                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
CAROLYN COUSINS, et al.,      )
                              )
          Plaintiffs,         )
                              )
          v.                  )     Civil Action No. 09-1677 (RWR)
                              )
DISTRICT OF COLUMBIA,         )
                              )
          Defendant.          )
_____________________________ )

                       MEMORANDUM OPINION

     Plaintiffs Carolyn Cousins and her minor son, J.C., bring

this action against the District of Columbia (“D.C.”) under the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.

§ 1400, et seq., challenging a hearing officer’s decision denying

the portion of Cousins’s due process complaint seeking an award

of compensatory education to J.C.   The parties have cross-moved

for summary judgment, disputing whether the plaintiffs satisfied

their burden at the administrative hearing to produce sufficient

evidence demonstrating the type and quantum of compensatory

education needed to correct J.C.’s educational deficits.   Because

the record supported granting a compensatory education award and

the hearing officer erred by not granting one, summary judgment

will be granted in favor of the plaintiffs and the case will be

remanded to the hearing officer.
                                   -   2    -

                                 BACKGROUND

        During the 2004-2008 school years, J.C. was a student

enrolled in the Bright Beginnings Child Development Center’s Head

Start Program (“Bright Beginnings”).            (Administrative Record

(“A.R.”), Hr’g Tr., July 8, 2009 (“Hr’g Tr.”), at 14:1-3, 39:20-

21; A.R. at 19-20; Pls.’ Mem. of P. & A. in Supp. of Pls.’ Mot.

for Summ. J. (Pls.’ Mem.) at 4.)           His speech and language

impairment rendered him eligible for special education services.

(A.R. at 5, 20.)       Accordingly, on October 2, 2007 and May 13,

2008, Bright Beginnings developed individual education programs

(“IEPs”)1 setting forth language, speech, and occupational therapy

(“OT”) tailored to J.C.’s needs.           (Id. at 5, 8, 20.)   He enrolled

at Miner Elementary School (“Miner”) for the 2008-2009 school

year.       (Hr’g Tr. at 40:17-19.)    Cousins submitted to Miner in

July of 2008 J.C.’s special education records, including previous

evaluations and IEPs.       (A.R. at 5; Hr’g Tr. at 42:11-13.)

        In August of 2008, J.C. developed a seizure disorder and

underwent brain surgery that caused him to miss the first two to

three weeks of Miner’s 2008-2009 school year.           (Hr’g Tr. at 41:2-

15.)        Cousins provided Miner with information about J.C.’s



        1
       A school must “provid[e] personalized instruction with
sufficient support services to permit the child to benefit
educationally from that instruction” and the instructions and
services “must comport with the child’s IEP.” Bd. of Educ. of
the Hendrick Hudson Central Sch. Dist., Westchester Cnty. v.
Rowley, 458 U.S. 176, 203 (1982) (citation omitted).
                                 -    3   -

surgery.   (Id. at 41:16-22.)2       On February 19, 2009, Miner

convened a hearing to determine J.C.’s eligibility for special

education services.   (A.R. at 3.)        The school determined J.C. to

be ineligible (id.) and declined to conduct further evaluations

(A.R. at 9).   Despite having received J.C.’s special education

records and knowing of his surgery, Miner provided J.C. no

special education or related services for the entire 2008-2009

school year.   (See id.)

      On May 4, 2009, the plaintiffs filed a due process complaint

against the D.C. Public Schools (“DCPS”).        They alleged that it

had

      denied [J.C.] a Free Appropriate Public Education
      (“FAPE”) by failing to implement [J.C.’s] May 13, 2008,
      . . . [IEP], failing to develop a new IEP or issue a
      notice of non-eligibility within 30 days of receiving
      the IEP; failing to comprehensively evaluate [J.C.] for
      suspected disabilities; and by determining [J.C.]
      ineligible for special education and related services.

