                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
JAMES SMITH,                  )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 08-2216 (RWR)
                              )
DISTRICT OF COLUMBIA,         )
                              )
     Defendant.               )
______________________________)


                        MEMORANDUM OPINION

     Plaintiff James Smith brought this action on behalf of his

minor son, O.E., under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., challenging a

hearing officer’s dismissal of his due process complaint that

alleged that the District of Columbia Public Schools (“DCPS”)

denied O.E. a free, appropriate public education (“FAPE”) by

failing to timely conduct and review comprehensive psychological,

speech and language, social history, and educational

reevaluations of O.E.   The parties have cross-moved for summary

judgment.   Because Smith has not shown that any failure to timely

conduct the reevaluations affected his or O.E.’s substantive

rights, Smith’s motion for summary judgment will be denied and

the District of Columbia’s motion for summary judgment will be

granted.
                                 - 2 -

                             BACKGROUND

     When Smith filed this complaint, O.E. was a twelve year-old

student eligible for special education enrolled at the Children’s

Guild, a full-time special education school.     (Def.’s Stmt. of

Material Facts as to Which There is No Genuine Issue ¶¶ 1, 3.)

After Smith requested a reevaluation of O.E., a multidisciplinary

team (“MDT”) convened on May 22, 2008 to assess O.E.’s

educational progress.    (Pl.’s Stmt. of Material Facts Not in

Dispute (“Pl.’s Stmt.”) ¶¶ 5-6.)    Smith attended this meeting.

(A.R. at 25.)   The MDT observed that O.E.’s participation,

behavior, and availability to learn had all greatly improved

since the team last convened.    (Id. at 26, 28.)    O.E.’s

evaluations were outdated (id. at 28), and even in light of the

positive report, the MDT determined that psychological, speech

and language, social history, and educational reevaluations of

O.E. were appropriate.   (Pl.’s Stmt. ¶ 8.)    The MDT noted that

O.E.’s “goals/objectives will remain the same until the

completion of the [re]evaluations.”      (A.R. at 28.)

     On July 23, 2008, Smith filed an administrative due process

complaint, alleging that “[s]ince May 22, 2008, DCPS ha[d] not

conducted and reviewed any of the ordered [re]evaluations.”      (Id.

at 21.)   A hearing officer convened a due process hearing on

August 11, 2008.   (Id. at 1.)   In a written decision eleven days

later, the hearing officer dismissed the complaint on the ground
                                - 3 -

that the D.C. Code required DCPS “to perform the evaluations”

within 120 days of the request,1 concluding that DCPS had until

September 22, 2008 to conduct the reevaluations.    (Id. at 5.)

Meanwhile, DCPS conducted a speech and language reevaluation on

August 6, 2008 and a comprehensive psychological reevaluation on

September 5, 2008.   (See Def.’s Mem. of P. & A. in Supp. of

Def.’s Mot. for Summ. J., and in Opp’n to Pl.’s Mot. for Summ. J.

(“Def.’s Mem.”), Ex. 1; Ex. 2.)   Smith brought this action,

challenging the hearing officer’s dismissal.

                             DISCUSSION

     The parties have cross-moved for summary judgment under

Federal Rule of Civil Procedure 56(c).    Rule 56(c) provides for

entry of summary judgment if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, “show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as

a matter of law.”    Fed. R. Civ. P. 56(c); see also Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009).     “[T]he plain language

of Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who



     1
       The hearing officer cited D.C. Code § 38-2501(a) to
support his conclusion that a 120-day period applied. That code
provision was repealed in 2007. See 2006 D.C. Legis. Serv. 16-
269 (West). D.C. Code § 38-2561.02(a) is the provision that was
in effect at the time of the due process hearing that contains
the language that the hearing officer cited.
                                 - 4 -

fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.”    Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

     IDEA “ensure[s] that all children with disabilities have

available to them a [FAPE] 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).   “‘[T]he primary vehicle

for implementing’” IDEA’s goals is the individualized education

program (“IEP”), “‘which the [IDEA] mandates for each child.’”

Harris v. District of Columbia, 561 F. Supp. 2d 63, 65 (D.D.C.

