                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

 CARL ANDERSON and ALYSON                     )
 STEELE, parents and next friends of          )
 J.A., a minor                                )
                                              )
                      Plaintiffs,             )
                                              )
               v.                             )   Civil Case No. 08-580 (RJL)
                                              )
 DISTRICT OF COLUMBIA, et al.                 )
                                              )
                      Defendants.             )
                                              )
                                       ~
                          MEMORANDUM OPINION
                          (March 3(), 2009) [# 11, 14]

       Plaintiffs Carl Anderson and Alyson Steele filed this lawsuit on behalf of

their four-year-old developmentally disabled son, J.A. They seek reimbursement

for the cost of educating J.A. at a private school, the Jenny Waelder Hall Center

for Children ("Jenny Waelder Hall"), alleging that the District of Columbia Public

Schools ("DCPS") failed to provide J.A. with the free appropriate public education

due to him under the Individuals with Disabilities Education Act ("IDEA"), 20

u.S.C. §§ 1400 et seq. Plaintiffs and defendants filed cross-motions for summary

judgment. Because DCPS provided J.A. with the opportunity to receive a free

appropriate public education, the Court GRANTS defendants' motion for

summary judgment and DENIES plaintiffs' request for reimbursement of private

tuition.
                                 BACKGROUND

       In the Fall of 2006, J.A. was referred for special education testing.

Administrative Record ("A.R.") at 33. As a result, the DCPS Central Assessment

Referral and Evaluations ("CARE") Center conducted a series of evaluations.

A.R. at 32-50. Ultimately, a multidisciplinary team ("MDT") classified lA. as

developmentally disabled and developed an Individualized Education Program

("IEP") to meet his needs. A.R. at 244. J.A.'s initial IEP required 24.5 hours of

specialized instruction and weekly sessions of 1.5 hours each with an occupational

therapist and a speech language pathologist. A.R. at 244. The IEP specified that

J .A. 's progress was to be tracked on a monthly basis and identified ten separate

goals. A.R. at 246-55. lA.'s MDT, including his parents, signed off on the

document on December 12,2006. A.R. at 244. The IEP has not been revised

since that time.

       The team decided to place J.A. at West Elementary School, A.R. at 256, to

receive the services outlined in the IEP. However, he failed to make progress.

The team held subsequent meetings - including meetings in June and August of

2007 - in which they reviewed the IEP. The June meeting was unsuccessful

because J.A.'s teacher had failed to measure his progress on a monthly basis, as

required by the IEP. A.R. at 113. An educational advisor, who had conducted her

own evaluations of J.A., accompanied the parents to the June meeting and

requested that it be rescheduled for a time when J.A.'s teachers and related service

providers could be present. A.R. at 113. J.A.'s special education teacher provided


                                          2
a goals update summary, in which she indicated whether the IEP goals had been

mastered. A.R. at 114. She also prepared an IEP report card and a progress

report. A.R. at 115-17.

       The MDT considered those reports at its August meeting and determined

that J.A., indeed, had not made progress. A.R. at 215-16. The team, which did

not include J.A.'s teachers, discussed changing J.A.'s placement from West

Elementary School to Anne Beers Elementary School, a newly-created, self-

contained preschool program. PI. Statement of Material Facts ("PI. Facts"),-r,-r 16,

18; A.R. at 215. J.A.'s father stated that he disagreed with the proposed placement

and planned to enroll J.A. at a private school. A.R. at 215. On August 15,2007,

DCPS formally notified J.A. 's parents that lA. would be moved to Anne Beers.

A.R. at 217.

       The parents objected to this decision and, on November 1,2007, they filed

an administrative due process request seeking a half-day placement at Jenny

Waelder Hall, where they had enrolled J.A. for the 2007-2008 school year. A.R.

at 23; PI. Facts,-r 21. The due process hearing took place on December 20,2007,

and the Hearing Officer denied the parents' request shortly thereafter. A.R. at 3-6.

