                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ROSEINIA GARMANY,             )
                              )
     Plaintiff,               )
                              )
     v.                       )      Civil Action No. 10-1039 (RWR)
                              )
DISTRICT OF COLUMBIA,         )
                              )
     Defendant.               )
______________________________)


                          MEMORANDUM OPINION

     Plaintiff Roseinia Garmany brings this action on behalf of

her son D.G. against the District of Columbia (the “District”)

under the Individuals with Disabilities in Education Act, as

amended by the Individuals with Disabilities in Education

Improvement Act (collectively, “IDEA”), 20 U.S.C. § 1400 et seq.

The parties have cross-moved for summary judgment, disputing

whether the hearing officer erred in dismissing Garmany’s due

process complaint.    Because Garmany has not satisfied her burden

of showing that the hearing officer erred, summary judgment will

be granted in favor of the District.

                              BACKGROUND

     During the 2009 to 2010 school year, D.G. was a student at

Lincoln Middle School (“Lincoln”) in Washington D.C.

Administrative Record (“AR”) at 303.       A January 3, 2010

psychological evaluation classified D.G. as a learning disabled
                                - 2 -

student and stated that “frequent suspensions are not the remedy

for [D.G.’s] behaviorial problems[.]”   Id. at 313-14.   On

January 11, 2010, the District of Columbia Public Schools

(“DCPS”) convened a multi-disciplinary team (“MDT”) meeting,

attended by Garmany and D.G., to review D.G.’s 2009

individualized education program (“IEP”) and draft a new IEP

(“January IEP”).   Id. at 334-37, 362-400.1   In conjunction with

the January IEP, the MDT developed a behavioral improvement plan

(“BIP”) which includes a scheme of rewards and consequences for

D.G.’s behavior in school.   Id. at 335-36, 405-06.   At the end of

the school day on January 29, 2010, D.G. had a dispute with

another student during which he accidentally struck his teacher.

Id. at 920, 1067-68.   Lincoln dismissed D.G. from school, id. at

920, 1068, and according to Garmany, imposed on D.G. a three-day

suspension which D.G. served in an in-school suspension (“ISS”)

on February 1 and 2, and an out-of-school suspension on February

3.   Id. at 937.   D.G. got in a fight on February 4 and spent the

rest of that school day in an in-school suspension.    Id. at 921,



      1
       Although the version of the January IEP contained on pages
362 to 400 of the administrative record reflects that it is a
draft, the defendants cite to the document as the January IEP and
the plaintiffs do not dispute this issue. See Def.’s Stmt. of
Material Facts ¶¶ 11, 12; Pl.’s Resp. to the Def.’s Stmt. of
Material Facts ¶ 3. The administrative record table of contents
states that the January IEP is included at pages 945 to 1031, but
that portion of the record includes a document called the Final
Eligibility Determination Report which appears to summarize the
psychological report used in preparation for the January IEP.
                                    - 3 -

938.       On February 5, 2010,2 Garmany filed an administrative due

process complaint alleging that by imposing these suspensions,

DCPS failed to implement D.G.’s January IEP.       Garmany’s complaint

also asserted that Lincoln was an inappropriate placement for

D.G. and could not provide for D.G.’s educational needs.         Id. at

939-40.       D.G.’s new IEP (“February EIP”) was finalized on

February 19, 2010 and DCPS issued a placement notice for D.G. to

attend Hamilton Academy (“Hamilton”).       Id. at 1147-48, 1158-59.

       In March 2010, the hearing officer held a hearing and issued

a determination and order dismissing Garmany’s due process

complaint.       Id. at 917-30.   Ruling on the issue of the propriety

of Lincoln’s actions on January 29 and February 4, the hearing

officer found that D.G.’s January 29 dismissal was not a

suspension, and that D.G. was in school attending classes in the

ISS room on February 4, 2010.       Id. at 924.   The hearing officer

stated that D.G.’s day in the ISS room on February 4 was not a

suspension in violation of the January IEP because D.G. received

services in school and the MDT had discussed using the ISS room

after D.G.’s behavioral infractions when preparing the January

IEP.       Id. at 925.   In addition, the hearing officer concluded

that the February 3 out-of-school suspension was not a “material



       2
       It is undisputed that although the due process complaint
is dated January 4, 2010, it was filed on February 5, 2010.
Def.’s Stmt. of Material Facts ¶ 36 n.2 (citing AR at 942, 944);
Pl.’s Resp. to Def.’s Stmt. of Material Facts ¶ 22.
                               - 4 -

failure” to implement the January IEP.   Id.   The hearing officer

also found that Hamilton was an appropriate placement for

implementing D.G.’s February IEP because “it provides the small

class structure and the intensive behavioral support services

that [D.G.] needs . . ., and the program is reasonably designed

to confer educational benefit to [D.G.].”   Id. at 929.