(A.R. at 3.)   The plaintiffs therefore requested that a hearing

officer order DCPS to provide compensatory education to J.C.        In

particular, they sought funding for a compensatory education plan

and for “independent comprehensive evaluations including . . .

psycho-educational, neuropsychological, speech and language

evaluations[.]”   (Id.)    They also wanted DCPS to be ordered to

“convene a multidisciplinary team [“MDT”] meeting to review the



      2
       His recovery caused J.C. to log forty absences between
August of 2008 and April of 2009. (Hr’g Tr. at 45:18-22.)
                               -   4   -

evaluations, discuss and determine [J.C.’s] eligibility, develop

an appropriate IEP if necessary, [and] determine and provide an

educational placement with appropriate special education and

related services.”   (Id.)

     At the administrative hearing held on July 8, 2009, the

plaintiffs presented among their witnesses two experts to support

their request for compensatory education.       The first was Janet

Thomas, an occupational therapist and consultant at Bright

Beginnings.   (Id. at 69:1-2; 71:7.)       Thomas testified that she

had provided OT to J.C. from 2006 until 2008 (see id. at 89:16-

19) and that, during J.C.’s May 13, 2008 MDT/IEP meeting (id. at

86:21-22, 88:12), she recommended that he continue to participate

in OT and speech and language services (id. at 88:11-14).        She

also stated that she evaluated J.C. in June of 2009 (id. at

90:14-15), at the end of J.C.’s year at Miner, to assess his fine

and visual motor skills and “determine what his needs might be”

(id. at 90:10-12; see also Pls.’ Mem. at 6).

     Thomas “was struck by some observations that [she] had not

previously seen.”    (Hr’g Tr. at 91:13-14.)     She noted that J.C.

was “thinner,” that he “walk[ed] with a shuffling gait,” that “he

had some tremors” and that he “appeared noticeably weaker than

what [she] had previously observed.”       (Id. at 91:14-19.)   She

testified that “[h]e had a hard time . . . just doing very basic

tasks” (id. at 92:4-5), such as difficulty “taking himself to the
                                -    5   -

bathroom” (id. at 104:13-14), and said “now we have to make up

for some lost time.”    (Id. at 96:12-13.)     Thomas also testified

that “the gap between the expectation of what he’s supposed to do

and what he is capable of doing . . . continues to grow wider.”

(Id. at 94:15-17.)     She concluded that J.C. would require “short,

intensive” OT for an hour a day “until the end of the summer” in

order to restore his motor skills to the level they would have

been had he received a FAPE during the 2008-2009 school year.

(Id. at 105:16-22, 106:1-3, 107:1-3, 107:8.)       She also

recommended that J.C. be reassessed at the end of the summer to

determine which additional services were necessary.      (Id. at

106:1-3.)

     The plaintiffs’ second expert witness was Dr. Diane

Jacobstein, a clinical psychologist at Georgetown University who

provided services at Bright Beginnings and who had worked with

J.C. during his tenure there.       (Id. at 126:15-17; see also Pls.’

Mem. at 7.)   Dr. Jacobstein corroborated Thomas’s testimony that

the MDT/IEP team convened on May 13, 2008 had recommended

“ongoing speech and language and occupational therapy services”

for J.C.    (Hr’g Tr. at 139:12-16.)     She reevaluated J.C. on

June 23, 2009 (Hr’g Tr. at 145:19), after his year at Miner, and

determined that his “scores had really dropped in some rather

frankly, alarming ways.”    (Hr’g Tr. at 146:19-20.)    For example,

“his score on the spatial skills . . . plummeted” (id. at 147:6),
                                  -    6   -

and “his score on the verbal comprehension task ha[d] really

fallen[.]”    (Id. at 150:3-4.)       She also noted that J.C. was “two

years behind[] where he should be in terms of his ability to

follow oral directions” (id. at 150:12-13), and described

specific missing motor and phonemic skills J.C. should have had

at the conclusion of the 2008-2009 school year.         (See, e.g., id.

at 150:16 - 154:5, 176:11 - 178:3.)