The officer found that the parents had not met their burden of proof to establish

that either the IEP or the proposed placement at Anne Beers was inappropriate.

A.R. at 5.

       Plaintiffs filed suit in this Court on April 2, 2008, seeking reversal of the

Hearing Officer's decision. Now pending are cross-motions for summary


                                           3
judgment. For the following reasons, defendants' motion is GRANTED, and

plaintiffs' motion is DENIED.

                                   DISCUSSION

         I. Standard of Review

     Summary jUdgment shall be rendered "if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the

initial burden of demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion

for summary judgment, however, "may not rely merely on allegations or denials

in its own pleading; rather, its response must ... set out specific facts showing a

genuine issue for trial." Fed. R. Civ. P. 56(e)(2). In deciding whether there is a

genuine issue of material fact, the Court must draw all justifiable inferences in

favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986).

       The IDEA guarantees children with disabilities the availability of a free

appropriate public education ("FAPE"). 20 U.S.C. § 1400(d)(1)(A). In designing

an appropriate education for students with disabilities, the child's parents,

teachers, school officials, and other professionals collaborate to develop an IEP to

meet the child's unique needs. 20 U.S.C. § 1414(d)(1)(B). When the parent

objects "to the identification, evaluation, or educational placement of the child, or


                                          4
the provision of a free appropriate public education to such child," he may seek an

impartial due process hearing. 20 U.S.C. §§ 1415(b)(6), 1415(f)(1). If the parent

is dissatisfied with the outcome of that hearing, he may appeal the decision to a

state court of competent jurisdiction or a federal district court. 20 U.S.C. §

1415(i)(2)(A).

         In deciding the appeal, this Court must grant relief as appropriate, based on

a preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)(iii). While the Court

makes an independent determination, it "must also give' due weight' to the

administrative proceeding and afford some deference to the expertise of the

hearing officer and school officials responsible for the child's education."·

Simmons v. Dist. o/Columbia, 355 F. Supp. 2d 12, 16 (D.D.C. 2004) (quoting

Lyons v. Smith, 829 F. Supp. 414, 418 (D.D.C. 1993)). The burden of proof rests

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 ex reI. Reidv. Dist. o/Columbia, 401 F.3d 516,521 (D.C. Cir. 2005)

(quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)).

          II. Analysis

         Parents who unilaterally decide to place their disabled child in a private

school without the consent oflocal authorities, as J.A.'s parents did, "do so at their

1 Plaintiffs argue that this Court should give the Hearing Officer's decision no deference because his
findings of fact and conclusions oflaw were not "regularly made," due to a lack of detail and a failure to
credit plaintiffs' witnesses. PI. Mot. at 11-20. However, as long as the decision is "sufficiently detailed to
permit the district court to understand the basis for the hearing officer's resolution of the parents' claims,"
the Court should afford it due deference. J.P. ex reI. Peterson v. County Sch. Ed., 516 F.3d 254, 261 (4th
Cir. 2008). The Hearing Officer's decision meets that low bar, and even if this Court granted his
assessment no deference, the administrative record fully supports his conclusions.


                                                       5
ownrisk." Florence CountySch. Dist. Fourv. Carter, 510 U.S. 7,15 (1993).

Parents may receive tuition reimbursement if the Court finds that (1) the public

placement violated the IDEA, and (2) the private school placement was proper

under the Act. Id. If the public school placement was appropriate, a disabled

child's parents are not entitled to reimbursement, and there is no need to analyze

the second factor. See Schoenbach v. Dist. o/Columbia, 309 F. Supp. 2d 71, 77

(D.D.C.2004). The appropriateness of the public school placement turns on two

further sub-issues: (1) whether DCPS complied with IDEA's procedural

requirements, and (2) whether the IEP was reasonably calculated to provide some

educational benefit to J.A. See id. at 78 (citing Bd.            0/ Educ.    v. Rowley, 458 U.S.

