                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
DISTRICT OF COLUMBIA,               )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )               Civil Action No. 12-01527 (ABJ)
                                    )
DOUG WOLFIRE,                       )
                                    )
                  Defendant.        )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff District of Columbia filed this case on behalf of the District of Columbia Public

Schools (“DCPS”) and the Local Education Agency (“LEA”), seeking judicial review of an

administrative due process hearing decision (“HOD”). The challenged HOD determined that

plaintiff violated the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et

seq., when it failed to develop an IEP for J.W. – a student residing in the District of Columbia

who has been identified as a student with disabilities. Defendant Doug Wolfire is the father of

J.W. and appears as next of friend to his son.

       The case was referred to Magistrate Judge Robinson for full case management pursuant

to Federal Rule of Civil Procedure 72.3. See Sept. 17, 2012 Order Referring Case [Dkt. # 5].

The parties subsequently filed cross-motions for summary judgment, see Pl.’s Mot. for Summ. J.

(“Pl.’s Mot.”) [Dkt. # 13]; Def.’s Mem. in Supp. of Def.’s Cross-Mot. for Summ. J. [Dkt. # 14],

and Magistrate Judge Robinson issued a Report and Recommendation suggesting that defendant

is entitled to summary judgment and upholding the HOD.           See Sept. 6, 2013 Report and

Recommendation (“Report”) at 9 [Dkt. # 20]. Plaintiff filed timely written objections to the
report. Pl.’s Objections to Report (“Pl.’s Object.”) [Dkt. # 22]. After careful review of the

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

objections, and the Administrative Record, the Court will adopt the Magistrate Judge’s report in

its entirety. As a result, the Court will grant defendant’s cross-motion for summary judgment

and deny plaintiff’s motion for summary judgment. 1

                                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 further 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.

       A central requirement of the IDEA is that the district in which a student with disabilities

resides must offer that student a free appropriate public education (“FAPE”), id. § 1412(a),

which entitles each student with a disability to a comprehensive plan, known as an individualized

education program (“IEP”), that is designed to 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



1        Like the Magistrate Judge, the Court will adopt the hearing officer’s finding of
undisputed facts in disposing of this case. See Report at 7 n.2. The facts most relevant to the
disposition are that (1) J.W. is a resident of the District of Columbia; (2) J.W. is a child with
multiple disabilities; (3) J.W.’s parents took steps “to assist [DCPS] in an eligibility
determination and IEP process” for J.W.; (4) J.W. is parentally enrolled in a private school in the
District; (5) DCPS determined that J.W. is eligible for special education; (6) J.W.’s parent’s
requested that DCPS develop an IEP for J.W.; and (7) DCPS declined the IEP request, stating
that it is not obligated to provide J.W. with an IEP until he is enrolled in a DCPS school. Id.,
quoting Ex. 1 to AR 2–3 [Dkt. # 10-1].
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enable the child to achieve passing marks and advance from grade to grade.” Bd. of Educ. v.

Rowley, 458 U.S. 176, 204 (1982).

       When a student with disabilities is parentally placed in a private school, the LEA

responsible for the district in which the student resides must continue to periodically evaluate the

student’s special education needs, either on its own initiative or at the request of the student’s

parents or teacher. See 20 U.S.C. § 1412(a)(3)(A); District of Columbia v. Vinyard, -- F. Supp.

2d --, No. 12–1604, 2013 WL 5302674, at *3 (D.D.C. Sept. 22, 2013). As a result, the LEA has

a continuing responsibility to offer a FAPE to a student with disabilities that resides within its

district regardless of whether that student is currently enrolled in a private school. Upon receipt

of an offer of a FAPE, parents have two options: (1) accept the offer of a FAPE and enroll their

student in the delegated school, or (2) keep their child in private school. See Ex. 2 to Pl.’s

Object. at 6 [Dkt. # 22-2]. If the parents choose the latter option, any services provided to the

student pursuant to the IDEA are governed by 20 U.S.C. § 1412(a)(10) and 34 C.F.R.

