COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff Yvette Street filed suit as the parent and next friend of her son, S.S., seeking injunctive and declaratory relief against the District of Columbia under the Individuals with Disabilities Education Improvement
Plaintiff does not dispute that the Hearing Officer set out as part of her Determination all of the relevant evidence from the record presented to her. Plaintiff disputes some of the credibility findings and some of the conclusions reached by the Hearing Officer based on the factual record. Accordingly, the Court will cite to evidence, findings, and conclusions as they relate to the discussions of the issues raised in this case.
On December 21, 2012, Plaintiff filed an administrative due process complaint against the District. AR at 387-399. Plaintiff identified the following issues in her administrative complaint: (1) failure to provide S.S. a FAPE due to disability harassment and bullying by students and staff; (2) failure to adequately evaluate S.S. in all areas of suspected disability; (3) failure to provide S.S. special education and related services regarding discipline and corporal punishment; (4) failure to provide S.S. an assistive technology device
On January 23, 2013, a pre-hearing conference was held and a pre-hearing order was issued. Id. at 449. The Hearing Officer identified the following issues for adjudication: (1) "Whether [DCPS] denied [S.S.] a free, appropriate, public education ("FAPE") during the 2011-2012 school year when the classroom aide and other students repeatedly physically harmed him, which prevented him from accessing the curriculum and making progress on the goals in his individualized education program ("IEP");" (2) "Whether [DCPS] denied [S.S.] a FAPE during the 2011-2012 school year by failing to conduct assistive technology and developmental vision assessments of [S.S.];" (3) "Whether [DCPS] denied [S.S.] a FAPE during the 2012-2013 school year by failing to prevent other students from physically harming him, which prevented [S.S.] from accessing the curriculum and resulted in his developing school phobia;" (4) "Whether [DCPS] denied S.S. a FAPE from October 25, 2012, through the present by failing to provide him home-based instruction while he was unable to attend school due to the injuries he suffered after another student injured him in the school cafeteria and due to his school phobia;" (5) "Whether [DCPS] denied [S.S.] a FAPE during the 2011-2012 and 2012-2013 school years by failing to provide him assistive technology, i.e., a laptop computer or iPad and related software to assist him with communication;" and (6) "Whether [DCPS] denied [S.S.] a FAPE during the 2011-2012 and 2012-2013 school years by failing to provide him a sufficiently restrictive placement, i.e., place him in a separate, special education day school for students with severe autism." Id. at 451-452. Plaintiff did not object to the issues the Hearing Officer determined for adjudication in the pre-hearing order, either within the three-day window to object following the issuance of the pre-hearing order or when the Hearing Officer read the issues certified for hearing at the beginning of the due process hearing. Id. at 38 n. 380.
The due process hearing was held on February 27, 28, and March 4, 2013. Id. at 887; 1160; 1409. During the hearing, Plaintiff withdrew her claim that DCPS denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years by failing to provide him assistive technology (Issue #5) and her claim that DCPS denied S.S. a FAPE during the 2011-2012 school year by failing to conduct an assistive technology assessment of S.S. (Issue #2). Id. at 898-900. Plaintiff also withdrew her proposed compensatory education plan as a remedy for failing to provide home instruction (Issue #4) and confirmed that it should be withdrawn with prejudice. Id. at 1450-51.
Plaintiff; Dr. Alsan Bellard, S.S.'s pediatrician; Janeen Curry, a bus attendant on the bus S.S. took to school; Nicole Zeitlin, an expert in clinical psychology; and Kristin Conaboy, an occupational therapist who evaluated S.S., testified for Plaintiff. DCPS Autism Coordinator Emily Pearson testified on behalf of DCPS. The Hearing Officer issued a Determination on March 16, 2013. Id. at 3-39. The Hearing Officer concluded that Plaintiff proved that DCPS denied S.S. a FAPE during the 2011-2012 school year by failing to conduct a developmental vision assessment and ordered related relief. Id. at 33-34. The Hearing Officer also concluded that Plaintiff proved that DCPS denied S.S. a FAPE from October 25, 2012, through the present by failing to provide home-based instruction. Id. at 34-35. However, the Hearing Officer did not provide a remedy for this denial of a FAPE because during
The Hearing Officer ruled against Plaintiff on the remaining issues. Specifically, the Hearing Officer concluded that Plaintiff failed to prove that DCPS denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years by failing to stop other students and the Classroom Aide from bullying S.S., which prevented him from accessing the curriculum, resulting in S.S. developing school phobia. Id. at 29-32. The Hearing Officer also concluded that Plaintiff failed to prove that DCPS denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years by failing to provide him a sufficiently restrictive placement, that is, a separate special education day school for students with autism. Id. at 35-38.