176,206-07 (1982». The answer to both these questions is a resounding yes.

How so?

                   A. Compliance with IDEA Procedural Requirements

        Plaintiffs initial challenge is to several alleged deficiencies in the

procedure followed by DCPS: (1) the failure to have a complete MDT present at

IEP meetings, (2) the failure to provide progress reports, (3) the failure to revise

the IEP, and (4) the proposal of an inappropriate program for J.A.2 PI. Mot. at 21-

29. These alleged procedural violations are actionable only if they affect the

student's substantive rights. Lesesne ex reI. B.F. v. Dist. o/Columbia, 447 F.3d

828, 834 (D.C. Cir. 2006). Because none of the defects identified by plaintiffs


2The third and fourth "deficiencies" are more properly characterized as questions of whether the IEP was
reasonably calculated to provide an educational benefit to the student. The Court will address these
allegations in Part ILB.


                                                    6
affected J.A.'s substantive rights, however, they must be "disregarded as

harmless." Razzaghi v. Dist. o/Columbia, 2005 U.S. Dist. LEXIS 36771, at *27

(D.D.C. Sept. 28, 2005); see also Roark ex rei. Roark v. Dist. o/Columbia, 460 F.

Supp. 2d 32, 42 (D.D.C. 2006).

       First, plaintiffs allege that the MDTs convened in June and August of 2007

failed to meet the requirements of20 U.S.C. § 1414(d)(1)(B), which mandates that

the IEP team include a regular educator and a special educator of the child. While

it is true that J .A. ' s regular education and special education teachers did not

participate in the June or August IEP sessions, the August meeting did include a

placement specialist for early childhood education at the CARE Center, who had

observed J.A. in the classroom; a DCPS speech pathologist; and a special

education teacher at the CARE Center. A.R. at 215-17; Hearing Tr. at 153. The

team also had written reports from J.A.'s special education teacher, indicating that

J.A. was not making progress. A.R. at 114-17.

       Plaintiffs argue that the omission of J .A. ' s teachers from the IEP meeting

"directly resulted in an IEP that is admittedly incomplete and, therefore,

inappropriate." PI. Mot. at 23-24. While the inclusion of J.A.'s teachers certainly

would have been ideal, as the IDEA recognizes, the August 2007 team did have

adequate substitutes, in the form of written progress reports from J .A.' s special

education teacher and the presence of at least one education specialist who had

observed J.A. in the classroom. Indeed, given the information presented to the

MDT, the Court does not see how the teachers' absence directly resulted in an IEP


                                            7
that was "inappropriate," and therefore a loss of educational opportunity. I .A. 's

special education teacher provided relevant information to the team in a written

form; the team used that information, in conjunction with their educational

expertise and knowledge of I.A., to conclude I.A. was not making progress and

changed his placement as a result. Plaintiffs therefore have not demonstrated that

this procedural defect caused J .A. any substantive harm. See Roark, 460 F. Supp.

2d at 42 (DCPS' failure to send a representative to an MDT meeting, a procedural

violation, did not cause substantive harm).

       Next is plaintiffs' allegation of a failure to provide monthly progress

reports before the June 2007 meeting. Although a more serious procedural

deficiency, it, too, should be disregarded as harmless. It is axiomatic that the

MDT can not properly review a student's IEP without first receiving the relevant

information. While J.A.'s progress reports were not completed in a timely

fashion, the MDT did have the necessary information before it made any decisions

affecting I.A.'s IEP or placement. Thus, while DCPS indisputably failed to meet

the requirements of the IEP by neglecting its obligation to provide monthly

progress evaluations, it did correct the defect and implemented a change of

placement intended to provide lA. with an appropriate education. Plaintiffs, who

chose to place J.A. in a private school before the change of placement occurred,

have pointed to no harm to J .A. 's substantive rights that resulted from this

procedural deficiency, and, accordingly, it is of no legal significance. See

Razzaghi, 2005 U.S. Dist. LEXIS 36771, at *27-28 (when DCPS failed to meet a


                                           8
procedural requirement but corrected the deficiency and provided student with an

appropriate education, plaintiffs were not entitled to reimbursement for private

tuition).