     The plaintiffs move for summary judgment seeking reversal of

the hearing officer’s determination (“HOD”) arguing that DCPS

failed to implement D.G.’s January IEP and Hamilton is an

inappropriate placement for implementing D.G.’s February IEP.     In

particular, Garmany asserts that the January IEP and BIP

prohibited in-school and out-of-school suspensions and DCPS did

not use the measures outlined in the BIP for D.G.’s misbehavior.

Pl.’s Mem. of P. & A. in Supp. of its Mot. for Summ. J. (“Pl.’s

Summ. J. Mem.”) at 12-13; Pl.’s Opp’n to Def.’s Cross-Mot. for

Summ. J. and Reply to the Def.’s Opp’n to Pl.’s Mot. for Summ. J.

(“Pl.’s Opp’n”) at 6-7.3   Garmany also argues that the hearing

officer erred in finding that Hamilton was an appropriate


     3
      In addition, Garmany argues that DCPS did not fulfill its
obligation to provide services to allow D.G. to continue his
educational progress during the purported suspensions. Pl.’s
Summ. J. Mem. at 13-14; Pl.’s Opp’n at 7. However, the record
reflects that Garmany did not raise this argument in the
administrative due process complaint and the HOD does not reflect
that this issue was litigated at the due process hearing. See AR
at 919, 934-44. Therefore, this argument may not be raised for
the first time here. See Shaw v. District of Columbia, 238 F.
Supp. 2d 127, 140 (D.D.C. 2002).
                                 - 5 -

placement because Garmany was not sufficiently involved in the

placement decision process and because Garmany’s testimony at the

administrative hearing reflected that Hamilton could not

implement D.G.’s February IEP.    Pl.’s Summ. J. Mem. at 14-17.

     The District cross-moves for summary judgment arguing that

the January IEP and the BIP did not prohibit suspensions as a

punishment for D.G. and, even if they did, that DCPS did not

suspend D.G.   Def.’s Mem. in Supp. of Def.’s Cross-Mot. for Summ.

J. and Opp’n to Pl.’s Mot. for Summ. J. at 12-17.   The District

also argues that even if D.G. was suspended for one day, that

suspension did not deny D.G. a free and appropriate education

(“FAPE”).   Id. at 17-18.   In addition, the District asserts that

Hamilton was an appropriate placement for D.G. and that any

procedural violation concerning Garmany’s participation in the

placement decision may not be raised for the first time in

reviewing the HOD.    Id. at 18-21.

                             DISCUSSION

     The IDEA provides that any party aggrieved by an

administrative due process HOD has the right to bring a civil

action in any district court within 90 days of the hearing

officer’s decision.   20 U.S.C. § 1415(i)(2)(A)-(B).   The 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
                               - 6 -

the evidence, shall grant such relief as the court determines is

appropriate.”   20 U.S.C. § 1415(i)(2)(C).

     The parties have cross-moved for summary judgment under Rule

56(a) which provides for entry of summary judgment if there is

“no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”    Fed. R. Civ. P. 56(a).

Rule 56 requires the entry of summary judgment “‘against a party

who fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.’”   J.J. v. District

of Columbia, 768 F. Supp. 2d 214, 217 (D.D.C. 2011) (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).    “In an

action challenging a hearing officer’s decision under the IDEA

where both parties move for summary judgment, the motions are

treated as motions for judgment based on the evidence in the

record if neither party introduces additional evidence.”   Id.

(citing Stanton ex rel. K.T. v. District of Columbia, 680 F.

