                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                       )
BRENDA JACKSON JOHNSON,                )
Parent and Next Friend of T.J.,        )
                                       )
                     Plaintiff,        )
                                       )
       v.                              )    Civil Action No. 11-0894 (ABJ)
                                       )
DISTRICT OF COLUMBIA,                  )
                                       )
                     Defendant.        )
____________________________________)

                                MEMORANDUM OPINION

       Plaintiff Brenda Jackson Johnson (“parent”), acting on behalf of her child (“T.J.” or “the

student”), brought this action against defendant District of Columbia pursuant to the Individuals

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

Officer’s determination that T.J. had not been denied a free and appropriate public education and

was not entitled to compensatory education. On July 18, 2011, the Court referred the case to

Magistrate Judge Deborah A. Robinson. [Dkt. # 8]. Plaintiff moved for summary judgment

[Dkt. # 13], and defendant cross-moved for summary judgment [Dkt. # 14]. On February 15,

2012, Magistrate Judge Robinson issued a Report and Recommendation (“Report”) [Dkt. # 19]

upholding the Hearing Officer’s determinations. After careful review of the Report, plaintiff’s

objections, defendant’s response to plaintiff’s objections, and the Administrative Record, the

Court will adopt the Report in its entirety. Accordingly, the Court will grant defendant’s motion

for summary judgment [Dkt. # 14] and deny plaintiff’s motion for summary judgment

[Dkt. # 13].
   I.      STATUTORY FRAMEWORK

        The purpose of the IDEA is “to ensure 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 future education.”             20 U.S.C.

§ 1400(d)(1)(A). To receive funding under the IDEA, school districts must adopt procedures to

ensure appropriate educational placement of students with disabilities. Id. § 1413. The IDEA’s

free appropriate public education (“FAPE”) provision entitles each student with a disability to a

comprehensive plan, known as an individualized education program (“IEP”), that will meet his

or her specialized educational needs. Id. § 1414(d)(2)(A) (“At the beginning of each school year,

each [state] shall have in effect, for each child with a disability in [its] jurisdiction, an

individualized education program.”). The IEP must be formulated in accordance with the terms

of the IDEA and “should be reasonably calculated to enable the child to achieve passing marks

and advance from grade to grade.” Bd. of Educ. v. Rowley, 458 U.S. 176, 204 (1982).

        The IDEA requires that students with disabilities be placed in the “least restrictive

setting” appropriate to their needs, allowing them to be educated in an integrated setting with

children who do not have disabilities to the maximum extent possible.                  20 U.S.C.

§ 1412(a)(5)(A).    It also provides parents of students with disabilities the opportunity to

participate in the evaluation and placement process. Id. §§ 1414(e), 1415(b)(1). Parents who

object to their child’s “identification, evaluation, or educational placement” are entitled to an

impartial due process hearing, see id. §§ 1415(b)(6), (f)(1)(A), at which they have a “right to be

accompanied and advised by counsel” and a “right to present evidence and confront, cross-

examine, and compel the attendance of witnesses.” Id. § 1415(h). A qualified impartial hearing

officer conducts the due process hearing. Id. § 1415(f)(3)(A).



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          Parents may appeal a hearing officer’s findings and decision by bringing a civil action in

either state or federal court. Id. § 1415(i)(2)(A). The district court has remedial authority under

the IDEA and broad discretion to grant “such relief as the court determines is appropriate.”

Id. § 1415(i)(2)(C)(iii).

    II.      STANDARD OF REVIEW

          When a party objects to a magistrate judge’s recommended disposition, the Court reviews

the magistrate judge’s recommendation de novo. Fed. R. Civ. P. 72(b)(3); see also Smith v.

District of Columbia, Civil Action No. 10-1628, 2012 WL 746396, at *1 (D.D.C. Mar. 6, 2012);

D.D. ex rel. Davis v. District of Columbia, 470 F. Supp. 2d 1, 1 (D.D.C. 2007). The Court may

“accept, reject, or modify” the magistrate judge’s recommendation. Fed. R. Civ. P. 72(b)(3).

