                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                             )
RAQUEL HOLMAN,                               )
                                             )
               Plaintiff,                    )
                                             )
       v.                                    )       Civil Action No. 14-1836 (RMC)
                                             )
DISTRICT OF COLUMBIA,                        )
                                             )
               Defendant.                    )
                                             )

                                           OPINION

               Raquel Holman, a special education student who is now over the age of 18,

complains that the District of Columbia Public Schools (DCPS) denied her a free appropriate

public education (FAPE) in violation of the Individual with Disabilities Education Act (IDEA),

as modified by the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C.

§ 1400 et seq. An Independent Hearing Officer found that DCPS failed to provide Ms. Holman

her prescribed specialized instruction for her last year of high school and that DCPS excluded

Ms. Holman and her guardian from certain meetings concerning Ms. Holman’s education.

Despite these findings, the Hearing Officer refused to order compensatory education as a remedy

because Ms. Holman had graduated from high school and, therefore, he concluded that DCPS’s

actions did not cause her any harm.

               Ms. Holman now moves for summary judgment and asks the Court to award her

compensatory education. See MSJ [Dkt. 9]. DCPS filed a timely opposition to the motion, to

which Ms. Holman replied. For the reasons that follow, the Court will grant Ms. Holman’s

motion for summary judgment and reverse in part the Hearing Officer’s decision as contrary to

the evidence and the law.

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                                              I. FACTS

       A. Statutory Framework

               In general, IDEA “aims to ensure that every child has a meaningful opportunity to

benefit from public education.” Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C. Cir.

2015). The statute ensures that “all children with disabilities have available to them a free

appropriate public 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). Under IDEA, school systems must promptly identify,

locate, and evaluate every child with disabilities residing in the district who is in need of special

education and related services. Id. § 1412(a)(3)(A). Once a disabled child is identified, the

child’s parents, teachers, school officials, and other professionals collaborate in an “IEP team” to

develop an individualized education program (IEP) to meet the child's unique needs. See id.

§§ 1412(a)(4), 1414(d)(1)(B).

               The IEP is a written statement that is reviewed annually and includes goals and

instructional objectives for the student’s education, services to be provided, projections regarding

the dates on which such services are to be offered, and criteria for evaluating whether

instructional objectives are met. Id. §§ 1401(14), 1414(d)(1)(A); see also Honig v. Doe, 484

U.S. 305, 311 (1988). The IEP team may determine that in order to benefit from special

education, the student requires “related services” — i.e., non-educational, supportive services

such as physical and occupational therapy and psychological counseling. See id. § 1414(d)(1)(B);

34 C.F.R. § 300.24(a). “[T]he IEP must, at a minimum, provide personalized instruction with

sufficient support services to permit the child to benefit educationally from that instruction . . . .”

Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005). IDEA also

requires that “[a]s soon as possible following development of the IEP, special education and

                                                   2
related services are made available to the child in accordance with the child’s IEP.” Honig, 484

U.S. at 311.

               To determine whether a FAPE has been provided, courts must determine whether:

(1) the school complied with the IDEA’s procedures; and (2) the IEP developed through those

procedures was reasonably calculated to enable the student to receive educational benefits.

Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1312 (11th Cir. 2003). While the District of

Columbia is required to provide a FAPE to disabled students, 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).

               IDEA is “violated when a school district deviates materially from a student’s

IEP.” Wilson v. District of Columbia, 770 F. Supp. 2d 270, 275 (D.D.C. 2011) (emphasis in

original) (citations omitted). “A material failure occurs when there is more than a minor

discrepancy between the services a school provides to a disabled child and the services required

by the child’s IEP.” Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th

Cir. 2007); see also Turner v. District of Columbia, 952 F. Supp. 2d 31, 40 (D.D.C. 2013).

Moreover, “the materiality standard does not require that the child suffer demonstrable

education harm in order to prevail.” Wilson, 770 F. Supp. 2d at 275 (emphasis in original)

(quoting Van Duyn, 502 F.3d at 822). Instead, “it is the proportion of services mandated to those

provided that is the crucial measure for purposes of determining whether there has been a

material failure to implement.” Turner, 952 F. Supp. 2d at 41 (citing Wilson, 770 F. Supp. 2d at

775).




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

disabled child, or whether she is receiving a FAPE, the parent may seek a due process hearing

before a D.C. Hearing Officer, who issues a determination known as a Hearing Officer Decision.

20 U.S.C. §§ 1415(b)(6), 1415(f)(1)(A). If a party is dissatisfied with that decision, it may

appeal to a D.C. court or federal district court. See id. § 1415(i)(2)(A). In terms of a remedy or

relief, “[w]here a school system fails to provide special education or related services, a student is

entitled to compensatory education.” Walker v. District of Columbia, 157 F. Supp. 2d 11, 30

(D.D.C. 2001) (citations omitted). Compensatory education consists of prospective services

“reasonably calculated to provide 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.