Plaintiff filed suit on April 24, 2013, asserting that DCPS denied S.S. a free appropriate public education. Plaintiff filed an Amended Complaint on August 26, 2013, appealing the March 16, 2013, Hearing Officer Determination and alleging violations of Section 504 of the Rehabilitation Act. See ECF No. [23]. Specifically, Plaintiff alleges that Defendant violated the IDEA by failing to provide S.S. a FAPE due to disability harassment (Count I), failing to implement the IEP (Count II), failing to protect S.S. from bullying (Count III), and by failing to provide home instruction (Count IV). Plaintiff further alleges that Defendant violated Section 504 by denying S.S. a FAPE due to disability harassment and the creation of a hostile environment (Count V), through other acts (Count VI), and by retaliating against Plaintiff for legally protected activities (Count VII). Finally, Plaintiff alleges that the Hearing Officer failed to render a fair and proper decision (Count VIII).
On January 20, 2014, Plaintiff filed her Amended Motion for Summary Judgment.
Plaintiff also filed a Motion for Leave to File Additional Evidence. Plaintiff seeks to supplement the Administrative Record with four pieces of evidence: (1) evidence that DCPS' witness at the due process hearing lied under oath about her credentials; (2) newly discovered evidence that DCPS failed to provide S.S. adapted physical
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and [that he] ... is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact. Id. Accordingly, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record — including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence — in support of his position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C.Cir.2009). Moreover, where "a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the district court may "consider the fact undisputed for purposes of the motion." Fed. R.Civ.P. 56(e).
When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district court's task is to determine "whether the evidence presents a sufficient disagreement to require submission to [the trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In this regard, the non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); "[i]f the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
Under the IDEA, a "party aggrieved by the findings and decision" of
The reasons for a court to hear additional evidence at the request of a party "might include gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing." Town of Burlington v. Dep't of Ed., 736 F.2d 773, 790 (1st Cir.1984). The trial court has the discretion to determine what constitutes "additional" evidence under the IDEA and "must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo." Id. at 791; see also Springer v. Fairfax Cnty. Sch. Bd., 134 F.3d 659, 667 (4th Cir.1998) ("A lax interpretation of `additional evidence' would `reduce the proceedings before the state agency to a mere dress rehearsal by allowing appellants to transform the Act's judicial review mechanism into an unrestricted trial de novo'" (internal citation omitted)). Furthermore, additional evidence should not be introduced in the trial court "to patch up holes in [a party's] administrative case," Springer, 134 F.3d at 667, since that would result in administrative proceedings "no longer receiv[ing] the weight that they are due," Schaffer v. Weast, 554 F.3d 470, 476 (4th Cir.2009). Finally, additional evidence should be relevant to the challenged decisions of the hearing officer. S.M. v. Bd. of Ed. of Albuquerque Pub. Sch., 565 F.3d 1232, 1241 (10th Cir. 2009).
The party challenging the Hearing Officer Determination bears the burden of proof and must "at least take on the burden of persuading the court that the hearing officer was wrong." 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)). The preponderance-of-the-evidence standard in this context does not grant the reviewing court unfettered de novo review. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ("Thus the provision that a reviewing court base its decision on the `preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review."). Rather, courts must give "due weight" to the administrative proceedings. Id. "[F]actual findings from the administrative proceeding are to be considered prima facie correct." Roark v. District of Columbia, 460 F.Supp.2d 32, 38 (D.D.C.2006) (quoting S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 270 (3d Cir.2003)). Because the IDEA permits a reviewing court to entertain additional evidence at the request of a party, courts employ "`less deference than is conventional' in administrative proceedings." Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887). Nevertheless, the Court should "defer to the [hearing officer's] factual
Plaintiff moves the Court to permit her to supplement the Administrative Record with four categories of evidence: (1) evidence that a DCPS witness at the due process hearing lied under oath about her credentials and that DCPS' attorney allegedly knew about it and suborned perjury; (2) Plaintiff's affidavit averring that a DCPS teacher admitted to Plaintiff that DCPS failed to place S.S. in an adapted physical education class during the 2011-2012 school year in violation of S.S.'s IEP; (3) evidence that DCPS retaliated against Plaintiff for her protected activities advocating for S.S.'s educational needs; and (4) the developmental optometry evaluation ordered by the Hearing Officer and the documents relevant to the June 11, 2013, IEP meeting at which DCPS allegedly refused to change S.S.'s IEP in response to the evaluation. The Court will consider the propriety of admitting each category of evidence in turn.