Supp. 2d 201, 205 (D.D.C. 2010)).   Courts have recognized that

“HODs are reviewed under a ‘non-deferential standard,’ . . . but

the challenging party ‘must at least take on the burden of

persuading the court that the hearing officer was wrong.’”

Cousins v. District of Columbia, 880 F. Supp. 2d 142, 147 (D.D.C.

2012) (quoting Reid ex rel. Reid v. District of Columbia, 401

F.3d 516, 521-22 (D.C. Cir. 2005)).    “However, a court shall not
                                   - 7 -

‘substitute [its] own notions of sound educational policy for

those of the school authorities which [it] review[s].’”       Id.

(alterations in original) (quoting Kerkam v. McKenzie, 862 F.2d

884, 887 (D.C. Cir. 1988)).

       In this case, the central issues are whether the hearing

officer erred in finding that Garmany did not meet her burden to

show 1) that D.G.’s suspension constituted a failure to implement

D.G.’s January IEP; and 2) that Hamilton was an inappropriate

placement for implementing D.G.’s February IEP.

I.     FAILURE TO IMPLEMENT JANUARY IEP

       Garmany challenges the hearing officer’s decision that

Garmany did not show that DCPS failed to implement D.G.’s January

IEP.       Pl.’s Summ. J. Mem. at 12.   “Although the D.C. Circuit has

not yet squarely addressed the question of what standard governs

failure-to-implement claims under the IDEA, the consensus

approach to this question among the federal courts that have

addressed it has been to adopt the standard articulated by the

Fifth Circuit in Houston Independent School District v. Bobby R.,

200 F.3d 341, 349 (5th Cir. 2000).”        Wilson v. District of

Columbia, 770 F. Supp. 2d 270, 274 (D.D.C. 2011) (footnote

omitted).4      In Bobby R., the Fifth Circuit stated:


       4
       “The D.C. Circuit has noted that, because the IDEA defines
‘free appropriate public education’ to mean special educational
services that are, inter alia, ‘provided in conformity with’ a
student’s IEP, 20 U.S.C. § 1401(9)(D), a ‘complete failure’ to
implement a student’s IEP is ‘undoubtedly’ a denial of an
                               - 8 -

     [A] party challenging the implementation of an IEP must
     show more than a de minimis failure to implement all
     elements of that IEP, and, instead, must demonstrate
     that the school board or other authorities failed to
     implement substantial or significant provisions of the
     IEP. This approach affords local agencies some
     flexibility in implementing IEP’s, but it still holds
     those agencies accountable for material failures and
     for providing the disabled child a meaningful
     educational benefit.

Bobby R., 200 F.3d at 349.   The analysis must consider “whether

the aspects of the IEP that were not followed were ‘substantial

or significant,’ or, in other words, whether the deviations from

the IEP’s stated requirements were ‘material.’”   Catalan ex rel.

E.C. v. District of Columbia, 478 F. Supp. 2d 73, 75 (D.D.C.

2007) (quoting Bobby R., 200 F.3d at 349).

     [T]he materiality standard does not require that the child
     suffer demonstrable educational harm in order to prevail on
     a failure-to-implement claim. . . .    Rather, courts
     applying the materiality standard have focused on the
     proportion of services mandated to those actually provided,
     and the goal and import (as articulated in the IEP) of the
     specific service that was withheld.

Wilson, 770 F. Supp. 2d at 275 (internal citation and quotation

marks omitted).

     At the administrative hearing, the plaintiff claimed that

DCPS failed to implement D.G.’s January IEP because suspending

D.G. violated the IEP.   The hearing officer found that the text




appropriate education under the IDEA.” Wilson, 770 F. Supp. 2d
at 274 n.1 (quoting Abney ex rel. Kantor v. District of Columbia,
849 F.2d 1491, 1496 n.3 (D.C. Cir. 1988)).
                                 - 9 -

of the January psychological evaluation5 disparaging frequent

suspensions prohibited out-of-school suspensions, but that it did

not address the distinction between in-school and out-of-school

suspensions and that the in-school suspension in this case was

not prohibited.   AR at 925.   The hearing officer relied in part

on testimony that the team that prepared the January IEP and BIP

discussed the ISS room as a place for D.G. to re-focus after he

misbehaved.   Id. at 920; see id. at 1539-40 (reflecting the

testimony of Resheeda Hinkson, the Special Education Coordinator

at Lincoln, who said that the MDT agreed at the January MDT

meeting to allow the use of the ISS room pending the development

of D.G.’s February IEP).   The hearing officer found that Garmany

did not establish that D.G. was suspended on January 29, 2010,

and found that D.G. “was in school, attending classes in the ISS

room” on February 4, 2010.     Id. at 924.   The hearing officer

stated that under the comments to federal regulations governing

the Department of Education’s discipline procedures for students

with disabilities, ISS is not a suspension where the student

continues to receive the services required by the student’s IEP.

