                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA



FRIENDSHIP EDISON PUBLIC
CHARTER SCHOOL
COLLEGIATE CAMPUS,

        Plaintiff,                                         Civil Action No. 06-903 (JMF)

               v.

KENDALL NESBITT,

        Defendant.




                              MEMORANDUM OPINION

       Now pending before the Court is Defendant’s Response to Order to Show Cause

[#34] (“Resp.”), and plaintiff’s opposition thereto [#36] (“Opp.”).

                                       Background

       The facts and procedural history of this case are further set out in this Court’s

previous opinions. See Friendship Edison Public Charter Sch. Collegiate Campus v.

Nesbitt, 532 F. Supp. 2d 121 (D.D.C. 2008); and Friendship Edison Public Charter Sch.

Collegiate Campus v. Nesbitt 583 F.Supp.2d 169 (D.D.C. 2008).

       Briefly, Nesbitt attended Friendship Edison Public Charter School Collegiate

Campus (“Friendship Edison”) from 2003 to 2005. Administrative Record [#16] (“AR”)

at 5. After a determination in a due process hearing that Nesbitt was being denied a free

and adequate public education (“FAPE”), he was placed at High Road Academy, a full-

time special education institution. AR at 4 and 103.

       Friendship Edison was ordered to convene a team to develop a compensatory

education plan, but never did so. Id. at 105. Nesbitt filed another request for a hearing.
AR at 5. The hearing officer ordered defendant to receive 3,300 hours of private tutoring

as compensatory education. Id. I vacated the award because it did not comply with the

standard set forth in Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). See

Friendship Edison Public Charter Sch. Collegiate Campus, 532 F. Supp. 2d at 125-26. I

also ordered the defendant to show cause why I should award him a specific plan for

compensatory education, but defendant stated he could not show cause because he had

not been evaluated since 2005. I also ordered plaintiff to pay for a psycho-evaluation, an

educational evaluation, and a vocational assessment.

       With the completion of the evaluations, I gave defendant another opportunity to

show cause why he should be awarded a compensatory education plan, and he submitted

a response that concluded he was entitled to 3,300 hours of tutoring, the exact same

amount specified in the award that I vacated. I set an evidentiary hearing where I

expected defendant to provide a witness or a number of witnesses to testify, either from

personal knowledge, or, if they were appropriately qualified, as experts about the

following topics: (1) the level at which the defendant was functioning when he first

attended Friendship Edison; (2) the level to which defendant would have progressed

during his time at Friendship Edison, but for the denial of a FAPE; and (3) why 3,300

hours of tutoring will put the defendant in the position he would have been in but for the

denial. See Memorandum Opinion [#40] (citing Brown v. District of Columbia, 568 F.

Supp. 2d 44, 53-54 (D.D.C. 2008) (upholding compensatory education award that was

supported by testimony of education expert)).

                                  Evidentiary Hearing




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       At the evidentiary hearing, defendant produced one expert witness, Dr. Derek

Marryshow. The witness had prepared the proposed Compensatory Education Plan upon

which the defendant’s response to show cause was based. Defendant’s response to the

show cause order stated that he has been receiving individualized tutoring since 2007 and

has completed 1,400 hours in six subjects: math, English, history, science, geography and

fashion design. According to defendant, these hours were necessary to compensate him

for his loss of FAPE. In addition, Dr. Marryshow suggested that he should receive an

additional 950 hours of tutoring in both broad math and reading, because Nesbitt is

currently deficient in math and reading. The doctor thought that a reasonable goal for the

defendant, as an outcome of the tutoring, was to earn his GED.

       At the hearing, Dr. Marryshow provided expert testimony regarding the level that

defendant should have progressed during his time at Friendship Edison but for the denial

of a FAPE. He further provided testimony to support his compensatory education plan of

1,900 hours of tutoring in broad math and reading. No additional evidence was presented

regarding the level at which the defendant was functioning when he entered Friendship

Edison.