                 B. Suitability of IEP

       An IEP must be "reasonably calculated" to confer educational benefits on

the child, Rowley, 458 U.S. at 207, but it need not "maximize the potential of each

handicapped child commensurate with the opportunity presented non-handicapped

children." Id. at 200. Plaintiffs allege both that J.A.'s IEP and his placement at

Anne Beers were inappropriate, i.e., they were not reasonably calculated to confer

educational benefits. The Hearing Officer rejected both of these arguments, and

this Court, giving his decision due weight, does the same.

        Plaintiffs do not object to the original IEP per se. Instead, they insist that,

in the face of J .A.' s lack of progress, his IEP should have been revised. PI. Mot. at

27-28. While academic progress is an important factor in determining educational

benefit, Lyons, 829 F. Supp. at 418, there is little evidence in the record that the

IEP as originally constructed was not reasonably calculated to confer such a

benefit. Rather, the information provided to the MDT led the team to conclude

that J.A.'s placement at West, not the IEP itself, was the source of his lack of

progress. As a result, the team placed J.A. at a school that would more adequately

fulfill his need for a small class size and structured environment while still

providing the services required by his IEP. Plaintiffs provide no evidence that the

original IEP - rather than the placement at West Elementary - was the source of


                                            9
J.A.'s lack of progress. The Court therefore has no basis to conclude that the IEP

should have been revised, and it will not overturn the Hearing Officer's decision

on those grounds.

       Plaintiffs further argue that the placement at Anne Beers was inappropriate

because lA.'s IEP was based on incomplete information and, "where an IEP is

based on incomplete information, it is necessarily inappropriate, as is any

placement based on it." PI. Mot. at 29. Because the Court determined that lA.'s

IEP was based on adequate information, see Part II.A, supra, this argument

necessarily fails.

       Moreover, the evidence in the record supports the Hearing Officer's

conclusion that Anne Beers was an appropriate placement for J.A. DCPS'

witnesses - educational specialists with experience at Anne Beers - testified that

the school was a structured environment with a low noise level and smaller class

size, which administered the services required by lA.'s IEP. Hearing Tr. at 123-

25,129-31, l70-73. These attributes align almost exactly with those

recommended by J.A.'s educational advocate, who suggested a classroom with

high structure and low noise level. Def. Mot. at 12; A.R. at 158. Plaintiffs argue,

based on a single visit to Anne Beers, that it was not the right place for J.A. A.R.

at 156-59. But given the limited basis for this assessment, and the indisputable

requirement that courts must "afford some deference to the expertise of the ...

school officials responsible for the child's education," Lyons, 829 F. Supp. at 418,




                                         10
this Court will not overturn the Hearing Officer's determination that Anne Beers

was an appropriate placement for J.A.

       Therefore, because the public school placement proposed by DCPS was

appropriate, plaintiffs' request for reimbursement of private school costs must fail.

                                  CONCLUSION

       The IDEA "guarantees a free appropriate education, [but] it does not ...

provide that this education will be designed according to the parent's desires."

Shaw v. Dist. o/Columbia, 238 F. Supp. 2d 127, 139 (D.D.C. 2002) (citing

Rowley, 458 U.S. at 207). "Thus, proof that loving parents can craft a better

program than the state offers does not, alone, entitle them to prevail under the

Act." Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988). Jenny Waelder

Hall may well be a better environment for lA., but DCPS has made available a

free appropriate public education to this child, and, in such circumstances, DCPS

cannot be required to pay for the education his parents would prefer.

       Therefore, for the foregoing reasons, the Court GRANTS defendants'

motion for summary judgment, and DENIES plaintiffs' motion for summary

judgment.

                                                ~ll J                __
                                                  RICHA~
                                                  United States District Judge




                                         11