          When reviewing an administrative decision made under the IDEA, a district 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 the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). Moreover,

the party challenging the decision “must at least take on the burden of persuading the court that

the hearing officer was wrong.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521

(D.C. Cir. 2005), quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1989). And

although this Court must give “due weight” to the hearing officer’s determinations, Rowley, 458

U.S. at 206, that decision receives less deference than conventional administrative decisions.

Kerkam, 862 F.2d at 887.




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   III.      ANALYSIS

          Plaintiff raises three objections to the recommended conclusions in the Report. The

Court will address each in turn. 1

          A. Procedural Objections to Recommendation on Extended School Year Services

          Plaintiff first objects to the Magistrate Judge’s finding that defendant’s failure to provide

extended school year (“ESY”) services did not procedurally deny the student a FAPE.

Pl.’s Objections to Report & Recommendations (“Pl.’s Objections”) [Dkt. # 20] at 6–7.

Specifically, plaintiff complains that the Magistrate Judge relied, at least in part, on the fact that

the parent had signed and thereby approved the February 2010 IEP, which stated that the student

did not need ESY services. Id. at 3, 5. Plaintiff points out that there is undisputed testimony that

the parent did not attend the IEP meeting, but she simply signed the IEP when it was brought to

her home later. Hr’g Tr. [Dkt. # 12] at 27–28. She argues that a parent’s failure to participate in

the IEP process should be deemed a procedural denial of a FAPE notwithstanding the signature

on the IEP. Pl.’s Objections at 5–6.

          But the authority that plaintiff cites for this proposition does not support a finding that the

student was denied a FAPE. The IDEA provides that when a plaintiff alleges a procedural

obligation, “a hearing officer may find that a child did not receive a [FAPE] only if the

procedural inadequacies . . . significantly impeded the parents’ opportunity to participate in the

decisionmaking process regarding the provision of a [FAPE].” 20 U.S.C. § 1415(f)(3)(E)(ii)

(emphasis added). Here, the mere fact that the parent did not attend the February 2010 IEP

meeting does not alone demonstrate that the parent’s opportunity to participate was impeded at

all, much less that it was “significantly impeded.” And plaintiff points to no other evidence to

1        Additionally, the Court will incorporate the factual background of this case set forth in
detail in the Magistrate Judge’s Report.

                                                    4
indicate that defendant hindered the parent’s opportunity to participate in developing the plan.

Plaintiff does not allege that she did not have notice of the IEP meeting; the parent signed the

February 2010 IEP; and, perhaps most significantly, the parent – along with the parent’s

educational advocate – attended a subsequent October 2010 IEP meeting where the student’s IEP

was amended but still did not provide for ESY. Administrative Record (“A.R.”) [Dkt. # 11] at

6–7. Thus, the parent’s absence from the February 2010 meeting does not provide a basis to

conclude that the student was denied a FAPE.

       B. Substantive Objections to Recommendation on ESY Services

       Plaintiff also challenges the Report on substantive grounds, objecting to the Magistrate

Judge’s finding that defendant did not deny the student a FAPE by failing to provide ESY

services. Plaintiff sets forth the applicable legal standard: “ESY Services are only necessary to a

FAPE when the benefits a disabled child gains during a regular school year will be significantly

jeopardized if he is not provided with an educational program during the summer months.” MM

ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 537–38 (4th Cir. 2002); see also S.S.

ex rel. Shank v. Howard Rd. Acad., 585 F. Supp. 2d 56, 68–69 (D.D.C. 2008) (adopting the

standard from MM). She also notes that the likelihood that a student will regress can be

established by expert testimony. See MM, 303 F.3d at 538.

       But plaintiff fails to point to any evidence in the record that would support the necessary

finding that ESY services were necessary. Unfortunately, the record does not establish either

that the student was making gains, or that gains would be significantly jeopardized (or even

partially jeopardized) without the reinforcement that a summer program would provide. ESY

services are not recommended in any of the IEPs, and there is no indication that the parent

suggested ESY or disagreed with the recommendation of no ESY.               Moreover, the record



                                                5
indicates that the student’s lack of progress is largely attributable to her truancy, and there is

nothing in the record to indicate that ESY would remedy that. See, e.g., A.R. at 112–14.