       B. Background

               Ms. Holman was at all relevant times a DCPS student eligible for special

education under IDEA. See Administrative Record [Dkt. 8] (AR) at 114 (May 30, 2013 IEP

Team Meeting). She attended Dunbar High School in her sophomore (2012-2013) and junior

(2013-2014) years in high school. Id. Tracy Holman, Ms. Holman’s grandmother, was her

guardian and participated in meetings concerning Ms. Holman’s education. In the spring of

2013, Ms. Holman was also represented by Attorney Nicholas Ostrem.

               DCPS had provided Extended School Year (ESY) education to Ms. Holman over

the course of one or more summers at unspecified times before she entered high school. On

April 19, 2013, Dr. Courtney Davis, Dunbar’s special education coordinator, contacted Mr.

Ostrem by email about scheduling a meeting to discuss ESY education for Ms. Holman during

the summer of 2013. See id. at 208. He suggested three dates for a meeting. Id. On April 23,

2013, Mr. Ostrem expressed some doubt regarding the need for ESY services for Ms. Holman
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and told Dr. Davis that he did not think a meeting was necessary, but that he would talk to Ms.

Holman and her grandmother to see whether Ms. Holman “would benefit from ESY.” Id. Mr.

Ostrem and Dr. Davis continued to exchange e-mails to discuss whether a meeting and ESY

education were necessary.

               On April 26, 2013, Mr. Ostrem informed Dr. Davis that Tracey Holman “believes

[Raquel] does require ESY services (although she’s not 100% sure that she will be able to take

advantage of them given her summer schedule). That being the case, please amend the IEP to

add ESY services, and then send me a copy.” Id. at 211 (April 26 E-mail). That was not the end

of the matter. Dr. Davis responded that he needed “to schedule a meeting with the team as ESY

services may be deemed unnecessary for the student” and told Mr. Ostrem to “choose an

identified date and time.” Id. Mr. Ostrem was incredulous and answered: “Why would she not

qualify for ESY –– it was on her IEP last year?” Id. Mr. Ostrem also indicated that, while he did

not think a meeting was necessary, he was not available on the identified dates and times and

proposed alternative dates for the meeting. Id. On May 7, 2013, DCPS convened a meeting

without the presence of Ms. Holman, her grandmother, or Mr. Ostrem. Id. at 99 (May 7, 2013

IEP Team Meeting). During the meeting, DCPS amended the IEP and determined that Ms.

Holman did not need ESY services for the summer of 2013. Id.

               On May 30, 2013, DCPS held a second meeting without any representative of Ms.

Holman present. See May 30th IEP Team Meeting. In that meeting, DCPS declined to prescribe

ESY education in the new 2013-2014 IEP. Id. at 124 (ESY in IEP). As part of the new IEP,

DCPS continued to prescribe 13.3 weekly hours of specialized instruction in a general education

setting. Id. at 121 (Services in IEP). However, DCPS failed to provide the specialized

instruction in school year 2013-2014 as required. Instead, DCPS scheduled a special education



                                                5
teacher to be present in Ms. Holman’s classroom only for one class every other day for a total of

3.75 hours per week. See Tr. of Due Process Hearing [Dkt. 8-8] (Hearing Tr.) at 100-104. Ms.

Holman has shown without opposition that the teacher missed at least one class per week and

when she was there, the teacher failed to stay for the entire class. Id. In addition, the teacher

failed to check if Ms. Holman needed extra help and did not provide help when Ms. Holman

requested it. Id.

               Despite these failures, Ms. Holman passed all of her classes and graduated from

high school in three years, at the end of the 2013-2014 academic year. See AR at 386-391

(Diploma and Report Cards). She graduated with a cumulative grade point average of 2.23 and a

ranking of 60th in a class of 130 students. Id. However, Ms. Holman’s reading and writing skills

ranged from the first-grade level to less than the seventh-grade level. See id. at 169 (2014 Psych.

Evaluation); id. at 201-203 (Testing Summary). Also, between May 17, 2013 and June 16, 2014,

without real special education assistance, Ms. Holman’s academic skills declined in five of six

areas. Compare id. at 165 (WJ-III 2013 Test Scores) with id. at 182 (WJ-III 2014 Test Scores).

According to Ms. Holman’s DCPS teachers, at her high school graduation, Ms. Holman was “at

the [4th] grade reading level.” Id. at 376 (DCPS Progress Summary).

