                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              )
YVONNE TORRENCE,                              )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )      Civil Action No. 09-443 (RMC)
                                              )
DISTRICT OF COLUMBIA, et al.,                 )
                                              )
               Defendants.                    )
                                              )


                                 MEMORANDUM OPINION

               Yvonne Torrence sues the District of Columbia and D.C. Public Schools (DCPS)

seeking a declaration that DCPS discriminated against her child, C.H., in violation of § 504 of the

Rehabilitation Act (“Rehab Act”), 29 U.S.C. § 794, and requesting relief under the Individuals with

Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et seq. The District of

Columbia moves for partial dismissal of DCPS as a defendant and of the claim under § 504. Ms.

Torrence concedes that DCPS should be dismissed.1 While Ms. Torrence contests the dismissal of

her Rehab Act claim, because she has failed to state such a claim, that claim will be dismissed. The

IDEA claims will remain.

                                       I. BACKGROUND

               A. Statutory Scheme

               The IDEA ensures that “all children with disabilities have available to them a free

       1
         In response to the motion for partial dismissal, Ms. Torrence indicates that she does not
oppose the dismissal of DCPS as a named party because claims against DCPS can be construed as
having been brought against the District. Pl.’s Opp’n [Dkt. # 6] at 1 (citing Hinson v. Meritt Edu.
Ctr., 521 F. Supp. 2d 22, 34 (D.D.C. 2007)).
appropriate pubic 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 other words, the IDEA guarantees children with disabilities the right

to a free appropriate public education (“FAPE”). Id. In designing an appropriate education for

students with disabilities, the child’s parents, teachers, school officials, and other professionals

collaborate to develop an individualized educational program (“IEP”) to meet the child’s unique

needs. See 20 U.S.C. § 1414(d)(1)(B). Local school officials utilize the IEP to assess the student’s

needs and assign a commensurate learning environment. See 20 U.S.C. § 1414(d)(1)(A). The IEP

team examines the student’s educational history, progress, recent evaluations, and parental concerns

prior to implementing a FAPE for the student. Id. 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 students with a public

education, the IDEA does not guarantee any particular outcome or any particular level of education.

Bd. of Educ. of Hendrick Hudson Cent. 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 the student, or the provision of a free

appropriate public education, 20 U.S.C. § 1415(b)(6), the parent may seek an impartial due process

hearing. Id. § 1415(f)(1). If the parent is dissatisfied with the outcome of that hearing, s/he may

appeal the decision to a state court or a federal district court. See 20 U.S.C. § 1415(i)(2)(A).




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              B. Facts

              Ms. Torrence is the parent of C.H., a fourteen-year-old boy who is eligible for special

education and related services as a child with multiple disabilities. Compl. ¶¶ 5, 8. At a

multidisciplinary team (MDT) meeting on May 14, 2008, the team determined that C.H.’s emotions

and behavior interfered with his academic progress and that a comprehensive psychological

evaluation of C.H. was warranted. Id. ¶ 10. When DCPS did not conduct such an evaluation of C.H.

before October 1, 2008, Ms. Torrence wrote to the school system and asked authorization to obtain

psychiatric and comprehensive psychological evaluations of C.H. independently. Id. ¶¶ 11, 12. Ten

days later, with no response received, Ms. Torrence filed an administrative complaint under IDEA,

alleging that DCPS had failed “timely to conduct and review evaluations in all areas of suspected

disability.” Id. ¶ 14. A hearing on the administrative complaint was held on November 26, 2008,

and a hearing officer’s decision issued on December 6, 2008, denying the claim and dismissing the

case.

              In the Complaint here, Counts I and II allege violations of IDEA. Count III alleges

Discrimination by a Program Receiving Federal Financial Assistance, in violation of § 504 of the

Rehab Act, 29 U.S.C. § 794. Specifically, Count III alleges:

              25. Section 504 of the Rehabilitation Act and its implementing
              regulations require DCPS to provide FAPE to all children with
              disabilities in its jurisdiction.

              26. DCPS has created and adhered to a policy, custom or practice of
              refusing timely to conduct, review, or authorize funding of
              evaluations of special education students in the District of Columbia,
              including C.H.

              27. DCPS acted with bad faith and gross misjudgment in refusing
              timely to conduct, review, or authorize funding of independent


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               evaluations of special education students.

               28. Through its policy, custom or practice or refusing timely to
               conduct, review, or authorize funding of independent evaluations of
               students including C.H., DCPS has violated and continues to violate
               Section 504.

               29. DCPS’ policy, custom or practice or refusing timely to conduct,
               review, or authorize funding of independent evaluation of special
               education students denied C.H. his right to FAPE under Section 504.

Compl. ¶¶ 25-29. The District moves to dismiss Count III for failure to state a claim. Ms. Torrence

opposes.

                                    II. LEGAL STANDARD

               A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges

the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim.

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A complaint must

be sufficient “to give a defendant fair notice of what the . . . claim is and the grounds upon which

it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

Although a complaint does not need detailed factual allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Id. The facts alleged “must be enough

to raise a right to relief above the speculative level.” Id. Rule 8(a) requires an actual showing and

not just a blanket assertion of a right to relief. Id. at 555 n.3. “[A] complaint needs some

information about the circumstances giving rise to the claims.” Aktieselskabet Af 21. Nov. 2001 v.

Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original).



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                In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in

the complaint, documents attached to the complaint as exhibits or incorporated by reference, and

matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d

1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Twombly,

550 U.S. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged, then the claim has facial

plausibility. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id.

                A court must treat the complaint’s factual allegations as true, “even if doubtful in

fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth in

a complaint. Iqbal, 129 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can provide

the framework of a complaint, they must be supported by factual allegations. When there are well-

pleaded factual allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Id. at 1950.

