                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 CASSANDRA WHEATEN, parent and                )
 next friend ofD.W., a minor,                 )
                                              )
                      Plaintiff,              )
                                              )   Civil Case No. 09-986 (RJL)
               v.                             )
                                              )
 DISTRICT OF COLUMBIA et al.,                 )
                                              )
                      Defendants.
                                       ¢ , _.
                                            .
                              MEMORANDUM OPINION
                               (July 1:t:a, 2010) [#10, #11]

      Plaintiff, Cassandra Wheaten ("Wheaten"), filed this lawsuit on behalf of her

child, D.W., seeking an award of compensatory education on the theory that the District

of Columbia and Michelle Rhee, Chancellor of the District of Columbia Public School

System ("DCPS"), (together, the "defendants") denied D.W. a free appropriate public

education ("F APE") in violation of the Individuals with Disabilities Education Act

("IDEA"), 20 U.S.C. §§ 1400 et seq. Before the Court are the parties' cross-motions for

summary judgment. Upon consideration of the parties' pleadings, relevant law, and the

entire record herein, the defendants' motion is GRANTED.

                                    BACKGROUND

      D.W. is a learning disabled child who has been receiving special education

services since 1999. AR 156. He attended Dunbar Senior High School ("Dunbar") from

2005 until November 2007. AR 6. At Dunbar, D.W. received mostly Ds and Fs on his
report card. AR 75. On February 26,2007, a multidisciplinary team ("MDT") met to

review D.W.'s Individualized Educational Plan ("IEP"). The MDT recommended

transferring D.W. from Dunbar to an institution outside of general education. AR 153.

       On April 23, 2007, D.W. received a neuropsychological evaluation to assist in

developing an appropriate educational placement for him. D.W. was diagnosed with,

inter alia, a learning disorder, specifically visual-spatial learning; a history of perinatal

cerebral anoxia; and a history of difficulty meeting academic and behavioral expectations.

AR 169. The examiner determined that D.W. would benefit from placement in an

educational program with individualized instruction to address his academic and

behavioral difficulties, as well as vocational training and basic life skills training. Id. On

September 12,2007, an MDT met to review and revise D.W.'s IEP. His new IEP

required 27.5 hours of special education for D.W. and included goals for math, reading,

written expression, and vocational skills. AR 46-52. The MDT agreed that D.W. should

be placed in an "out of general education classroom" and that Dunbar was not an

appropriate placement for D.W. Id.

       On November 16,2007, the parties negotiated a settlement agreement whereby

defendant would place and fund D.W.'s enrollment at Accotink Academy ("Accotink") in

Springfield, Virginia. AR 2. D.W. began attending Accotink on November 22,2007.

AR 5. There he participated in a "highly structured and supervised classroom, with a low

student-to-staffratio and access to frequent reinforcement." AR 144. A psychological


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evaluation dated January 13,2008, recommended that D.W. receive individual therapy

services to address his anxiety, coping skills, and self-esteem and interpersonal issues.

AR 145. During his first two semesters at Accotink, D.W. received mostly Cs, one B,

and one D. AR 220. Teacher assessments noted that his grades were not indicative of his

ability but instead reflected mandatory letter grade drops due tofrequent absences! Id.

       On February 14,2008, an MDT met to review and revise D.W.'s IEP. D.W. was

classified as learning disabled and was to remain in a full-time special education setting.

AR 138. In addition to 28 hours of special education instruction, the IEP was modified to

include one hour of individual psychosocial therapy and one hour of individual speech

therapy per week. AR 36. At the MDT meeting, D.W.'s educational advocate stated that

D.W. was owed 220 hours of compensatory education, an assertion that the DCPS

representative disputed. AR 142-43. On February 20, 2008, D.W.'s educational advocate

sent the DCPS representative a letter slightly revising his request, stating that D. W. was

owed 190 hours of specialized instruction and 22 hours of speech language services as

compensatory education for inappropriate placement at Dunbar for several months during

the 2006-2007 school year and the beginning of the 2007-2008 school year, until his

placement at Accotink in November 2007. AR 148.

      On April 21, 2008, plaintiff filed a due process complaint alleging that DCPS had

denied D.W. a FAPE for those same time periods. AR 25. After a hearing on June 6,

2008, a Hearing Officer Determination issued on June 17,2008 (the "HOD"), concluded


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that the DCPS had denied D.W. a FAPE when he was enrolled at Dunbar but that DCPS

had remedied the FAPE denial by placing and funding D.W. at Accotink. AR 5, 14. The

HOD also denied Wheaten's request for compensatory education, finding that she had not

satisfied the criteria established in Reid v. District of Columbia, 401 F .3d 516 (D.C. Cir.

2005). AR 12, 14. On May 27,2009, plaintiff brought the instant action to reverse the

June 10, 2008 HOD. The parties then filed cross-motions for summary judgment.

                                        ANALYSIS

       Summary judgment is appropriate when the pleadings and the record demonstrate

that "there is no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56( c). The party seeking summary

judgment may support its motion by "identifying those portions of 'the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,' which it believes demonstrate the absence of a genuine issue of

material fact." See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R.