Id. at 925.   The HOD concluded that D.G.’s time in the ISS room

on Febrary 4 was not a suspension because D.G. received services




     5
       The hearing officer referred to it as the January “IEP.”
AR at 925.
                               - 10 -

in school and the participants in the January MDT meeting

discussed using the ISS room when D.G. misbehaved.     Id.

       Garmany argues that the hearing officer erred by not

addressing the issue of whether DCPS failed to implement D.G.’s

IEP by not imposing on D.G. the consequences specified in the

BIP.   Pl.’s Summ. J. Mem. at 12-13.    Garmany further argues that

suspensions were purposefully omitted in the BIP’s listed

punishments and sending D.G. to the ISS room violated the IEP.

The BIP provided that when D.G. misbehaved, D.G. would have to

“participate in the extended learning day program in his resource

room[,]” do “research on his infraction” and provide “a written

explanation of why [he] committed this infraction and why

restitution is important.”   AR at 406.    In addition, D.G. would

have to “call his mother at the moment of the infraction to

explain why this infraction occurred and why he was now engaged

in restitution.”   Id.   Garmany alleges that instead of following

the BIP, DCPS violated the IEP when it suspended D.G. by placing

him in the ISS room.

       Garmany relies on the testimony of Hinkson who stated that

“suspension was not an option” at the January MDT meeting to

prepare the January IEP and BIP.   See id. at 1559-60.       However,

Hinkson also testified that she was referring only to out of

school suspension.   See id. at 1565.     Besides this testimony,

Garmany simply asserts that the omission of suspensions in the
                               - 11 -

BIP means that all suspensions were prohibited by the IEP and the

school could impose only the listed punishments.   Pl.’s Opp’n at

6-7.   This assertion, without further support in the record, does

not carry the burden to show that the hearing officer erred in

finding that the in-school suspension did not violate the January

IEP and that the one-day out-of-school suspension was not a

material violation.   In particular, Garmany has not addressed how

the ISS in this case undermined the goals and import of the

January IEP or shown that the January IEP precluded any

punishment options other than the BIP’s listed consequences.

This is especially true since the team preparing the January IEP

specifically contemplated the use of the ISS room as a

destination for D.G. when he misbehaved.   See AR at 920, 925,

1540-41.   Because the plaintiff has not carried her burden to

establish from the administrative record that the hearing officer

erred in finding no failure to implement the January IEP, the

District will be granted summary judgment on this ground.

II.    APPROPRIATE PLACEMENT

       Garmany challenges the hearing officer’s decision that

Hamilton was an appropriate placement for implementing D.G.’s

February IEP, arguing that DCPS did not allow sufficient parental

participation in the placement decision and that Garmany

testified that she objected to the Hamilton placement.    Pl.’s

Summ. J. Mem. at 14-17; Pl.’s Opp’n at 8-10.   “The IDEA’s
                               - 12 -

procedural safeguards help ensure that parents are able to

participate fully in decisions affecting their child’s

education.”    J.N. v. District of Columbia, 677 F. Supp. 2d 314,

320 (D.D.C. 2010); see also Long v. District of Columbia, 780 F.

Supp. 2d 49, 59 (D.D.C. 2011) (“The parent must have a full,

meaningful opportunity to participate in the placement

decision.”).   “The question of whether a public school placement

is appropriate rests on ‘(1) whether DCPS has complied with

IDEA’s administrative procedures and (2) whether or not the IEP

. . . was reasonably calculated to provide some educational

benefit to [the student.]’”   J.N., 677 F. Supp. 2d at 322

(alterations in original) (quoting Schoenbach v. District of

Columbia, 309 F. Supp. 2d 71, 78 (D.D.C. 2004)).   Where the

plaintiff fails to raise a procedural claim that she was denied

an opportunity to participate in the placement decision at the

administrative level, the plaintiff may not later raise it before

a district court.   Long, 780 F. Supp. 2d at 59.