Plaintiff first moves the Court to supplement the Administrative Record with evidence that Defendant's only witness, Emily Pearson, DCPS' Autism Coordinator, lied under oath about her credentials during the due process hearing, as well as evidence that Plaintiff contends shows that DCPS suborned perjury. Defendant concedes that Ms. Pearson misrepresented her credentials during the due process hearing, but argues that this evidence should not be added to the Administrative Record because Ms. Pearson's testimony "had no bearing on the outcome of the hearing." Def.'s Opp'n. to Mot. for Addt'l Ev. at 4. Defendant also argues that none of Plaintiff's accusations that the District suborned perjury have any basis in fact. Id. at 10.
The Hearing Officer recited Ms. Pearson's testimony as it related to the merits of Applied Behavior Analysis ("ABA") therapy for autistic children and to the fact that MacFarland does not employ ABA therapists. AR at 15-16, ¶¶ 33, 35. The Court agrees with Defendant that the Hearing Officer did not rely on Ms. Pearson's testimony in its findings and conclusions of law. The Hearing Officer relied on regulations in describing the role of ABA therapy in an IEP and reached the legal conclusion that, since Plaintiff did not challenge the IEP by requesting that ABA therapy be included, Plaintiff cannot argue that ABA therapy should have been provided, necessitating S.S.'s placement in the special education day school that could provide that therapy. See id. at 38. Accordingly, Ms. Pearson's testimony was irrelevant to the claim of bullying and the claim that a change of school placement was required. In addition, there is no evidence to support a conclusion that the DCPS attorney suborned perjury other than Plaintiff's pure speculation.
The Court also finds that this evidence is not relevant to Plaintiff's allegation that DCPS denied S.S. home instruction and an optometry evaluation in bad faith or gross misjudgment — the only denials of a FAPE that the Court finds actionable under Section 504 for the reasons described in Part B(d)(iii). Ms. Pearson testified extensively about ABA therapy and the therapies available at MacFarland, not about the need for DCPS to provide home instruction
Plaintiff next seeks to supplement the Administrative Record with her own affidavit averring that a DCPS teacher admitted that DCPS failed to place S.S. in adapted physical education during the 2011-2012 school year in violation of S.S.'s IEP. Plaintiff offers this evidence as evidence of DCPS' bad faith and gross misjudgment in support of her Section 504 Rehabilitation Act claims. The Court will not permit Plaintiff to supplement the Administrative Record with this evidence because it is not related to the issues that were presented to the Hearing Officer that Plaintiff is now challenging. Plaintiff did not challenge S.S.'s IEP or the failure to implement the IEP. The Court further fails to see how this alleged admission about one violation of S.S.'s IEP constitutes, without more, evidence of DCPS' bad faith or gross misjudgment as to the unrelated denial of home instruction and an optometry evaluation — the only denials of a FAPE that the Court finds actionable under Section 504 for the reasons described in Part B(d)(iii). Accordingly, the Court denies Plaintiff's request to supplement the Administrative Record with this evidence.
Plaintiff also seeks to supplement the Administrative Record with evidence that Defendant retaliated against Plaintiff for her efforts to advocate for educational services for S.S. by reporting Plaintiff to the Child and Family Services Agency ("CFSA") and to the Superior Court for criminal truancy. The Court will not permit Plaintiff to supplement the Administrative Record with this evidence because, as discussed in Part B(d)(i), Plaintiff's retaliation allegations have not been exhausted through the IDEA administrative process and thus are not properly before this Court. As Plaintiff's retaliation claim was not exhausted before the Hearing Officer in the administrative due process hearing, by definition, evidence of DCPS' allegedly retaliatory activities cannot be relevant to the challenged decisions of the Hearing Officer.
Finally, Plaintiff seeks to supplement the Administrative Record with the developmental optometry evaluation ordered by the Hearing Officer as well as documents relevant to the June 11, 2013, IEP meeting at which DCPS allegedly refused to change S.S.'s IEP in response to the optometry evaluation. Plaintiff seeks "to admit this evidence to further elucidate the Court on Defendant's past and continuing denials of FAPE, as well as their discrimination against S.S. solely on the basis of disability by refusing to provide him aids, benefits, and services that are as effective as those for non-disabled students." Pl.'s Mot. for Addt'l Ev. at 19. Plaintiff also presents this evidence as evidence of Defendant's bad faith or gross misjudgment. The Court will not permit Plaintiff to supplement the Administrative Record with this evidence because it is not relevant to the Hearing Officer's determinations that Plaintiff is now challenging. First, this evidence should not be admitted to elucidate Defendant's past denial of a
Plaintiff is correct that evidence of events occurring after the due process hearing can be added to the Administrative Record when it bears on the suitability of an earlier IEP that was challenged during the due process hearing. See Shaffer v. Weast, 554 F.3d 470, 478 (4th Cir.2009) ("We have held that where an IEP is accepted, evidence of educational progress under that IEP is useful in deciding whether the IEP was appropriate."). However, Plaintiff did not challenge S.S.'s IEP before the Hearing Officer. As the evidence Plaintiff seeks to introduce only goes to the adequacy of S.S.'s IEP which was not an issue before the Hearing Officer and is not an issue now before this Court, the Court shall deny Plaintiff's request to supplement the Administrative Record with this evidence. Plaintiff also cannot present this evidence as evidence of DCPS' bad faith or gross misjudgment to support her Section 504 claims because it does not show bad faith in DCPS' denial of home instruction or an optometry evaluation, especially as Plaintiff has not indicated that the results of the optometry evaluation necessitated a change in S.S.'s IEP.