Civ. P. 56(c)). In opposing summary judgment, the "nonmoving party [must] go beyond

the pleadings and by [its] own affidavits, or by the 'depositions, answers to

interrogatories, and admissions on file,' designate' specific facts showing that there is a

genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(c), (e)). In determining

whether a genuine issue of material fact is in dispute, "[t]he evidence of the non-movant

is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

                                              4
       The IDEA guarantees children with disabilities the availability of a FAPE. 20

U.S.C. § 1400(d)(1)(A). In designing an appropriate education for students with

disabilities, the child's parents, teachers, school officials, and other professionals

collaborate to develop an IEP to meet the child's unique needs. 20 U.S.C.

§ 1414( d)( 1)(B). If the parent objects "to the identification, evaluation, or educational

placement of the child, or the provision of a free appropriate public education to such

child," he may seek an impartial due process hearing. 20 U.S.C. §§ 1415(b)(6),

1415(1)(1). If the parent is dissatisfied with the outcome of that hearing, he may appeal

the decision to a state court of competent jurisdiction or a federal district court. 20 U.S.C.

§ 1415(i)(2)(A).

       In conducting its review, this Court must grant relief as appropriate, based on a

preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)(iii). The Supreme Court,

however, has interpreted the "preponderance standard of review not to be an allowance of

unfettered de novo review." Reid, 401 F.3d at 521 (quoting Bd. o/Educ. o/Hendrick

Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)). Thus while this Court

makes an independent determination, it "must also give 'due weight' to the administrative

proceeding and afford some deference to the expertise of the hearing officer and school

officials responsible for the child's education." Simmons v. Dist. o/Columbia, 355 F.

Supp. 2d 12, 16 (D.D.C. 2004) (quoting Lyons v. Smith, 829 F. Supp. 414, 418 (D.D.C.

1993)). The burden of proof, not surprisingly, rests with the party challenging the

administrative determination, who must "at least take on the burden of persuading the

                                              5
court that the hearing officer was wrong." Reid, 401 F.3d at 521 (quoting Kerkam v.

McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). For the following reasons, the plaintiff

has not met her burden here.

       Plaintiff alleges that because the defendants denied D.W. a FAPE while he

attended Dunbar, he is entitled to receive compensatory education. Principally citing Reid

for support, Wheaten argues that compensatory education is intended to remedy past

FAPE denials and thus D.W.'s subsequent placement in private schooling at Accotink

was insufficient to erase D.W.'s entitlement to a compensatory education award. I

disagree. While the plaintiff is correct that a court may order compensatory education

when a disabled child has been deprived of a FAPE and that such "compensatory awards

should aim to place disabled children in the same position they would have occupied but

for the school district's violations of IDEA," id. at 518, the plaintiff fails to acknowledge

that the hearing officer specifically determined that D.W.'s placement at Accotink

remedied the prior FAPE denial, thereby rendering an award of compensatory education

unnecessary .

       In determining an equitable compensatory education award, a hearing officer must

engage in a fact-intensive analysis that is qualitative rather than quantitative. Id. at 524.

Our Circuit has specifically rejected "cookie-cutter" or mechanical remedies, such as

awarding one hour of compensatory instruction for each hour that the student was denied

a FAPE, and stressed that a hearing officer must take into account individual assessments

of the student and focus on the student's individual needs. Id. at 523-24. In D.W.'s case,

                                               6
the hearing officer conducted just such a fact-intensive analysis and detennined that the

FAPE violation had already been remedied by D.W.'s placement at Accotink. Indeed, the

HOD specifically states that "the hearing officer did not assume that the Accotink

Academy placement, alone, provided compensation." AR 13. Instead, the hearing officer

assessed the evidence submitted by the parties and detennined that Wheaten "did not

offer proof that the placement [at Accotink] did not compensate for the prior FAPE

denial." Id. In fact, the hearing officer concluded that "[t]he overwhelming evidence is

that the student is making progress at Accotink." Id.

       In making his determination, the hearing officer pointed to D.W.'s grades at

Accotink, which showed marked improvement from Dunbar, and the psychosocial

therapy services that D.W. was receiving in accordance with the February 14,2008 IEP.

Id. The hearing officer also noted that Wheaten "testified that her son is doing much

better at Accotink-his grades are better; his behavior improved; he wants to go to

school; his attitude and self-confidence improved; and she is happy with Accotink." Id.

In light of all the evidence, the hearing officer concluded that D.W. did not require

"additional services beyond his Accotink IEP to undo damage caused by prior violations."

Id. In other words, the hearing officer denied Wheaten's request for compensatory

education not because of Accotink's private school status but because D.W. showed a

clear improvement in his attitude and grades-all of which occurred before plaintiff filed

her complaint-indicating that his FAPE denial had been fully remedied.




                                             7
       Based on a thorough review of the record, I find no reason to reverse the hearing

officer's decision, and the plaintiff has not provided one. Given the strides that D.W.

made following his placement at Accotink, both academically and behaviorally, and the

continuing services provided to him under the most recent IEP, the Court agrees with the

HOD that no award of compensatory education is warranted. See Thomas v. Dist. of

Columbia, 407 F. Supp. 2d 102, 115 (D.D.C. 2005) (acknowledging that "[i]t may be

conceivable that no compensatory education is required for the denial of FAPE" because

a student has "flourished in his current placement"). Finding no basis to overturn the

hearing officer's determination that D.W. was not owed compensatory education,

plaintiff s claim for 212 hours of compensatory education must fail.

                                     CONCLUSION

      For all of the foregoing reasons, the Court DENIES the plaintiffs Motion for

Summary Judgment and GRANTS the defendants' Cross-Motion for Summary Judgment.

An Order consistent with the Court's ruling accompanies this Memorandum Opinion.
                                                      ~




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