        Counsel asked “what it would take to put [J.C.] in the

position he would have been in had he received” special education

services during the 2008-09 school year.         Dr. Jacobstein

responded that “at a minimum,” he would need “a lot of hours” of

“very intensive individualized instruction” in phonemic

awareness.    (Id. at 156:4-6, 12-13; see also id. at 178:12 -

179:3.)    Counsel asked “[w]hat type of program” that would look

like.    Dr. Jacobstein said “individualized training in phonemic

awareness, administered usually by a speech and language

pathologist, sometimes by a special educator or reading

specialist.”    (Id. at 156:11-15.)        When asked how often and for

how long J.C. should receive those services, she said that for

the six or seven weeks remaining in the summer, she estimated

“daily intensive services” for “an hour a day[.]”         (Id. at

156:20-21; 157:9.)    Dr. Jacobstein also recommended six weeks of

“very intensive” speech and language instruction (id. at 179:11-

12), motor skills instruction, and OT, and estimated that J.C.
                                -    7   -

would be able to tolerate “3, 4 hours a day total.”       (Id. at

180:5.)   While she stated that he “still might not be where he

needs to be” at the end of the summer (id. at 156:21-22) -- “[h]e

very likely will still not be . . . where he needs to be” (id. at

156:22 - 157:1) -- she also recommended that J.C. receive

additional evaluations at the end of the summer and that he be

taught in “a classroom for children with learning

disabilities[.]”   (Id. at 161:17-18.)

     On July 17, 2009, the hearing officer determined that DCPS

had denied J.C. a FAPE and ordered DCPS, as plaintiffs had

requested, to convene an MDT/eligibility meeting to review all

prior and new evaluations, determine J.C.’s eligibility, develop

an IEP, and determine placement if warranted.       (A.R. at 12.)     The

hearing officer also held that J.C. was entitled to a

compensatory education award.       (A.R. at 10.)   She nonetheless

denied J.C. a compensatory education award,3 stating that the

plaintiffs had not produced sufficient evidence under Reid ex

rel. Reid v. D.C., 401 F.3d 516 (D.C. Cir. 2006), to show “the

specific compensatory measures needed to best correct [J.C.’s




     3
       “[E]ven if entitlement to an award is shown through a
denial of a free and appropriate public education, ‘[i]t may be
conceivable that no compensatory education is required for the
denial of a [FAPE] . . . either because it would not help or
because [the student] has flourished in his current placement[.]”
Phillips ex rel. T.P. v. D.C., 736 F. Supp. 2d 240, 247 (D.D.C.
2010) (citation omitted).
                              -   8   -

educational] deficits[.]”4   (A.R. at 10.)   According to the

hearing officer, J.C. and his mother

     had the burden of showing 1) that as a result of
     [DCPS’s] violation of IDEIA, [J.C.] would have
     progressed to a certain academic level, and 2) that
     there exists a type and amount of compensatory
     education services that would bring [J.C.] to the level
     [he] would have been but for [DCPS’s] violation.

(A.R. at 11.)   After summarizing only some parts of the

witnesses’ testimony,5 the hearing officer concluded that it:

     failed to sufficiently support - under the standards of
     Reid, the calculation of the number of hours of compensatory
     education, what the compensatory plan would consist of, and
     what program, if any, would be used to get the student to
     where he should be. Furthermore there was insufficient
     evidence to demonstrate where academically [J.C.] is as
     compared to where he should be.

(Id.)