2008) (second alteration in original) (quoting Honig v. Doe, 484

U.S. 305, 311 (1988)).   An IEP describes the nature of a child’s

disabilities, sets educational and functional goals for the

child, and details the necessary steps a school must take to

support the child’s progress.2    D.S. v. District of Columbia, 699

F. Supp. 2d 229, 233-34 (D.D.C. 2010) (citing 20 U.S.C.

§ 1414(d)(1)(A)).   “Because the IEP must be ‘tailored to the



     2
       “A student’s IEP is developed by a team that includes the
student’s parents, a regular education teacher, a special
education teacher, a representative of the school district, an
individual who can interpret evaluation results, personnel with
particular knowledge of the student if applicable, and sometimes
the student [himself].” T.T. v. District of Columbia, Civil
Action No. 06-207 (JDB), 2007 WL 2111032, at *3 (D.D.C. July 23,
2007) (citing 20 U.S.C. § 1414(d)(1)(B)).
                               - 5 -

unique needs’ of each child, it must be regularly revised in

response to new information regarding the child’s performance,

behavior, and disabilities.”   Id. at 234 (internal citation

omitted) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 181

(1982)).   IDEA requires an initial evaluation of a child to

determine if that child is eligible for special education.     20

U.S.C. § 1414(a)(1).   A reevaluation of the child may take place

if a local educational agency (“LEA”) determines one is warranted

or if the child’s parents or teachers request one, 20 U.S.C.

§ 1414(a)(2)(A), and the MDT must base the child’s IEP on the

most recent evaluation.   20 U.S.C. § 1414(d)(3)(A)(iii).

     “IDEA allows parents to file administrative complaints and

request due process hearings ‘with respect to any matter relating

to the . . . evaluation . . . of the child, or the provision of a

[FAPE] to such child.’”   Wright v. District of Columbia, Civil

Action No. 05-990 (RWR), 2007 WL 1141582, at *2 (D.D.C. Apr. 17,

2007) (quoting 20 U.S.C. § 1415(b)(6)(A)).   “Any party aggrieved

by the findings and decisions made” at a due process hearing

“shall have the right to bring a civil action with respect to the

complaint presented . . . in a district court of the United

States[.]”   20 U.S.C. § 1415(i)(2)(A).   A reviewing court is to

“review the administrative record, hear additional evidence if so

requested by the parties, and, based on the preponderance of the

evidence, . . . grant such relief as the court determines is
                                - 6 -

appropriate.”   Wright, 2007 WL 1141582, at *2 (internal quotation

marks omitted); 20 U.S.C. § 1415(i)(2)(C).     The administrative

officer’s findings must be given due weight, but less deference

is called for than would normally be accorded an administrative

decision.   See Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir.

1988).   “[A] party challenging the administrative determination

must at least take on the burden of persuading the court that the

hearing officer was wrong[.]”   Id.     A court must consider whether

the LEA has complied with the procedural requirements of IDEA and

whether the IEP is “reasonably calculated to enable the child to

receive educational benefits[,]” but a court should not

substitute its own judgment for that of a school agency’s

regarding what is in the best educational interests of a student.

Rowley, 458 U.S. at 206-07.

     IDEA and its implementing regulations do not set a time

frame within which an LEA must conduct a reevaluation after one

is requested by a student’s parent.     See Herbin ex rel. Herbin v.

District of Columbia, 362 F. Supp. 2d 254, 259 (D.D.C. 2005).       In

light of the lack of statutory guidance, Herbin concluded that

“[r]eevaluations should be conducted in a ‘reasonable period of

time,’ or ‘without undue delay,’ as determined in each individual

case.”   Id. (quoting Office of Special Education Programs Policy

Letter in Response to Inquiry from Jerry Saperstone, 21

Individuals with Disabilities Education Law Report 1127, 1129
                                - 7 -

