                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA


THERESA JAMES,                                       )
Parent and Next Friend ofE.J., a minor               )
                                                     )
E.J.,                                                )
individually                                         )
                                                     )
               Plaintiffs,                           )
                                                     )
                 v.                                  )   Civil Case No. 12-376 (RJL)
                                                     )
DISTRICT OF COLUMBIA                                 )
                                                     )
               Defendant.                            )


                              MEMORANDUM OPINION
                             (June~2013) (Dkts. ##10, 12)


       Plaintiffs Theresa James ("James") and her son E.J. (together, "plaintiffs") bring

this action against the District of Columbia under the Individuals with Disabilities

Education Act, 20 U.S.C. § 1400 et seq., ("IDEA"). They challenge an administrative

determination for the 20 11-20 12 school year denying them tuition reimbursement and

concluding that the District did not violate the IDEA. See Compl. [Dkt. #1]. Plaintiffs

and defendant have filed cross motions for summary judgment. See Pis.' Mot. Summ. J.

[Dkt. #10]; Def.'s Cross Mot. Summ. J. [Dkt. #12]. Upon consideration ofthe parties'

pleadings, applicable law, and the complete administrative record in this case, the Court

DENIES plaintiffs' motion and GRANTS defendant's cross motion.


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                                      BACKGROUND

       E.J ., a resident of the District of Columbia, is a fifteen-year-old student at

Accotink Academy ("Accotink"), a private school in Springfield, Virginia. Pls.'

Statement ofMaterial Facts [Dkt. #10] ~ 1; Administrative Record ("AR") [Dkt #9] at 78.

His mother, Theresa James, unilaterally placed him there at the start ofthe 2011-2012

school year. AR at 78. E.J. has educational disabilities that entitle him under the IDEA

to receive special education and related services from District of Columbia Public

Schools (DCPS). Pls.' Statement of Material Facts ~ 1. He attended the Kelly Miller

Middle School ("Kelly Miller") for his eighth grade school year (2010-2011). !d.         at~   2.

In February 2011, E.J. was referred for a Comprehensive Psychological Evaluation. AR

at 21. The evaluator recommended that several changes be made to E.J's Individualized

Education Program ("IEP"). AR at 34-35. Thus, a new IEP calling for a full-time out of

general education placement was established on May 6, 2011. AR at 43. E.J.'s mother

attended the IEP meeting at which E.J.'s new educational program was developed. !d.

The IEP provides for 28.5 hours of specialized instruction per week, two hours of speech

and language therapy per month, and four hours of behavioral services per month. AR at

51.

      The IEP team also recommended that E.J. transfer for the remainder ofthe spring

2011 semester to Hamilton Academy ("Hamilton") in the District of Columbia, a school

they contended was the better equipped to implement the full-time out of general



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education placement called for by his new IEP. AR at 59, 395-96. James, however,

objected to this placement, AR at 396, and filed a due process complaint on June 29,

2011, AR at 64. Hamilton was subsequently closed by DCPS in June 2011. AR at 115.

On August 4, 2011, E.J.'s compliance case manager selected Spectrum at Phelps

("Spectrum") as an appropriate replacement site. AR at 79, 402-05. James again

objected and chose to enroll her son at Accotink while her due process complaint was

still pending. AR at 78.

       On September 26, 2011, the Hearing Officer determined that plaintiffs' June 29,

2011 due process complaint failed to show that DCPS denied E.J. a free appropriate

public education ("FAPE"). See AR at 100-112. Indeed, the Hearing Officer's

Determination ("HOD") specifically concluded that E.J. 's placement at Spectrum for the

2011-2012 school year was appropriate, stating that Spectrum "can implement the May

6, 2011 IEP, fits [E.J.'s] needs, and would be reasonably calculated to provide

educational benefit to [E.J.]." AR at 110-11. Plaintiffs did not appeal the September 26,

2011 HOD.

       Instead, on September 30, 2011, plaintiffs filed a second due process complaint

seeking tuition reimbursement for a private school placement and claiming that DCPS

denied E.J. a FAPE by (1) failing to include E.J.'s parents in the selection of Spectrum as

the new location of services following Hamilton's closure, and (2) failing to determine

and provide an appropriate placement for E.J. for the 2011-2012 school year. AR at 114.