     The plaintiffs filed this action seeking reversal of the HOD

denying Cousins’s request for a specific compensatory education

award.6   They have moved for summary judgment, arguing that “[i]f


     4
       Contrary to DCPS’ claim (see, e.g., Def.’s Opp’n to Pls.’
Mot. for Summ. J. & Def.’s Cross-Mot., Def.’s Stmt. of Undisputed
Mat. Facts ¶ 33), the hearing officer did not find that the
plaintiffs had failed to describe any educational deficit that
J.C. had or establish a causal link between DCPS’ denying J.C. a
FAPE and any such deficit. What she found was that plaintiffs’
purportedly insufficient evidence prevented her from identifying
what specific compensatory education award to fashion. (A.R. at
10.)
     5
       The HOD at one point mischaracterized Dr. Jacobstein as an
“Occupational Therapist” rather than a clinical psychologist.
(A.R. at 11.)
     6
       “[A]ny party aggrieved by an HOD may challenge the
decision in a civil action.” Brown v. D.C., 568 F. Supp. 2d 44,
                                -   9   -

this evidence does not satisfy the Reid standard, then nothing

would.”   (Pls.’ Mem. at 13.)   The plaintiffs state that they

adduced expert testimony as to “where J.C. was functioning” at

the beginning and end of the 2008-09 school year, “what specific

progress J.C. would have made over the course of the 2008-09

school year had he received appropriate services[,]” and “what,

how frequently, and for how long services would need to be

provided in order to put J.C. in the place that he would have

been had he received the services that he should have during the

2008-09 school year.”    (Pls.’ Mem. at 13.)

     D.C. has cross-moved for summary judgment, reiterating that

plaintiffs’ evidentiary proffer failed to satisfy Reid.     (Def.’s

Mem. of P. & A. in Supp. of Def.’s Opp’n to Pl.’s Mot. for Summ.

J., & Def.’s Cross-Mot. for Summ. J. (“Def.’s Mem.”) at 5.)

Specifically, D.C. argues that the plaintiffs failed to explain

how the requested compensatory award would resolve the alleged

deprivation.   (Id.)    In addition, D.C. argues that the

plaintiffs’ appeal is moot because DCPS is providing J.C. with

“24.5 hours of weekly specialized instruction, 1 hour of weekly

occupational therapy, 1 hour of weekly physical therapy, 1 hour

of speech-language pathology, and a dedicated aide.”    (Id.)

According to D.C., J.C. already is “receiving special education




47 (D.D.C. 2008).
                              -   10   -

services intended [to] restore him to the academic level of his

peers.”   (Id.)7

                             DISCUSSION

     HODs are reviewed under a “non-deferential standard,” Reid,

401 F.3d at 522, but the challenging party “must at least take on

the burden of persuading the court that the hearing officer was

wrong.”   Id. at 521; see also Kerkham v. McKenzie, 862 F.2d 884,

887 (D.C. Cir. 1988).    The reviewing court “(i) shall receive the

records of the administrative proceedings; (ii) shall hear

additional evidence at the request of a party; and (iii) basing

its decision on the preponderance of the evidence, shall grant

such relief as [it] determines is appropriate.”   Reid, 401 F.3d

at 521.   However, a court shall not “substitute [its] own notions

of sound educational policy for those of the school authorities

which [it] review[s].”   Kerkam, 862 F.2d at 887 (quoting Bd. of

Educ. of Hendrick Hudson Ctrl Sch. Dist., Westchester Cnty. v.

Rowley, 458 U.S. 176, 206 (1982)).




     7
       D.C. also argues that the hearing officer correctly
concluded that the plaintiffs failed to demonstrate J.C.’s
specific educational deficit, and that their compensatory request
failed to account for J.C.’s more than 40 absences during the
2008-2009 school year, and his weakened physical condition as a
result of brain surgery on August 25, 2008. (Def.’s Mem. at 5.)
As is noted above, DCPS misstates the hearing officer’s
conclusions. In addition, the conclusions the hearing officer
did reach did not purport to be based upon any gap in proof of
J.C.’s deficits or what caused them.
                             -   11   -

     Summary judgment is proper “when the pleadings and evidence

show ‘that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’”

Akers v. Beal Bank, Civil Action No. 09-0724 (RMU), 2012 WL

639287, at *1 (D.D.C. Feb. 29, 2012) (quoting Fed. R. Civ. P.