(1995)).   The District of Columbia argues, citing D.C. Code § 38-

2561.02(a), that there is a 120-day deadline for conducting a

reevaluation.   (Def.’s Mem. at 8.)     D.C. Code § 38-2561.02(a)

provides that “DCPS shall assess or evaluate a student who may

have a disability and who may require special education services

within 120 days from the date that the student was referred for

an evaluation or assessment.”   The provision does not apply

explicitly to reevaluations, and interpreting “evaluation” to

encompass reevaluations may not be consistent with the structure

of IDEA, which contains separate sections detailing the

procedures for “initial evaluations” and “reevaluations.”     See 20

U.S.C. § 1414(a).   Additionally, D.C. Code § 38-2561.02(a) refers

only to students who “may have a disability,” which implies that

they have not yet had initial evaluations that have determined

conclusively that they are disabled.     This language suggests the

provision does not apply to reevaluations, which necessarily must

follow initial evaluations.   D.C. Code § 38-2561.02(a), then,

will not be deemed to apply to the reevaluations that are at

issue in this case, and the hearing officer may have erred by

applying the 120-day time limit instead of conducting a fact-

intensive inquiry to determine a reasonable period of time within

which to reevaluate O.E.3



     3
       Whether the hearing officer did err in this way is not
conclusive.
                                - 8 -

     However, a DCPS failure to reevaluate O.E. more quickly does

not necessarily entitle Smith to relief.    A failure to timely

reevaluate is at base a procedural violation of IDEA.     See

LeSesne ex rel. B.F. v. District of Columbia, Civil Action No.

04-620 (CKK), 2005 WL 3276205, at *8 (D.D.C. July 26, 2005)

(characterizing cases “where a student is seeking a reevaluation,

but is already in a placement” as involving procedural violations

of IDEA).   “[P]rocedural violations of IDEA do not, in

themselves, inexorably lead a court to find a child was denied

FAPE.”   Schoenbach v. District of Columbia, 309 F. Supp. 2d 71,

78 (D.D.C. 2004); 20 U.S.C. § 1415(f)(3)(E)(ii).    Smith argues,

citing Harris, that a failure to reevaluate is not a mere

procedural violation of IDEA.   (Pl.’s Mem. in Supp. of Pl.’s Mot.

for Summ. J. (“Pl.’s Mem.”) at 11.)     In Harris, 561 F. Supp. 2d

at 64-65, DCPS took no action for over two years in response to a

parent’s request for reevaluation of her child’s functional

behavior.   The court construed DCPS’ two-year complete “failure

to act on a request for an independent evaluation” as more than

“a mere procedural inadequacy[.]”   Id. at 68-69.    This case,

however, does not involve a two-year complete failure by DCPS to

take any action on Smith’s request for a reevaluation.     DCPS

conducted some of the requested evaluations in August and

September of 2008.   (See Def.’s Mem., Ex. 1; Ex. 2.)     Even if the

hearing officer had properly determined a reasonable procedural
                               - 9 -

time period for conducting the reevaluations and DCPS had not

completed them all within that period, that would not necessarily

end the analysis.

     “[A]n IDEA claim is viable only if those [violations of]

procedural [deadlines] affected the student’s substantive

rights.”   Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d

828, 834 (D.C. Cir. 2006); see also C.M. v. Bd. of Educ., 128

Fed. Appx. 876, 881 (3d Cir. 2005) (per curiam) (“[O]nly those

procedural violations of the IDEA which result in loss of

educational opportunity or seriously deprive parents of their

participation rights are actionable.”).   The plaintiff bears the

burden of proving a violation of substantive rights.   See

Holdzclaw v. District of Columbia, 524 F. Supp. 2d 43, 48 (D.D.C.

2007); see also Kruvant v. District of Columbia, 99 Fed. Appx.

232, 233 (D.C. Cir. 2004) (denying parents relief because

“although DCPS admits that it failed to satisfy its

responsibility to assess [the student] for IDEA eligibility

within 120 days of her parents’ request, the [parents] have not

shown that any harm resulted from that error”).   “A delay does

not affect substantive rights if the student’s education would

not have been different had there been no delay.”   D.R. ex rel.

Robinson v. Gov’t of D.C., 637 F. Supp. 2d 11, 18-19 (D.D.C.

2009) (finding that the defendant’s delay affected the student’s
                              - 10 -

substantive rights because the student’s most recent IEP differed

from the one previously issued).