§§ 300.130–300.144.     “No parentally-placed private school child with a disability has an

individual right to receive some or all of the special education and related services that the child

would receive if enrolled in a public school.” 34 C.F.R. § 300.137(a).

       The IDEA provides parents of students with disabilities the opportunity to participate in

the evaluation and placement process. 20 U.S.C. §§ 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), and any “party aggrieved by the findings



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and decision” of that officer may file a civil case in federal court challenging that decision. 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).

                                   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, 846 F. Supp. 2d 197, 198–200 (D.D.C. 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). The party

challenging the decision bears the burden of proof and “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).     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.

                                          DISCUSSION

       Plaintiff raises two objections to the Magistrate Judge’s Report and Recommendation,

which adopted the HOD determination that plaintiff must provide J.W. with an IEP in order to

comply with the IDEA. First, plaintiff argues that the Magistrate Judge did not conduct a proper



                                                  4
statutory analysis because there is a separate statutory framework governing students with

disabilities who are parentally placed in private schools that eliminates plaintiff’s responsibility

to develop an IEP for J.W. See generally Pl.’s Object. And second, plaintiff objects to the

Magistrate Judge’s conclusion that plaintiff’s Spending Clause argument is not germane and

therefore need not be addressed. See generally id. Neither objection has merit.

       The separate statutory framework for children who are parentally placed in private school

does not support plaintiff’s theory that it is not obligated under the IDEA to develop an IEP for

J.W. until he enrolls in a public school. See Vinyard, 2013 WL 5302674, at *6–10. The IDEA’s

basic rule is that the state must ensure that “[a] free appropriate public education is available to

all children with disability residing in the State between the ages of 3 and 21.” 20 U.S.C.

§ 1412(a)(1)(A) (emphasis added). To satisfy that obligation, the state must not only engage in

“child find,” 2 id. § 1412(a)(3), but it must also reevaluate and offer a FAPE to “each child with a

disability . . . if the [LEA] determines that the educational or related services needs . . . of the

child warrant a reevaluation[,] or if the child’s parents or teacher requests a reevaluation.” Id.

§ 1414(a)(2); see also Vinyard, 2013 WL 5302674, at *6–10. Absent a statutory exception, the

IDEA mandates that a LEA offer a FAPE to all students residing in its district.

       Here, J.W. is undisputedly a child with a disability who resides in the District of

Columbia, and he therefore falls within the IDEA’s basic rule provision. As a result, when his

parents requested that plaintiff reevaluate J.W. and develop on IEP for him, plaintiff was




2      The “child find” provision of the IDEA imposes an obligation on a LEA to locate and
evaluate all children with disabilities residing within its district. 20 U.S.C. § 1412(a)(3). This
provision is not at issue in this case.
                                                 5
required to honor that request and make available a FAPE to J.W. regardless of his current

parental enrollment in a private school. 3

       Plaintiff relies entirely on the separate statutory framework governing children who are

parentally placed in private schools to assert that it is nonetheless not obligated to develop an IEP

for J.W. But that separate statutory framework does not create an exception to the general rule

that the LEA offer a FAPE to all students with disabilities that reside in its district. See 20

U.S.C. § 1412(a)(1); Vinyard, 2013 WL 5302674, at *7 (“[S]ection 1412(a)(10) . . . does not

limit when the school district is required to propose a FAPE when requested by the parents.”).