       According to Dr. Marryshow, he created the compensatory education plan by

assessing where Nesbitt was functioning cognitively and academically when he left

Friendship Edison and again where he was functioning in 2008, after attending High

Road Academy and receiving 1,400 hours of tutoring. He also considered where Nesbitt

should have been functioning when he left Friendship Edison versus where he in fact was

functioning. According to Dr. Marryshow, a student functioning at an average level is

expected to progress one grade level during an academic year. Similarly, a student



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functioning above or below average would anticipate progressing either more or less than

one grade level during one academic year, based on his/her academic and cognitive

functioning. According to the multiple evaluations, Nesbitt functions cognitively in the

low average to borderline range; academically, he functions at about third grade level.

Nesbitt is faced with both learning and emotional disabilities. Based on the 2005 and

2008 evaluations, which show Nesbitt’s progress after receiving FAPE, Dr. Marryshow

would expect Nesbitt to progress at about one half the rate of an average student during

one academic year. Thus, in three academic years, the amount of time Nesbitt attended

Friendship Edison, Nesbitt would be expected to progress about one and one half grade

levels. Dr. Marryshow said that Nesbitt would progress at these expected rates, if there

was no regression. If there was regression, due to the denial of FAPE or interruption in

instruction, Nesbitt’s progress may reflect a slower rate, because he would have to

recover some progress lost due to regression. Nothing in the record can tell the court at

what level exactly Nesbitt was functioning when he entered Friendship in 2003. Dr.

Marryshow did not rely on the psychological evaluation conducted in 2002 to provide

some idea of where Nesbitt was functioning in 2003; however, that evaluation shows that

he was at approximately an average of a third grade level. According to Dr. Marryshow,

Nesbitt should have then progressed 1.5 grades from that level by the time he reached

High Roads Academy. The evaluation in 2005 shows that he was still functioning at a

third grade level in 2005. Thus, Nesbitt did not progress at the expected rate of 1.5 grade

levels in his three years at Friendship Edison. Dr. Marryshow suggests that, in fact, there

is evidence that Nesbitt regressed in some areas.




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       According to Dr. Marryshow, to compensate Nesbitt for the loss of FAPE, Nesbitt

should receive individualized tutoring that would provide him the educational benefit to

progress 1.5 grade levels. Based on Dr. Marryshow’s assessment of Nesbitt’s record,

Nesbitt would be expected to progress about 1.5 grade levels in the equivalent of about

three academic years, which is about 3,600 hours of instruction. Dr. Marryshow makes

some adjustment for the benefit of one-on-one tutoring, because the progress Nesbitt

made at High Roads Academy reflects a student-teacher ratio of 10:2. Dr. Marryshow

also takes into account the 1,400 hours of tutoring already received by Nesbitt and

concludes that Nesbitt requires 950 hours in broad math tutoring and 950 hours in broad

reading tutoring in order to place Nesbitt in the position he would have been but for the

denial of FAPE.

       Once again, when added together, these numbers reflect the same calculation

provided by the hearing officer that I have rejected. Plaintiff’s counsel argues that Dr.

Marryshow’s testimony, despite reflecting the language of the IDEA and relevant case

law, is an implausible attempt to predicate his report on the very proposed compensatory

education plan that I have already deemed insufficient. Plaintiff’s counsel was concerned

about several areas of Dr. Marryshow’s testimony. First, there is no way to discern

whether Nesbitt’s progress between 2005 and 2008 was due to his attendance at High

Roads or to the individualized tutoring. Second, the 2008 evaluation of Nesbitt did not

demonstrate that he met the expected progress rates that Dr. Marryshow testified he

would expect Nesbitt to make. In fact, Nesbitt regressed half a grade level in math

reasoning. Third, Dr. Marryshow proposes the same amount of tutoring in both broad

math and broad reading, despite the fact that the evaluations of Nesbitt clearly indicate he



                                             5
has not progressed as far in math as in reading. According to plaintiff’s counsel, a more

individualized plan would reflect this weakness in math and provide Nesbitt with

additional math tutoring.

       An additional issue raised was that Dr. Marryshow’s proposed compensatory

education plan and his testimony supported the goal of preparing Nesbitt for completion

of his GED. In his testimony, Dr. Marryshow tried to assure the court that this goal did

not contravene the fact that this was a compensatory education plan and not an

individualized education plan. Instead, Dr. Marryshow argued that it is a waste of

resources for Nesbitt not to use his compensatory education to work towards a goal. Dr.