                                          III. ANALYSIS

                The question raised by the District of Columbia is whether the Complaint allegations

quoted above are sufficient to state a cause of action under § 504 of the Rehab Act. The logic of the

Complaint is that the failure of DCPS to provide timely tests of C.H. denied him FAPE and thereby




                                                  -5-
violated both IDEA and the Rehab Act.2 As the District points out, however, the contours of FAPE

under IDEA and § 504 are not the same. Were it otherwise, every common place violation of IDEA

would also violate § 504, which the D.C. Circuit has found is not the intention of the statutes.

                To demonstrate a § 504 violation, “something more than a mere failure to provide the

‘free and appropriate education’ required by the [IDEA] must be shown.” Lunceford v. District of

Columbia Bd. Of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984) (quoting Monahan v. Nebraska, 687

F.2d 1164, 1170 (8th Cir. 1982)). Decided under the Education for All Handicapped Children Act

of 1975 (EAHCA), 20 U.S.C. § 1401 et seq., a predecessor statute which IDEA has replaced,

Monahan detailed what more is needed. Section 504 reads, in pertinent part:

                No otherwise qualified handicapped individual in the United States
                . . . shall, solely by reason of his handicap, be excluded from the
                participation in, be denied the benefits of, or be subjected to
                discrimination under any program or activity receiving Federal
                financial assistance . . . .

29 U.S.C. § 794 (emphasis added). Monahan concluded that “[t]he reference in the Rehabilitation

Act to ‘discrimination’ must require, we think, something more than an incorrect evaluation, or a

substantively faulty individualized education plan, in order for liability to exist.” Monahan, 687 F.3d

at 1170. A court’s conclusion that “an incorrect evaluation has been made, and that a different



       2
           Ms. Torrence argues in her brief:

                Ms. Torrence alleges in her complaint that the Defendant denied C.H.
                FAPE by failing to ensure the proper evaluation of C.H. According
                to the regulations and all precedent, that allegation constitutes an
                allegation of the discriminatory treating of C.H. by reason of [his]
                disability.

Pl.’s Opp’n at 3-4. The argument equates FAPE for purposes of IDEA with FAPE for purposes of
§ 504, which, as explained here, is fundamentally misguided.

                                                 -6-
placement must be required under [IDEA], is not necessarily the same thing as a holding that a

handicapped child has been discriminated against solely by reason of his or her handicap.” Id. The

court in Monahan specified that it did “not read § 504 as creating general tort liability for educational

malpractice.” Id. Rather, “either bad faith or gross misjudgment should be shown before a § 504

violation can be made out.” Id. at 1171. “[T]he decision, if made by a professional, is presumptively

valid; liability may be imposed only when the decision by the professional is such a substantial

departure from accepted professional judgment, practice or standards as to demonstrate that the

person responsible actually did not base the decision on such judgment.” Id. at 1171 (quoting

Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (footnotes omitted) (action under 28 U.S.C. § 1983

against medical professionals)).

                In Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir. 2008), the Ninth Circuit further

explained that FAPE under IDEA and the Rehab Act are not identical.

                FAPE under § 504 is defined to require a comparison between the
                manner in which the needs of disabled and non-disabled children are
                met, and focuses on the “design” of a child’s educational program.
                See 34 C.F.R. § 104.33(b)(1) (a FAPE requires education and services
                “designed to meet individual educational needs of handicapped
                persons as adequately as the needs of non-handicapped persons are
                met” (emphasis added)); cf. 20 U.S.C. §§1401(9),
                1414(d)(1)(A)(i)(II).

                Moreover, the U.S. [Department of Education’s] § 504 regulations
                distinctly state that adopting a valid IDEA IEP is sufficient but not
                necessary to satisfy the § 504 FAPE requirements. 34 C.F.R. §
                104.33(b)(2) (“Implementation of an [IEP under the IDEA] is one
                means of meeting” the substantive portion of the § 504 regulations’
                definition of FAPE (emphasis added); id. § 104.36 (“Compliance
                with the procedural safeguards of § 615 of the [IDEA] is one means
                of meeting” the § 504 procedural requirements in § 104.3(6)
                (emphasis added)). Plaintiffs who allege a violation of the FAPE
                requirement contained in U.S. DOE’s § 504 regulations,


                                                  -7-
               consequently, may not obtain damages simply by proving that the
               IDEA FAPE requirements were not met.

Mark H., 513 F.3d at 933. Thus, § 504 is attuned to programmatic failures while the IDEA is

focused on the individual student who needs special education.

               Ms. Torrence alleges two facts to support her claim of a § 504 violation: (1) “DCPS

did not conduct and review a comprehensive psychological evaluation of C.H. before October 1,

2008,” and 2) “DCPS did not respond to the Plaintiff’s request or conduct any of the requested

evaluations before October 10, 2008.” Compl. ¶¶ 11 & 13. These facts do not show anything other

than a possible denial of FAPE under the IDEA; they do not support an allegation of any

programmatic failure nor do they support an allegation that DCPS discriminated against C.H. solely

because of his disability or an allegation that DCPS acted in bad faith or with gross misjudgment.

Accordingly, Count III of the Complaint will be dismissed for failure to state a claim under § 504

of the Rehab Act.

                                      IV. CONCLUSION

               For the reasons explained above, Defendants’ motion for partial dismissal [Dkt. # 4]

will be granted. DCPS will be dismissed as a party, and Count III of the Complaint will be

dismissed. A memorializing Order accompanies this Memorandum Opinion.



Date: November 17, 2009                      __________/s/______________________________
                                             ROSEMARY M. COLLYER
                                             United States District Judge




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