     Smith has not carried his burden of proof by pointing to

evidence in the record demonstrating that O.E.’s education would

have been different but for the delay.   Although the May 22, 2008

MDT meeting notes state that the “goals/objectives [of the IEP]

will remain the same until the completion of the [re]evaluations”

(A.R. at 28), the notes provide no basis for concluding that

there was any deficiency in the education O.E. received at the

Children’s Guild School.   In fact, the team observed that O.E.’s

“[p]articipation in academics has improved 100%[,]” “[h]e is

behaving well[,]” and his “[t]eachers state he has done a

complete turn around and is now available for learning.”    (A.R.

at 26, 28.)   Although Smith argued at the due process hearing

that “the team says that they cannot discuss placement until the

assessments are done, indicating that potentially his placement

would change” (A.R. at 55), this was mere speculation, and there

is no evidence in the record that O.E.’s placement would have

changed had DCPS completed all the reevaluations sooner.    Nor has

Smith presented evidence that the reevaluations, once conducted,

led to a change in O.E.’s placement or education.

     Smith also argues, citing Amanda J. ex rel. Annette J. v.

Clark County Sch. Dist., 267 F.3d 877 (9th Cir. 2001), that DCPS’

failure to timely perform the reevaluations constituted a denial
                               - 11 -

of FAPE because it impeded his ability to participate in the

decision-making process.   (Pl.’s Mem. at 12-13.)   The IDEA

“guarantees parents of disabled children the opportunity to

participate in the evaluation and placement process.”    Lesesne,

2005 WL 3276205, at *2; see also 20 U.S.C. §§ 1414(f),

1415(b)(1).   While “not every technical violation of the

procedural prerequisites of an IEP will invalidate its legitimacy

. . . , procedural inadequacies that . . . seriously infringe

upon the parents’ opportunity to participate in the IEP

formulation process . . . clearly result in the denial of a

FAPE.”   A.I. ex rel. Iapalucci v. District of Columbia, 402 F.

Supp. 2d 152, 164 (D.D.C. 2005) (internal quotation marks and

citations omitted).   In Annette J., 267 F.3d at 892-93, the

school district failed to disclose to the student’s parents the

student’s full records, which included reports that the student

exhibited behavioral characteristics associated with autism.     The

court found that this “procedural violation[], which prevented

Amanda’s parents from learning critical medical information about

their child,” denied the student a FAPE because “Amanda’s parents

[were] prevented from participating fully, effectively, and in an

informed manner in the development of Amanda’s IEP[.]”      Id. at

894.

       Here, by contrast, Smith has presented no evidence

supporting his assertion that he could not meaningfully
                              - 12 -

participate in the development of O.E.’s IEP.    He attended the

May 22, 2008 MDT meeting.   (A.R. at 25.)   The meeting adjourned

so that the MDT could incorporate any new information gleaned

from the reevaluations into O.E.’s IEP.     (See id. at 26 (“We will

reconvene once assessment[s] have been completed.”).)    Smith

presents no evidence that the team met again before DCPS

completed the reevaluations or that he was unable to participate

in any follow up MDT meeting that took place because the

reevaluations were not more timely completed.    He therefore has

not established that DCPS denied his right to participate

meaningfully in the development of O.E.’s IEP.    See T.T. v.

District of Columbia, Civil Action No. 06-207 (JDB), 2007 WL

2111032, at *5 (D.D.C. July 23, 2007) (finding that the parent

had an opportunity to participate meaningfully in the educational

placement of the child when she assisted in developing the

student’s IEP at the MDT meeting).

                            CONCLUSION

     Smith has not shown that DCPS’ failure to conduct the

reevaluations here sooner affected substantive rights.    Because

Smith has not presented evidence of a substantive harm, either to

himself or to O.E., no relief from the hearing officer’s

dismissal of the administrative complaint is warranted

irrespective of whether the hearing officer erred by concluding

that DCPS had 120 days to complete the reevaluations.    No genuine
                               - 13 -

issues of material fact remain, and the defendant is entitled to

judgment as a matter of law.   Accordingly, the plaintiff’s motion

for summary judgment will be denied, and the defendant’s motion

for summary judgment will be granted.   An appropriate Order

accompanies this Memorandum Opinion.

     SIGNED this 30th day of November, 2010.


                               __________/s/_______________
                               RICHARD W. ROBERTS
                               United States District Judge