Marryshow insisted that, while the plan was compensatory, it is useful to provide a

framework in which to administer the 1,900 hours of tutoring; working towards a GED

provides such a framework.

                                       Discussion

       The court must decide whether Dr. Marryshow applied an individualized,

qualitative methodology calculated to provide defendant the educational benefit that

likely would have accrued had he not been denied FAPE. See Reid, 401 F.3d at 522-25.

Dr. Marryshow has proposed the same compensatory education plan as the hearing

officer, who had applied a “cookie-cutter” approach. See e.g. Id. at 523. I have,

however, stated previously that “a compensatory award constructed with the aid of a

formula is not per se invalid.” Friendship Edison Public Charter Sch. Collegiate Campus,

532 F. Supp. 2d at 123. Compensatory education is an equitable remedy that the court

may award in crafting appropriate relief. See Parents of Student W. v. Puyallup Sch.

Dist. No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994) (compensatory education under IDEA “is



                                            6
not a contractual remedy, but an equitable remedy”). A formula-based methodology for

crafting the compensatory award may in some circumstances be acceptable if it is not a

mechanical calculation, but incorporates a qualitative approach “[aimed] to place the

disabled [child ] in the same position [s/he] would have occupied but for the school

district’s violation of IDEA.” Reid, 401 F.3d at 519.

       Dr. Marryshow made his determination based on the record that existed without

interviewing the student, his former or current instructors, or conducting any additional

qualitative research. The question is whether his resulting plan meets the qualitative

standard of Reid. Id.

       I have the authority to solicit additional evidence from parties, as I have done, and

“fashion an appropriate compensatory education award based on the principles” outlined

in Reid. Id. at 526. In light of the age of Nesbitt, I determined that time was of the

essence and that, rather than remand to a hearing officer, I would exercise my authority

in this case. See Memorandum Opinion [#40] at 1. While I do have the authority to

fashion a compensatory education award, I certainly do not have the expertise of an

educator. In ordering an evidentiary hearing, I had hoped that the expert testimony

would provide guidance on the appropriate award; however, both Dr. Marryshow’s

proposed compensatory education plan and his supporting testimony were unsatisfactory

for the reasons now to be explained.

       I now must decide whether these deficiencies are so egregious that the plan fails

the standard set by the court of appeals and prevents me from fashioning an appropriate

compensatory education award. Fortunately, they do not. Enough of a record and an

explanation of Dr. Marryshow’s qualitative methodology exist for the court to determine



                                              7
that, despite its insufficiencies, the proposed compensatory education plan is “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.” See Reid,

401 F.3d at 524.

       Based on my understanding of his testimony, a mathematical representation of

Dr. Marryshow’s methodology would be:

                                             x-y=z

       where:         x=      the projected grade-level progress a student would make

                              without denial of FAPE*

                      y=      the actual grade-level progress the student made in spite of

                              the denial of FAPE

                      z=      the educational benefit of grade-level progress the student

                              made that should have accrued, but did not, due to loss of

                              FAPE

                      r=      regression, lost progress due to denial of FAPE and delays

                              in compensatory education**

* The unit for each variable is grade-level per annum

** Regression is recognized but unaccounted for in the model.

       To determine the value of x, an expert would need to conduct an individualized

assessment of a student’s cognitive and educational capabilities. The expert would then

determine the projected rate of the student’s progress in comparison to students of

average cognitive and educational capabilities. Dr. Marryshow’s methodology relies on

grade-level per annum as the unit of measure for this calculation. What Dr. Marryshow



                                             8
failed to explain fully is how an expert would determine the actual grade-level progress

the student made, even with the denial of FAPE, or variable “y”. Perhaps he assumed

that it is a given that “y” would equal zero, but that would violate the standard in Reid

because it would lead to a “cookie-cutter,” one-to-one compensatory education plan.