56(a)).   A dispute is “genuine” if a reasonable trier of fact,

given the evidence presented, could return a verdict for the

nonmoving party.   Musick v. Salazar, 839 F. Supp. 2d 86, 93

(D.D.C. 2012).   “‘A fact is material if a dispute over it might

affect the outcome of a suit under the governing law.’”    Id.

(quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)).

     In considering a summary judgment motion, a court may not

make credibility determinations, weigh evidence, or “draw[] . . .

legitimate inferences from the facts[.]”    Estate of Parsons, 651

F.3d at 123 (quoting Anderson, 477 U.S. at 253).     Rather, a court

accepts as true the nonmovant’s evidence and draws “justifiable

inferences . . . in [her] favor.”     Id. (quotation marks and

citation omitted).   “[I]f the evidence presented on a dispositive

issue is subject to conflicting interpretations, or reasonable

persons might differ as to its significance, summary judgment is

improper.”   Etheridge, 789 F. Supp. 2d at 32 (quotation marks and

citation omitted).   “[I]f undisputed facts point unerringly to a

single, inevitable conclusion, [however,] summary judgment [is]
                             -   12   -

warranted.”   Keefe Co. v. Americable Int’l, Inc., 169 F.3d 34, 38

(D.C. Cir. 1999) (quotation marks and citation omitted).

     The central question in this case is whether the plaintiffs’

evidentiary proffer before the hearing officer satisfied the

specific showings required by Reid.       (Compare Pls.’ Mem. at 13

with Def.’s Mem. at 5 (disputing whether the hearing officer’s

findings were supported by the record).)      The plaintiff in Reid,

a “sixteen-year-old District of Columbia resident . . .

suffer[ed] from documented learning disabilities . . . that

affect[ed] his short-term auditory memory, formation of

grammatical sentences, and articulation of word sounds.”      Reid,

401 F.3d at 519.   DCPS placed him “in a regular fourth-grade

class” without “performing any disability evaluation, . . .

[and] [o]nly after a full school year of unsatisfactory grades

did DCPS recognize [his] disability and develop an IEP.”      Id.

Despite the IEP, Reid’s reading level slipped from a third-grade

to a second-grade level, and his “intellectual ability placed him

in the ninth percentile for his age.”      Id. at 520.   Reid’s mother

demanded and received a due process hearing in which experts -- a

psychologist, a speech language pathologist/audiologist, and an

educational consultant –- all testified that DCPS should have

known that Reid was disabled.    Id. at 520.    On the basis of this

testimony, the hearing officer concluded that the IEP was ill-

suited to Reid’s needs and that Reid required “a full-time
                              -   13    -

special education program.”   Id.      The officer also “concluded

that DCPS had denied [Reid a] FAPE for roughly four-and-a-half

years,” and “ordered 810 hours of compensatory education[.]”          Id.

The sum derived from an award of “1 hour for each day of special

education services not provided.”      Id.    However, Reid and his

mother “challenged both the number of hours awarded as

compensatory education and the allowance for reduction or

termination by the IEP team.”     Id. at 521.     The district court

“affirmed the administrative award.”        Id. at 521.

     The question presented to the D.C. Circuit was “whether the

district court had abused its discretion in ordering, without

explanation, tutoring in the amount of one hour for each day that

a learning-disabled sixteen-year-old boy went without a FAPE.”

Branham v. Gov’t of D.C., 427 F.3d 7, 9 (D.C. Cir. 2005).       The

court “confirmed that compensatory education awards are available

for IDEA violations, . . . rejected the district court’s

‘mechanical’ calculation of that award, . . . [reasoned] that a

‘cookie-cutter’ approach . . . cannot be squared with IDEA's

conferral of equitable authority to ‘grant such relief as the

district court determines is appropriate,’ 20 U.S.C.

§ 1415(i)(2)(C)(iii), [and] held that ‘the ultimate

[compensatory] award must be reasonably calculated to provide the

educational benefits that likely would have accrued from special

education services the school district should have supplied in
                               -   14   -

the first place,’ Reid, 401 F.3d at 524.”     Id.   Noting that

“compensatory awards must . . . compensate[,]” the court

“emphasized repeatedly that this inquiry must be qualitative,

fact-intensive, and above all tailored to the unique needs of the

disabled student.”   Id. (emphasis removed).

