

group of people to include the parents); id. § 300.327 (same). Additionally, the IDEA requires

the provision of written prior notice to a parent whenever a local educational agency changes the

child’s “educational placement.” 20 U.S.C. § 1415(b)(3); 34 C.F.R. § 300.503(a)(1). If an

agency fails to follow these procedural safeguards when applicable, the agency has failed in its

statutory obligation to provide a FAPE. See 20 U.S.C. § 1415(a).

               The parties dispute whether and to what extent prior written notice was provided

to Ms. Aikens regarding the move of T.A. to BAT. The District of Columbia does not dispute,

however, that Ms. Aikens was not involved in any decision to move T.A. to BAT. The critical

inquiry as to either claim is whether T.A.’s move from Shadd to BAT constituted a change in her

“educational placement,” such that DCPS was required to take certain procedural steps prior to

making any change.

               A few courts have considered the meaning of “educational placement” under the

IDEA. Concerned Parents v. New York City Board of Education, 629 F.2d 751, 756 (2d. Cir.

1980), held that “the term ‘educational placement’ refers only to the general educational program

in which the handicapped child is placed and not to all the various adjustments in that program

that the educational agency, in the traditional exercise of its discretion, may determine to be

necessary.” See also White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003)

(“‘Educational placement,’ as used in the IDEA, means educational program—not the particular

institution where that program is implemented.”).    Consistent with its prior ruling, the Second

Circuit more recently explained that educational placement refers to “the classes, individualized

attention and additional services a child will receive—rather than the ‘bricks and mortar’ of the

specific school.” T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009).



                                                 7
               This Circuit in Lunceford v. District of Columbia Board of Education, 745 F.2d

1577, 1582 (D.C. Cir. 1984), recognized that “[t]he leading precedent on what type of change

constitutes a change in educational placement is Concerned Parents v. New York City Board of

Education” and explained that a change in educational placement occurs only when there is a

change to the general educational program. Building upon the reasoning in Concerned Parents,

this Circuit required the appellee in Lunceford to “identify, at a minimum, a fundamental change

in, or elimination of [,] a basic element of the education program in order for the change to

qualify as a change in educational placement.” Lunceford, 745 F.2d at 1582; see also Assistance

to States for the Education of Children With Disabilities and Preschool Grants for Children With

Disabilities, 71 Fed. Reg. 46,540, 46,589 (Aug. 14, 2006) (codified at 34 C.F.R. Parts 300 and

301) (“[I]t is the [U.S.] Department [of Education]’s longstanding position that maintaining a

child’s placement in an educational program that is substantially and materially similar to the

former placement is not a change in placement.” (emphasis added)).

               Ms. Aikens and T.A. concede that a student’s educational placement is not

“equivalent to the physical site location” and assert that they are not claiming entitlement to

relief “because the Student’s physical location changed” but instead that “substantial elements of

his [sic] educational setting changed.” Pl. Opp’n [Dkt. 13] at 3. Ms. Aikens and T.A. assert that

the differences between Shadd and BAT were “sufficient for the change to constitute a change of

placement, for which parental participation was required.” Pl. Mot. for Summ. J. (“Pl. Mot.”)

[Dkt. 10] at 9. They emphasize differences in “the amount of contact they offered with disabled

peers, the disabilities served, and the availability of a crisis center for the students.” Id. The

District of Columbia responds that such differences are only “presumed” and do not exist in fact.

Def. Mot. at 13. In the alternative, the District argues that “even if these cosmetic differences



                                                  8
did exist, they are irrelevant because they have nothing to do with the services to be provided

pursuant to the February 18, 2011 IEP.” Id.

               The Hearing Officer considered the differences identified by Ms. Aikens between

Shadd and BAT. He recognized that BAT is housed within a mainstream high school while

Shadd had its own building. The Hearing Officer determined that this difference was

inconsequential, however, because BAT and Ballou “do not share the same space within the

building and access between the two schools is controlled.” AR 19. Addressing whether the

crisis intervention resources offered by Shadd and BAT and the focuses of the two schools

differed significantly, as Ms. Aikens claimed, the Hearing Officer found that both schools

“provide strong behavioral and social/emotional support for students and utilize a special space

for behavior management.” Id. He added that any particular differences in the behavior

management spaces were not “material or substantial.” Id. Finally to the argument that the

amount of classroom programming offered at BAT is less than that offered by Shadd, the

Hearing Officer reasoned that BAT could simply provide additional specialized instruction

before or after the normal school day to ensure that T.A.’s IEP is implemented.3 Id. at 20.

               The Court finds no reason to quarrel with the judgment of the Hearing Officer that

the educational programs for T.A. at Shadd and BAT were not “materially or substantially”

different and that no change in educational placement occurred. See id. Ms. Aikens and T.A.

have not shown that “the [H]earing [O]fficer was wrong,” Reid, 401 F.3d at 521, because they

neither offer nor point to any evidence in the record that would undermine his factual or legal

conclusions. None of the variations between Shadd and BAT rises to the level of substantially

and materially different.
3
 Similarly, the Court concludes that BAT’s “block schedule” does not make its educational
program substantially and materially different from the one offered at Shadd.

                                                 9
               Further, Ms. Aikens and T.A. have not shown that “a fundamental change in” or

an “elimination of” any basic element of T.A.’s educational program occurred when T.A. was

moved from Shadd to BAT. See Lunceford, 745 F.2d at 1582. Rather, T.A. would have

continued to experience the same general educational program at BAT as she experienced at

Shadd—specialized instruction outside of the general educational setting by certified teachers

with a support staff of social workers, behavioral technicians, and a school psychologist. In the

absence of a “fundamental change in” or “elimination of” a basic element of T.A.’s educational

program at Shadd when it moved to BAT, there has been no change in educational placement.

Without such a change, DCPS was not required to provide prior written notice or involve Ms.

Aikens in the decision to move T.A. from Shadd to BAT. T.A. was not denied a FAPE.

               Because the Court concludes that there was no denial of a FAPE, Ms. Aikens is

not entitled to reimbursement for T.A.’s tuition at High Road.4 See 20 U.S.C.

§ 1412(a)(10)(C)(i) (a local educational agency is not required to pay for the cost of education at

a private school “if that agency made a free appropriate public education available to the child”

and the parents chose to send the child to a private school).




4
  Ms. Aikens criticizes the suggestion in a footnote of the HOD that even if T.A. was denied a
FAPE, reimbursement would not be warranted because Ms. Aikens could have taken affirmative
steps to ascertain the new location for T.A.’s placement upon the closing of Shadd. See Pl. Mot.
at 13; AR 20 n.47 (“[A]ssuming it is true [Ms. Aikens] did not know which school to send her
child to for the 2011-2012 school year, the reasonable approach would be to contact the
Respondent and find out, not enroll [T.A.] in a non-public school and then contact the
Respondent on about the first day of school to demand public funding for such a placement when
that very remedy was recently denied in another hearing over the appropriateness of
placement.”). Any criticism of this statement in the HOD is irrelevant because the Court
concludes that no denial of a FAPE occurred.

                                                 10
                                     IV. CONCLUSION

              For the reasons stated above, the Court will grant the District of Columbia’s

Cross-Motion for Summary Judgment, Dkt. 11, and deny Plaintiffs’ Motion for Summary

Judgment, Dkt. 10. Judgment will be entered in favor of the District of Columbia. A

memorializing Order accompanies this Opinion.



DATE: June 21, 2013

                                                                  /s/
                                                   ROSEMARY M. COLLYER
                                                   United States District Judge




                                              11