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On November 8, 2011, the Hearing Officer ruled that the merits of plaintiffs'

inappropriate placement claim had been litigated to a final judgment in connection with

plaintiffs' first due process complaint and was therefore barred by the doctrines of

collateral estoppel and res judicata. AR at 177-78. On December 8, 2011, a hearing was

held to determine whether DCPS should have consulted E.J.'s parents before selecting

Spectrum as the new location of services. AR at 6. The Hearing Officer ruled on

December 13, 2011 that DCPS' selection did not constitute a change in E.J.'s

"educational placement" requiring parental involvement. AR at 11-12.

       On March 9, 2012, plaintiffs filed the instant complaint appealing, in essence, the

HOD issued on December 13, 2011. See Compl. Plaintiffs filed a Motion for Summary

Judgment on October 11,2012, arguing that: (1) DCPS denied E.J. a FAPE by failing to

include plaintiffs in the selection of Spectrum as the new location of services; (2) the

Hearing Officer erred in deciding the res judicata issue; (3) DCPS denied E.J. a FAPE by

failing to provide an appropriate placement; and (4) plaintiffs are entitled to tuition

reimbursement. See Pls.' Mot. Summ. J. Defendant filed its Cross Motion for Summary

Judgment on December 11, 2012. See Def.'s Cross Mot. Summ. J.

                                STANDARD OF REVIEW

       Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate

when the evidence in the record demonstrates that "there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ.


                                              4
P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When evaluating

cross motions for summary judgment, "the court shall grant summary judgment only if

one of the moving parties is entitled to judgment as a matter of law upon material facts

that are not genuinely disputed." Select Specialty Hasp. -Bloomington, Inc. v. Sebelius,

774 F. Supp. 2d 332, 338 (D.D.C. 2011) (citation omitted). The court must accept as true

the evidence of, and draw "all justifiable inferences" in favor of the party opposing

summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A

genuine issue exists only where "the evidence is such that a reasonable jury could return

a verdict for the nonmoving party." !d. at 248.

       The IDEA provides for judicial review in state or federal court for "[a]ny party

aggrieved by the findings and decision" rendered during administrative proceedings. 20

U.S.C. §1415(i)(2). The reviewing court "shall receive the records ofthe administrative

proceedings, shall hear additional evidence at the request of a party, and, basing its

decision on the preponderance of the evidence, shall grant such appropriate relief as the

court determines appropriate." 20 U.S.C. §1415(i)(2)(C). The party challenging the

administrative determination bears 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) (quotations and citations omitted). In reviewing the HOD, the Court must 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." Lyons

ex rel. Alexander v. Smith, 829 F. Supp. 414,418 (D.D.C. 1993). The Court may not

                                              5
"substitute [its] own notions of sound educational policy for those of the school

authorities which [it] reviews." Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist.,

Westchester Cnty. v. Rowley, 458 U.S. 176, 206 (1982).

                                        ANALYSIS

       The issues now before the Court are whether: (1) DCPS denied E.J. a FAPE by

failing to include his parents in the selection of Spectrum; (2) the Hearing Officer erred in

deciding that plaintiffs' inappropriate placement claim is barred by the doctrines of

collateral estoppel and res judicata; (3) DCPS denied E.J. a FAPE by failing to provide an

appropriate placement for the 2011-2012 school year; and (4) plaintiffs are entitled to

tuition reimbursement. I will address each of these issues in tum.

       First, with regard to the exclusion of E.J. 's parents from the selection of Spectrum,

I find that DCPS' selection did not constitute a change in E.J. 's educational placement

requiring parental involvement. E.J. 's "educational placement" consists of the

educational program described in the IEP developed on May 6, 2011. See White ex rei.

White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir. 2003) ('"Educational

placement,' as used in the IDEA, means educational program-not the particular

institution where the program is implemented."); Roher v. District of Columbia, Civ. A.

Nos. 89-2425, 89-2503, 1989 WL 330800, at *3 (D.D.C. Oct. 11, 1989) ("'[P]lacement'

refers to the overall educational program offered, not the mere location of the program.").

While the IDEA requires a student's parents to be part of the team that creates the IEP


                                             6
and determines the educational placement of the child, it does not "explicitly require

parental participation in site selection." White, 343 F.3d at 379. Here, E.J.'s mother

attended the meeting at which his new IEP was developed. AR at 43. A change in

location of services does not constitute a change in educational placement where the

"new setting replicates the educational program contemplated by the student's original

assignment." A. W v. Fairfax Cnty. Sch. Bd., 372 F.3d 674, 682 (4th Cir. 2004). Here,

the Hearing Officer correctly found the educational settings at Hamilton and Spectrum to

be "substantially and materially similar." AR at 11. Spectrum, like Hamilton, provides a

full-time out of general education program, is equipped to address the needs of students

with E.J.' s disability classification, and offers all of the services described in E.J. 's IEP.