Logically, however, to determine the value of “y,” an expert would need to compare the

student’s cognitive and education level at the time just prior to when the denial of FAPE

began to the student’s cognitive and education level at the time the denial of FAPE

ended. Thus, the value of “y” is itself an equation:

                                          b-a=y

where:         a=      the student’s cognitive and educational level expressed as a grade-

                       level assessment at the time just prior to when the denial of FAPE

                       began

               b=      the student’s cognitive and educational level expressed as a grade-

                       level assessment at the time the denial of FAPE ended

               y=      the actual grade-level progress the student did make per annum

       Applying Dr. Marryshow’s methodology to Nesbitt’s record, Dr. Marryshow’s

testimony indicates that the equation should state:

                                        1.5 - 0 = 1.5

The problem in this execution of the equation is that Dr. Marryshow reaches the

conclusion that “y” equals zero without applying the additional equation necessary to

determine the true value of “y.” This would be unacceptable under the Reid standard,

because it turns the individualized methodology into the “cookie-cutter” equation Reid




                                             9
sought to eliminate; however, this is not the death knell for the methodology, just for its

incomplete execution.

       Nothing in the record can tell the court at what level exactly Nesbitt was

functioning when he entered Friendship in 2003; however the 2002 psychological

evaluation of Nesbitt comes very close and could lead allow for an estimation of where

Nesbitt was functioning in 2003. To comport with Reid, Dr. Marryshow could have used

Nesbitt’s 2002 evaluations to determine an estimated value for “a.” The 2005

evaluations are clearly the value of “b.” Therefore, to establish an estimated value for

“y,” Dr. Marryshow had only to compare the 2002 evaluations to the 2005 evaluations.

The evaluation 2002 shows that Nesbitt was at approximately an average of a third grade

level in 2002, with great variation among areas of relative strengths and weaknesses.

Nesbitt was functioning as high as a grade equivalency level of 4.8 in listening

comprehension and as low as a grade equivalency level of 1.2 in pseudoword decoding.

The evaluation in 2005 shows the he was still functioning at about a third grade level

when he left Friendship Edison, with slight progress in some skill areas. Thus, “y” would

equal approximately 3 (for a third-grade level) minus approximately 3 (again for a third-

grade level), or zero. The value for “y” would indicate that approximately no progress in

grade level was made during Nesbitt’s time at Friendship Edison.

       Thus, the final equation for Nesbitt would still be, as Dr. Marryshow indicated:

                                        1.5 - 0 = 1.5

To compensate for the loss of accrued education benefit due to the denial of FAPE,

Nesbitt is entitled to a compensatory education plan that compensates him for the lost

progress of one and a half grade levels. Dr. Marryshow indicates that the proposed 1,900



                                             10
hours of tutoring should do this for Nesbitt, albeit approximately. Dr. Marryshow’s

compensatory education plan is not based on service hours denied, but grade-level

progress not made by Nesbitt, or educational benefits that did not accrue due to loss of

FAPE. Thus, Dr. Marryshow had to employ yet another equation to convert the unit of

measurement from grade level equivalencies to hours.

         Ideally, it seems, Dr. Marryshow would prefer to avoid the conversion, as it leads

to imprecision. Dr. Marryshow would prefer to have Nesbitt retested after a period of

time to see whether or not he has met the benchmarks of grade level progress.

Nevertheless, a conversion is necessary, as the current unit of measurement does not

provide a concrete number from which a compensatory education award can be executed.

Dr. Marryshow chooses to convert the grade level equivalencies to hours of instruction as

the unit of measurement. Accordingly, he estimates that, in an academic year, Nesbitt

would receive an average of 120 hours of instruction a month for about 10 months,

equaling about 1200 hours a year. For an average child, the conversion of grade levels to

hours would be:

                                        g*1200 = n

where:          g=      grade level progress

                n=      number of hours for grade level progress

Relying on the previous assessment that Nesbitt would be expected to progress at about

half the rate of an average child, meaning he would need twice as much time to progress

the same number of grade levels, the equation for Nesbitt should be:

            (g*1200)*2 = number of hours for grade level progress for Nesbitt




                                               11
Applying this to the assessment that Nesbitt failed to progress the expected 1.5 grades,

the equation for Nesbitt would be:

                                     (1.5*1200)*2 = 3600

Dr. Marryshow makes some adjustments to this number, acknowledging that FAPE

would not necessarily be a 1:1 instructor to student ratio, as Nesbitt would have in

tutoring, leading to the final number of 3,300 hours of tutoring. Dr. Marryshow

acknowledges that Nesbitt has already received 1,400 hours of tutoring; therefore,

Nesbitt requires an additional 1,900 hours of tutoring to compensate him for the

educational benefit that should have accrued but for the denial of FAPE.