Instead, as the plain language of section 1412(a)(10)(A)(i) indicates, that provision governs an

LEA’s responsibility to provide special education and related services to children with

disabilities that are “enrolled in private schools by their parents.” 20 U.S.C. § 1412(a)(10)(A)

(emphases added) (explaining that “provision is made for the participation of those children in

the program assisted or carried out under this subchapter by providing for such children special

education and related services” and that “[s]uch services . . . may be provided to the children on

the premises of private, including religious, schools, to the extent consistent with law”); Vinyard,

2013 WL 5302674, at *7 (“But section 1412(a)(10) merely governs the school district’s

obligations after the parents decline a FAPE offered by the school district . . . .”). Similarly, the

plain language of 34 C.F.R. § 300.137 demonstrates that it is meant to limit the services the LEA

must provide, not the obligation to evaluate or reevaluate and offer a FAPE to a student: “No

parentally-placed private school child with a disability has an individual right to receive some or

all of the special education and related services that the child would receive if enrolled in a

public school.” 34 C.F.R. § 300.137(a) (emphasis added); see also id. § 300.137(b)(1) (emphasis


3       The fact that J.W.’s parents requested that plaintiff develop an IEP for J.W. distinguishes
this case from D.P. v. Council Rock School District, 482 Fed. App’x 669 (3d Cir. 2012).
                                                 6
added) (“Decisions about the services that will be provided . . . .”). Consequently, the only two

provisions to which plaintiff directs this Court do not support plaintiff’s position that it is under

no obligation to offer a FAPE to J.W. simply because he is not currently (and never was)

enrolled in a DCPS school. In fact, plaintiff’s own Exhibit to its written objections supports the

opposite conclusion:

                Question B-8: What are the LEA’s responsibilities for reevaluations of
                parentally placed children?

                Answer: The LEA where the private elementary school or secondary
                school is located is responsible for conducting reevaluations of children
                with disabilities enrolled by their parents in the private elementary and
                secondary schools located in the LEA.

Ex. 2 to Pl.’s Object. at 7.

        The separate statutory framework also does not create an exception to the requirement

that plaintiff develop an IEP for J.W. As plaintiff itself notes, an IEP is defined as including “a

‘statement of the special education and related services’ to be provided to the child.” Pl.’s Mot.

at 8, quoting 20 U.S.C. § 1414(d). Put differently, an IEP is a written statement of the services

that will be provided to the child should his or her parent(s) accept the offer of a FAPE: at the

(re)evaluation stage, it puts a child’s parent(s) on notice of what the FAPE would entail.

Developing an IEP is therefore a necessary predicate to offering a FAPE, and it follows that the




                                                 7
obligation to offer a FAPE also includes an obligation to develop an IEP. 4 Cf. Forest Grove Sch.

Dist. v. T.A., 557 U.S. 230, 238–39 (2009) (“[W]hen a child requires special-education services,

a school district’s failure to propose an IEP of any kind is at least as serious a violation of its

responsibilities under IDEA as a failure to provide an adequate IEP.”); Vinyard, 2013 WL

5302674, at *7–9, citing I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762,

772 (M.D. Pa. 2012). So, as there is no requirement that a child be currently enrolled in a public

school to be entitled to a FAPE offer, similarly there is no requirement that the child be currently

enrolled in a public school in order to trigger the LEA’s obligation to develop an IEP for that

child. See Woods v. Northport Pub. Sch., 487 Fed. App’x 968, 979–80 (6th Cir. 2012), quoting

James ex rel. James v. Upper Arlington City Sch. Dist., 228 F.3d 764, 768 (6th Cir. 2000) (“To

hold otherwise would allow the school to slough off any response to its duty until the parents

either performed the futile act of enrolling their son for one day and then withdrawing him as

soon as the IEP was complete, or, worse, leaving the child in an arguably inadequate program for

a year just to re-establish his legal rights.”); District of Columbia v. Abramson, 493 F. Supp. 2d

80, 85 (D.D.C. 2007), quoting Hr’g Officer Decision at 8 (affirming the HOD, which found that

“[t]he LEA is still required to offer a FAPE to any resident when there is a parent request for the