     A compensatory education award must be based upon a fact-

specific, individualized assessment of the student’s needs.

Reid, 401 F.3d at 524.    Since courts enjoy “broad discretion” to

award compensatory education as an “equitable remedy,” id. at

522-523, “Reid certainly does not require plaintiff to have a

perfect case to be entitled to compensatory education.”     Stanton

ex rel. K.T. v. D.C., 680 F. Supp. 2d 201, 207 (D.D.C. 2010).

Indeed, “[c]hoosing to award plaintiff nothing” after “plaintiff

has established that she is entitled to an award . . . does not

represent the qualitative focus on [a student’s] individual needs

that Reid requires.”     Id. (emphasis in original) (internal

quotation marks omitted).

     On each of the factors the HOD found plaintiffs’ evidence

lacking –- where J.C. was academically as compared to where he

should be; the number of hours of compensatory education needed;

what program would get the student where he should be, and what

it would consist of –- the plaintiffs made a satisfactory showing

under Reid.   Jacobstein and Thomas, who had spent years working

with J.C. at Bright Beginnings, provided testimony that
                              -   15   -

“allow[ed] for an estimation of where [J.C.] was functioning”

before and after he enrolled at Miner.     Id. (citing Friendship

Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 669 F.

Supp. 2d 80, 85 (D.D.C. 2009).)    They described how, in May of

2008, they recommended that J.C. continue to receive a host of

special education services.   They explained how follow-up

evaluations in June and July of 2009 reflected how far behind

J.C. was at his age in specific phonemic and motor skills and in

following oral directions after he was deemed ineligible for

special education for the duration of the 2008-2009 academic

year.   Ultimately, the plaintiffs’ proposal for six to seven

weeks of hour-long, daily OT sessions, and 3-4 hours a day of

very intensive speech and language instruction, motor skills

instruction, and a program of individualized training in phonemic

skills awareness administered by a speech and language

pathologist, relied upon these experts’s individualized

assessments of the nature and quantity of compensatory education

that would “provide [J.C.] the educational benefits that likely

would have accrued from special education services the school

district should have supplied in the first place.”    Reid, 401

F.3d at 524.   The assessments were reasonably calculated to

provide the educational benefits that J.C. likely would have

gained from the services the school should have provided when he
                              -    16   -

was enrolled at Miner.8   The record supported an actual

compensatory education award, and the hearing officer erred in

not granting one.

                             CONCLUSION

     Because the hearing officer erred by determining that the

plaintiffs adduced insufficient testimony to warrant a specific

compensatory education award under Reid, the plaintiffs’ motion

for summary judgment will be granted and D.C.’s motion will be

denied.   A final order accompanies this memorandum opinion.

     SIGNED this 31st day of July, 2012.



                                            /s/
                                  RICHARD W. ROBERTS
                                  United States District Judge




     8
       D.C.’s argument that its current provision of special
education services to J.C. moots the plaintiffs’ request for
compensatory education is misplaced. It can be that “no
compensatory education is required for the denial of a FAPE . . .
[where the student] has flourished in his current placement[.]”
Phillips, 736 F. Supp. 2d at 247. However, “a[] [subsequent] IEP
was developed which [D.C.] failed to implement, resulting in the
need for a second administrative proceeding. A second HOD was
issued on December 9, 2009 again finding that Defendant had
denied J.C. a FAPE and ordering placement at and funding for a
non-public special education school.” (Pls.’ Reply to Def.’s
Opp’n to Pls.’ Mot. for Summ. J., and Pls.’ Opp’n to Def.’s Cross
Mot. for Summ. J., at 2-3.) The December 2009 HOD does not
reflect, and D.C. has not shown, that J.C. has “flourished in his
current placement[.]” Phillips, 736 F. Supp. 2d at 247.