     Here, after DCPS issued its February 19, 2010 notice that

D.G. would be placed at Hamilton, the placement issue before the

hearing officer was modified to “whether DCPS failed to provide

[D.G.] with an appropriate location for the provision of services

specified in [D.G.’s] 02/19/10 IEP.”    See AR at 918.   The HOD

does not reflect any dispute about Garmany’s parental

participation in the placement decision.   See id. at 926-30.
                                - 13 -

Garmany does not assert that she raised this issue before the

hearing officer at any point.    Garmany may not raise this

argument in this court since she did not raise it before the

hearing officer.   See Long, 780 F. Supp. 2d at 59.

     Garmany also argues that the hearing officer erred in

finding that DCPS offered an appropriate placement.6    The issue

at the administrative hearing was the location of the services,

not the Hamilton placement.   Nonetheless, the hearing officer

considered the record, including Garmany’s testimony and the

testimony of Dr. Deborah Mosley, Hamilton’s Special Education

Coordinator, and found that Hamilton was an appropriate placement

because Hamilton could implement D.G.’s February IEP.    AR at 927;

see id. at 1398-99, 1494, 1496.    In addition, the HOD discusses

the individual components of D.G.’s February IEP and states that

Hamilton would be able to implement the February IEP’s

requirements.   Id. at 927.




     6
       In the HOD, the hearing officer discussed the difference
between the terms “placement” and “location” and stated that
Garmany did not contest that Hamilton could provide the type of
services required by the IEP. AR at 926 (“While ‘placement’ is
the points along the continuum of placement options available for
a child with a disability, ‘location’ is the physical
surrounding, such as the classroom, in which a child with a
disability receives special education and related services.”).
DCPS is required to offer the student “placement in a school that
can fulfill the requirements set forth in the IEP.” O.O. ex rel.
Pabo v. District of Columbia, 573 F. Supp. 2d 41, 53 (D.D.C.
2008).
                               - 14 -

      Here, Garmany proffers as evidence that the hearing officer

erred simply her own testimony at the administrative hearing that

Hamilton was an inappropriate placement based on her visit to the

school.   See Pl.’s Opp’n at 10.    However, while Garmany voiced

specific concerns about the Hamilton placement, she admitted that

Hamilton could implement the IEP.    See AR at 1359, 1362-69, 1398-

99.   Moreover, the hearing officer did not rely only on Garmany’s

admission that Hamilton could implement the February IEP.    The

hearing officer also cited Dr. Mosley’s testimony and evaluated

Hamilton’s ability to implement the specialized instruction and

behavioral support service components of D.G.’s IEP based on the

record.   See AR at 927.   Garmany has not shown that the hearing

officer was incorrect in finding, despite Garmany’s testimony,

that Hamilton was an appropriate placement to provide D.G. the

services required by the February IEP.    Thus, Garmany has not

satisfied the “‘the burden of persuading the court that the

hearing officer was wrong[,]’” Cousins, 880 F. Supp. 2d at 147

(quoting Reid, 401 F.3d at 521), and on appeal this court should

not “‘substitute [its] own notions of sound educational policy

for those of the school authorities which [it] review[s][,]’” id.

(alterations in original) (quoting Kerkam, 862 F.2d at 887).

Because Garmany has not shown that the hearing officer erred in

finding that Hamilton was an appropriate placement, the District

is entitled to summary judgment on this ground.
                              - 15 -

                            CONCLUSION

     Garmany has not shown by a preponderance of the evidence

that the hearing officer erred in concluding that DCPS did not

fail to implement D.G.’s January IEP and that Hamilton is an

appropriate placement for implementing D.G.’s February IEP.

Therefore, Garmany’s motion for summary judgment will be denied

and the District’s cross-motion for summary judgment will be

granted.   An appropriate Order accompanies this memorandum

opinion.

     SIGNED this 30th day of March, 2013.



                                       /s/
                               RICHARD W. ROBERTS
                               United States District Judge