4       The fact that the U.S. Department of Education has stated that a “public agency is not
required to develop an IEP when the parent refuses to consent to the initial provision of special
education and related services” does not alter the conclusion that plaintiff must develop an IEP
for J.W. Subpart D—Evaluations, Eligibility Determinations, Individual Education Programs,
and Educational Placements, USDOE, http://idea.ed.gov/explore/view/p/,root,regs,preamble2,
prepart2,D (last visited Jan. 15, 2014). The USDOE quote refers to situations where a parent
manifests his or her intent to deny consent for the actual provision of special education and
related services to the child; it does not relate to a situation – like the one in this case – where a
parent consents to the development of a FAPE offer and requests additional information
regarding what that offer will include while reserving the judgment on whether the FAPE offer
will ultimately be accepted. See Vinyard, 2013 WL 5302674, at *9 (explaining that “the relevant
inquiry is whether the parents expressed their intent to maintain the child’s private school
enrollment after the school district offers a FAPE”).
                                                  8
student to be evaluated” and that offering a FAPE includes, among other things, “determining

eligibility [for services, and] developing an IEP if the student is eligible”); see also Vinyard,

2013 WL 5302674, at *8–9 (collecting cases).

       This conclusion is consistent with the statutory framework that governs parentally placed

private school students. 5 As plaintiff’s written objections indicate, its arguments focus on the

“school system’s responsibility to provide ‘special education and related services,’ which

comprise both a FAPE and an IEP.”          Pl.’s Object. at 13 (emphasis added).      But merely

developing an IEP to inform a child’s parent(s) about the services that could be offered in an

effort to provide that student with a FAPE is not the same thing as requiring the LEA to actually

provide the services described in the IEP. As a result, the development of an IEP does not

implicate the limitations of section 1412(a)(10) or section 300.147(a), and there is no statutory

basis to require that the child enroll in a public school before the IEP is developed. 6 See

Vinyard, 2013 WL 5302674, at *7–8. Plaintiff therefore has not met its burden to establish that

the HOD was wrong and that, under the IDEA, it is not obligated to develop an IEP for J.W. 7



5       Because the separate statutory framework governing parentally placed private school
students is irrelevant to this case, it follows that the statutory provision governing children who
are placed in private schools by a LEA also has no bearing on the inquiry here. The Court
therefore rejects plaintiff’s argument that relies on the language in the provision dealing with
students who are placed in private school by a LEA. See Pl.’s Object. at 13 n.6.

6       Because this case does not involve a dispute over whether services must be provided
while J.W. remains enrolled in a private school and instead focuses on plaintiff’s ongoing
obligation to make a FAPE available to J.W., the cases relied on by plaintiff – Board of
Education v. Johnson, 543 F. Supp. 2d 351 (D. Del. 2008), and D.L. ex rel. K.L. v. Baltimore
Board of School Commissioners, 706 F.3d 256 (4th Cir. 2013) – offer no guidance here.

7       Plaintiff argues that 34 C.F.R. § 300.148, which governs tuition reimbursement after a
denial of a FAPE, supports its theory that it need not provide J.W. with an IEP until he enrolls in
a public school. Pl.’s Object. at 17–18. But this argument fails for the same reason as plaintiff’s
main point: it focuses on the District’s responsibility to provide a FAPE, instead of focusing on
what is actually at issue here – the District’s obligation to offer a FAPE.
                                                9
       Plaintiff’s Spending Clause argument does not warrant a contrary conclusion.                As

mentioned above, the IDEA creates a basic requirement that a LEA offer a FAPE to all children

with disabilities residing in the LEA’s district. There is no exception to this requirement simply

because a child is currently enrolled in a private school. Thus, plaintiff has not raised a valid

Spending Clause concern because Congress has unambiguously required plaintiff to offer a

FAPE – which includes the development of an IEP – to J.W. because his parents have requested

a reevaluation, he is a resident of the District of Columbia, and he is a student with a disability.

                                          CONCLUSION

       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. The Court will therefore

deny plaintiff’s motion for summary judgment and grant defendant’s cross-motion for summary

judgment. A separate order will issue.




                                               AMY BERMAN JACKSON
                                               United States District Judge

DATE: January 16, 2014




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