       The only flaw in the methodology is that, applying the equations, Nesbitt also did

not progress at the expected rate in the almost three years of instruction at High Road

which included individualized tutoring. Only in word reading did Nesbitt hit the

expected rate. While this discrepancy does raise some questions about the methodology,

Dr. Marryshow stated in his testimony that the development of a compensatory education

plan is not a science. Further, the only method of determining if the plan was correct is

to evaluate the student at the conclusion of the plan and determine if his individual

benchmarks were met. If they were not met, then the plan was not entirely accurate.

Working with an imperfect science to develop an individualized education plan for a

student who is still enrolled in school is much easier than fashioning a compensatory

education plan for a person long after the violation of IDEA occurred. Nesbitt is almost

twenty-five years old; he is due compensation for the denial of FAPE. Defendant

provides the court with a compensatory education plan based on a science which

defendant’s expert admits is imperfect. Despite this, I find that the plan meets the



                                             12
standard set by the Court in Reid. Plaintiff has not presented any evidence that Dr.

Marryshow’s plan does not meet the Reid standard, save the fact that it reflects the same

number of hours proposed by the hearing officer. See e.g. Mary McLeod Bethune Day

Academy Public Charter School v. Bland, 555 F.Supp.2d 130, 137 (D.D.C. 2008)

(finding that plaintiff “[had] not adduced evidence, other than the obvious connection

between the service hours denied and the compensatory hours awarded” to suggest award

was of the type rejected by Reid). Presumably, Dr. Marryshow’s methodology, when

correctly applied, would not always be a one-to-one correlation between service hours

denied and compensatory hours awarded.1 Plaintiff did not present any evidence to the

contrary.

         I originally rejected the Hearing Officer’s award of 3,300 hours of tutoring

because it was not “adequately individualized or supported by the record.” Friendship

Edison Public Charter Sch. Collegiate Campus, 532 F. Supp. 2d at 125. In accepting

defendant’s proposed compensatory education award, I am not accepting the same award

provided by the hearing officer, despite the similarities in the outcome. Instead,

defendant has provided evidence that the award of 950 hours of tutoring in broad math

and 950 hours of tutoring in broad reading, in addition to the tutoring already received by

Nesbitt, is reasonably calculated to provide the educational benefits that likely would

have accrued from special education services the school district should have supplied in




1
  An example of this would be if a student was expected to progress at one-half the rate of average students
yet evaluations of his grade level at the beginning and end of the periods where he was denied FAPE
showed that he in fact progressed at one-third of the rate of average students. When fashioning his
compensatory education award, the methodology would be able to take into consideration both the progress
the student made and that which he did not make during the period he was denied FAPE. Thus, the final
award would be calculated to help the student progress only the amount that he was deficient due to the
denial of FAPE.

                                                    13
the first place. As Dr. Marryshow’s testimony makes clear, broad reading encompasses

all reading and written expression.

       I must make one clarification as to the proposed compensatory education plan.

While I agree with Dr. Marryshow that it is useful to have a goal to work towards in

implementing the plan, the attainment of a GED is not the purpose of the compensatory

education award. In fact, given defendant’s estimated rate of progress, it is highly

unlikely that a GED is attainable through the implementation of this award. Defendant

will likely need additional support to earn his GED that is beyond the responsibility of

plaintiff and the compensatory education award to which defendant is entitled. Thus,

while I will endorse the attainment of a GED as the framework by which tutors may

implement the compensatory education award, the attainment of the GED is neither the

purpose of the award nor the likely outcome.
                                                          Digitally signed by John
                                                          M. Facciola
                                                          Date: 2009.11.18 11:06:59
                                                          -05'00'
                                      JOHN M. FACCIOLA
                                      UNITED STATES MAGISTRATE JUDGE




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