               On May 20, 2014, Ms. Holman filed a due process complaint under the IDEA

alleging that DCPS failed to implement her IEP and did not give her the opportunity to

participate in certain meetings. Id. at 4-9 (Due Process Complaint). On July 16, 2014, Ms.

Holman had her due process hearing and presented three witnesses. See Hearing Tr. at 3. DCPS

did not present any witnesses. Id. On August 4, 2014, the Hearing Officer issued his decision

that acknowledged DCPS’s failure to implement Ms. Holman’s IEP, but held that DCPS did not

deny Ms. Holman a FAPE. See AR at 428-439 (HOD). Specifically, the Hearing Officer held



                                                  6
DCPS harmless because Ms. Holman had already graduated and there was no indication that Ms.

Holman required ESY or that she “regress[ed] . . . during the last school year.” Id. at 437. The

Hearing Officer also found that DCPS’s failure to implement the IEP as prescribed was only a de

minimis error and did not constitute a denial of FAPE. Accordingly, the Hearing Officer denied

all relief, including compensatory education. Ms. Holman filed the Complaint at bar to appeal

the Hearing Officer’s Decision and seek compensatory education. See Compl. [Dkt. 1]. She

now moves for summary judgment.

                                    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). Moreover, summary judgment is properly

granted against a party who “after adequate time for discovery and upon motion . . . 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). In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. Since “[c]redibility determinations, the weighing of inferences and

the drawing of inferences from the facts are jury functions,” the court must deny summary

judgment to the extent that reasonable minds could differ over the import of the evidence. Id. at

250-51, 255.

               In an IDEA case, a court must review the administrative record and it may hear

additional evidence at the request of a party; the court bases its decision on the preponderance of

the evidence, granting such relief it deems appropriate. 20 U.S.C. § 1415(i)(2)(B)(iii). A court
                                                 7
gives “due weight” to the Hearing Officer decision and does not substitute its own view of sound

educational policy for that of the hearing officer. See Rowley, 458 U.S. at 206. Moreover, 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, 401

F.3d at 521 (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). If neither party

requests that the court hear additional evidence, then the court may determine the case based on

the administrative record on summary judgment. Heather S. v. Wisconsin, 125 F.3d 1045, 1052

(7th Cir. 1997). Here, neither party has requested that the Court hear additional evidence; thus,

the Court bases its decision on its review of the Administrative Record.

                                        III. ANALYSIS

               The Hearing Officer found that DCPS failed to implement Ms. Holman’s IEP

during the 2013-2014 academic year and that DCPS convened the May 7th and May 30th

meetings without the presence of Ms. Holman or her legal guardian. See HOD. According to

Ms. Holman, these findings compel a determination that DCPS denied her a FAPE in violation

of IDEA. Ms. Holman contends that the Hearing Officer’s decision denying her compensatory

education was wrong as a matter of law. DCPS opposes Ms. Holman’s position and asks the

Court to sustain the Hearing Officer’s decision.

       A. DCPS’s Failure to Implement Ms. Holman’s IEP

               DCPS concedes that Ms. Holman’s 2013-2014 IEP was not implemented as

prescribed. See Opp’n [Dkt. 10] at 6 (citing AR at 436). However, without much specificity or

explanation, DCPS claims that its failure to implement the IEP was de minimis. See id. The

Court disagrees.

               The Supreme Court has described the IEP as “[t]he primary vehicle for

implementing the[] congressional goals” identified in IDEA. Honig, 484 U.S. at 311. It follows

                                                   8
that a school district’s adherence to the prescribed IEP is essential to a child’s educational

development under IDEA. IDEA “is violated when a school district materially deviates from a

student’s IEP.” Wilson, 770 F. Supp. 2d at 275 (emphasis in original) (citations omitted). A

deviation is considered to be “material . . . when there is more than a minor discrepancy between

the services a school provides to a disabled child and the services required by the child’s IEP.”

Van Duyn, 502 F.3d at 822. To determine “whether there has been a material failure to

implement” an IEP, courts must look at “proportion of services mandated to those provided.”

Turner, 952 F. Supp. 2d at 41 (citing Wilson, 770 F. Supp. 2d at 775) (emphasis added).

               In the instant case, there is no question that DCPS materially deviated from Ms.

Holman’s 2013-2014 IEP. Ms. Holman’s IEP prescribed 13.3 weekly hours of special

instruction. See Services in IEP. It is undisputed that DCPS scheduled a special education

teacher to be present in Ms. Holman’s classroom only for one class every other day for a total of

3.75 hours per week. See Hearing Tr. at 100-104. Since the teacher missed at least one class

per week, it follows that DCPS only provided Ms. Holman with special instruction for 2.25 hours

per week, that is, 17% of the prescribed hours. See id. Since DCPS failed to provide 83% of the

required services, it cannot be seriously argued that its failure to implement the IEP was de

minimis.1 This is a material deviation from the 2013-2014 IEP. Cf. Savoy v. District of

Columbia, 844 F. Supp. 2d 23, 34 (D.D.C. 2012) (finding there was no material deviation from

the child’s IEP where the student received 97% of the prescribed hours).