Plaintiff’s expert did suggest that the student has not made academic progress and would benefit

from ESY, see Hr’g Tr. at 72, but that is not sufficient to establish that it is “necessary” to a

FAPE. M.M., 303 F.3d at 538 (finding that “the mere fact of likely regression is not a sufficient

basis” to establish the need for ESY). Furthermore, “all students, disabled or not, may regress to

some extent during lengthy breaks from school. ESY Services are required under the IDEA only

when such regression will substantially thwart the goal of ‘meaningful progress.’” Id., citing

Polk v. Centr. Susquehanna Intermediate Unit 16, 853 F.2d 171, 184 (3d Cir. 1988). Given the

lack of evidence to support the necessity of ESY, there are no grounds to reject the Report on

this point.

        C. Objections to Compensatory Education Determination

        Finally, plaintiff challenges the finding that defendant was not bound to provide

compensatory education. Pl.’s Objections at 8. A student is entitled to receive compensatory

education when she has been denied a FAPE. Reid, 401 F.3d at 518. A material failure to

implement an IEP can constitute a denial of a FAPE. S.S., 585 F. Supp. 2d at 58.

        Plaintiff takes issue with the Magistrate Judge’s conclusion – which adopted the Hearing

Officer’s finding – that plaintiff had failed to demonstrate that the IEP was not implemented.

Pl.’s Objections at 8.    She correctly points out that the February 2010 IEP specifically

recommended that the student be removed from general education for twenty-six hours per week

for specialized instruction and one hour per week of behavioral support services. A.R. at 116;

Pl.’s Objections at 9. However, the Court agrees with the Hearing Officer and the Magistrate




                                                6
Judge that plaintiff did not present evidence to demonstrate that these provisions of the IEP were

not implemented.

       There is undoubtedly much information in the IEP that demonstrates that the student

would benefit from a smaller setting or a self-contained classroom, see, e.g., A.R. at 112–13,

115–116, so it makes sense that the IEP would call for the student to be pulled out of the general

population for a significant portion of the week. However, as the Hearing Officer explained in

his decision, plaintiff presented no testimony at the hearing to demonstrate that after the IEP was

signed, T.J. did not receive these benefits. A.R. at 8–9. Instead, plaintiff’s expert simply

pointed to a statement in the IEP that said:

       Though [the school] is doing full inclusion, a resource class was made available to
       [T.J.] and her siblings so that additional support and constant monitoring is
       possible. [T.J.] has never attended the resource class. A self[-]contained or a
       smaller setting is recommended for this student.

A.R. at 115. This statement does not bear the significance that plaintiff wishes to give it. First,

the sentence is from the February 2010 IEP, so instead of being a statement about what happened

after the IEP was signed, it is a statement about what happened before the IEP was signed, when

there was a similar provision for twenty-six hours of pull-out instruction in place. Id. In other

words, the observation supported the renewed recommendation of pull-out instruction.

Moreover, the clause “[t]hough [the school] is doing full inclusion” is not an admission that the

school did not give T.J. the specialized, individualized instruction that she needed; it simply

describes the school’s general approach, and that becomes obvious when one reads the rest of the

sentence that explains that a resource class was made available to T.J. Id. In addition, as noted

before, the comment discusses the period before the February 2010 IEP took effect. Id. Plaintiff

points to nothing that would indicate that the resource class was not provided in accordance with

the IEP after the IEP was implemented. And plaintiff’s expert testimony proffers no support for

                                                7
this point beyond a review of the language in the IEP. See Hr’g Tr. 70–71. Therefore, plaintiff’s

third objection also fails.

    IV.      CONCLUSION

          Therefore, based on the Court’s review of the Administrative Record, the Magistrate

Judge’s Report and Recommendation, plaintiff’s objections, and defendant’s response to these

objections, the Court will adopt the Magistrate Judge’s Report and Recommendation;

accordingly, the Court will deny plaintiff’s motion for summary judgment [Dkt. # 13] and grant

defendant’s cross motion for summary judgment [Dkt. # 14]. A separate order will issue.




                                               /s/
                                            AMY BERMAN JACKSON
                                            United States District Judge

DATE: July 10, 2012




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