AR at 249, 266, 296, 298-99, 398, 400. Accordingly, E.J.'s reassignment to Spectrum

did not require DCPS to involve his parents or his IEP team, and there was no denial of a

FAPE. 1

       Next, with respect to whether plaintiffs' inappropriate placement claim is barred, I

agree with the Hearing Officer that the doctrine of collateral estoppel bars consideration

of that claim, which was previously litigated in connection with plaintiffs' June 29, 2011

due process complaint. Under the doctrine of collateral estoppel, or issue preclusion, a


1The IDEA defines FAPE as "special education and related services that (A) have been
provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency; (C) include an appropriate
preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required .... "
20 U.S.C. § 1401(9).

                                                7
prior judgment bars "successive litigation of an issue of fact or law actually litigated and

resolved in a valid court determination essential to the prior judgment." Gulf Power Co.

v. F.C.C., 669 F.3d 320,323 (D.C. Cir. 2012) (quotations and. citation omitted). Even

though plaintiffs' June 29, 2011 due process complaint predated DCPS' selection of

Spectrum, the appropriateness of this location of services was actually litigated and

resolved in the administrative proceeding. Because plaintiffs' June 29 due process

complaint requested funding for a private placement, it was essential for the Hearing

Officer to make a finding about the alternative proposed by DCPS. See NG. v. District

of Columbia, 556 F. Supp. 2d 11, 37 (D.D.C. 2008) ("The IDEA's grant of equitable

authority empowers a court to order school authorities to reimburse parents for their

expenditures on private special education for the child if the court ultimately determines

that such placement, rather than a proposed IEP, is proper under the Act.") (citations and

quotations omitted). On September 26, 2011, the Hearing Officer denied plaintiffs'

requested relief, concluding that Spectrum "can implement the May 6, 2011 IEP, fits

[E.J.'s] needs, and would be reasonably calculated to provide educational benefit to the

student." AR at 110-11. Accordingly, the September 26, 2011 HOD resolved plaintiffs'

inappropriate placement claim as to both Hamilton and Spectrum and thus bars

successive litigation of this issue under the doctrine of collateral estoppel.

       Third, with respect to plaintiffs' denial ofF APE claim, I find that Spectrum was

an appropriate location of services for E.J., and therefore DCPS did not deny him a

FAPE. Under the IDEA, an appropriate location of services is one which can implement

                                               8
a student's IEP and meet his specialized educational and behavioral needs. See 20 U.S.C.

§1401(9); N.G. v. District of Columbia, 556 F. Supp. 2d at 37. The administrative record

here unequivocally establishes that Spectrum would have been able to provide the full

time special educational, instructional, and behavioral services required by E.J.'s IEP.

See, e.g., AR at 350, 352-53, 356-57, 384, 392-93, 398, 400. As such, defendant is also

entitled to summary judgment on this point.

       Finally, with respect to plaintiffs' claim for tuition reimbursement, I conclude that

plaintiffs are not entitled to tuition reimbursement as the educational program and site

proposed by DCPS comply with the IDEA's FAPE requirement. See Sch. Comm. of

Burlington v. Dep 't ofEduc. of Mass., 471 U.S. 359 (1985); 20 U.S.C.

§1412(a)(10)(C)(i). "Parents who choose unilaterally to place their disabled child in a

private school without the agreement of the school district 'do so at their own risk', and

are entitled to reimbursement only if a court concludes that the placement approved by

the school officials violates the IDEA and that the private school placement is proper

under the IDEA." Roark v. District of Columbia, 460 F. Supp. 2d 32,45 (D.D.C. 2006)

(quotations and citation omitted). Plaintiff, in essence, rolled the dice and lost. Summary

judgment, accordingly, must also be in favor of the defendant on this point.




                                              9
                                  CONCLUSION

      For all of the foregoing reasons, the Court GRANTS defendant's Motion for

Summary Judgment and DENIES plaintiffs Motion for Summary Judgment. An order

consistent with this decision accompanies this Memorandum Opinion.



                                              ([,'
                                               ~c:!i:!&:!
                                               United States District Judge




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