               DCPS agrees with the Hearing Officer that this failure did not amount to a denial

of FAPE because Ms. Holman graduated from high school and because there is “no evidence that



1
  This calculation does not account for the fact that the special education teacher did not stay for
the entire 90-minute class. See Hearing Tr. at 100-104.

                                                  9
the failure to provide all of [Ms. Holman]’s specialized instruction caused her any harm.” Opp’n

at 6. DCPS misses the point. It is well-established that “the materiality standard does not

require that the child suffer demonstrable educational harm in order to prevail.” Wilson, 770 F.

Supp. 2d at 275 (emphasis in original) (quoting Van Duyn, 502 F.3d at 822). Since proof of

harm is not required under these circumstances, it follows that a material deviation from the

prescribed IEP is per se harmful under IDEA. See id. The “crucial measure” under the

materiality standard is the “proportion of services mandated to those provided” and not the type

of harm suffered by the student; thus, the Hearing Officer’s reliance on the fact that Ms. Holman

graduated from high school in three years is irrelevant. Turner, 952 F. Supp. 2d at 41. A

contrary holding would eviscerate the need for an IEP and the materiality standard because it

would allow DCPS to evade its duties and responsibilities by awarding a high school diploma to

every student. This concern is particularly relevant here where a child with only a “[4th] grade

reading level” was able to obtain a high school graduation diploma. See DCPS Progress

Summary.

               The Hearing Officer’s decision is even more problematic because, as the record

shows, Ms. Holman’s academic achievement scores declined after she entered Dunbar High

School. The following table provides evidence of the material decline in many of her standard

scores as measured by a Woodcock Johnson III Test of Achievement (WJ-III Test):




                                                10
    Academic Skill               WJ-III 2010 Test      WJ-III 2013 Test       WJ-III 2014 Test
                                     Scores                 Scores                Scores
                                   5/10/2010              5/17/2013             06/16/2014
                                  (Grade Level          (Grade Level           (Grade Level
                                  Equivalency)          Equivalency)           Equivalency)

    Letter-Word Identification              64 (2.8)               54 (3.2)               58 (3.1)

    Reading Fluency                         76 (3.6)               73 (4.4)               70 (3.7)

    Calculation                             85 (5.7)               77 (5.5)               81 (5.9)

    Math Fluency                            86 (6.5)               89 (8.3)               78 (6.7)

    Spelling                                81 (4.4)               73 (4.7)               71 (4.1)

    Writing Fluency                            N/A                 82 (6.0)              62 (3.3)


These results prove that the failure to implement Ms. Holman’s 2013-2014 IEP was harmful to

her. During her last year, Ms. Holman regressed in every area but one, in which she improved

only by less than half a grade level.2 See id. In light of the DCPS’s material deviation from the

IEP and the evident decline in Ms. Holman’s test results, it is perplexing that the Hearing Officer

did not find a denial of a FAPE for Ms. Holman. The Court holds that the Hearing Officer’s

decision was contrary to law and the evidence.

                  Since the Court has already found that DCPS violated IDEA when it materially

deviated from Ms. Holman’s prescribed IEP, it need not determine whether Ms. Holman’s

exclusion from the May 7th and May 30th meetings also violated the statute. DCPS’s failure to

implement the 2013-2014 IEP by itself amounted to a denial of a FAPE.




2
  The Court also notes on May 17, 2013, at the end of her second year of high school, Ms.
Holman received a psychological assessment. The assessment yielded a low full scale
[Intelligence Quotient (IQ)] score of 67. See AR at 166 (2013 Psych. Evaluation).

                                                 11
                                     IV. CONCLUSION

              For the foregoing reasons, the Court will grant Ms. Holman’s Motion for

Summary Judgment, Dkt. 9. Judgment will be entered in favor of Ms. Holman as follows: The

Court will reverse the HOD that DCPS’s failure to implement Ms. Holman’s IEP was not a basis

for a remedy. The Court will order DCPS to convene one or more meetings of the

multidisciplinary team as necessary to develop an individual education plan for Ms. Holman,

who remains eligible for compensatory education under D.C. law until the age of 22.

              A memorializing Order accompanies this Memorandum Opinion.



Date: January 28, 2016

                                                                  /s/
                                                   ROSEMARY M. COLLYER
                                                   United States District Judge




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