In her administrative due process complaint and before the Hearing Officer, Plaintiff alleged that S.S. was subjected to disability harassment and bullying while at MacFarland Middle School and that this bullying led S.S. to develop a psychological condition called "school avoidance" which in turn led him to miss school and be denied a FAPE. AR at 396, ¶ 64. Plaintiff argues that the Hearing Officer erred in holding that Plaintiff failed to prove a denial of a FAPE due to disability harassment and bullying because the Hearing Officer Determination was not "regularly made" and because the Hearing Officer improperly discredited testimony that S.S. was bullied and that this bullying led S.S. to develop school avoidance. Pl.'s Mot. at 10. The Court shall address each argument in turn.
Plaintiff argues that the Hearing Officer's failure to find for Plaintiff on Plaintiff's claim of disability harassment and bullying was in error because the Hearing Officer's findings were not "regularly made." Pl.'s Mot. at 39. Specifically, Plaintiff notes that in a pre-hearing order, the Hearing Officer certified for hearing the issue of whether Defendant denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years when the Classroom Aide and other students "repeatedly physically harmed him." See AR at 451. The Hearing Officer confirmed the certification of the issue of "repeated physical harm" at the beginning of the due process hearing. Id. at 894. However, in the Hearing Officer Determination, the Hearing Officer stated the issue as whether the Classroom Aide and other students
The Court finds that the Hearing Officer's focus on bullying in her Determination, instead of repeated physical harm, did not deny Plaintiff a fair and proper hearing or decision. First, in her administrative due process complaint, Plaintiff herself framed the issue as whether S.S. was denied a FAPE "due to disability harassment and bullying." AR at 397. To support her allegation of disability harassment and bullying in the administrative complaint, Plaintiff presented facts about a series of physical injuries that S.S. received while at MacFarland. These were the same facts about which Plaintiff extensively testified during the due process hearing. Moreover, Plaintiff acknowledges in her Opposition that her expert witnesses testified about the bullying to which S.S. was subjected at MacFarland. Pl.'s Mot. at 13. In her Determination, the Hearing Officer clearly considered all of the physical injuries Plaintiff alleged in her administrative complaint and again at the hearing as evidence of bullying. Although Plaintiff appears to be arguing that she was prejudiced by the shift in focus from physical harm to bullying, Plaintiff herself contends in her Motion that the preponderance of the evidence nevertheless showed S.S. was bullied in school. Id. at 23. Accordingly, the Court is not inclined to find that Plaintiff was prejudiced in her presentation of evidence at the due process hearing.
In any event, the focus of the Hearing Officer Determination was ultimately less on whether there was bullying and more on whether that bullying or physical harm caused the denial of a FAPE. Thus, even if, as Plaintiff argues, the Hearing Officer was wrong to have considered whether certain instances of physical harm were accidental, the Hearing Officer's Determination was ultimately based on her finding that Plaintiff had failed to present sufficient evidence that the physical harms S.S. suffered — accidental or not — were the cause of his school avoidance and his lengthy absences from MacFarland. See AR at 32. Accordingly, the Court rejects Plaintiff's argument that the Hearing Officer's conclusion that Plaintiff failed to show that S.S. was denied a FAPE due to bullying was procedurally irregular.
The Court also rejects Plaintiff's argument that the Hearing Officer erred in finding that Plaintiff failed to prove S.S. was denied a FAPE due to disability harassment and bullying. This jurisdiction has not addressed the issue of whether bullying may be a basis for finding a violation of the IDEA and a denial of a FAPE. Four other circuits have addressed this issue,
During the due process hearing, Plaintiff testified about physical injuries that S.S. received while at MacFarland Middle School. Plaintiff also presented two experts who testified about S.S.'s autism spectrum disorder and the "school avoidance" anxiety disorder S.S. allegedly developed while at MacFarland. In her Determination, the Hearing Officer considered in detail all of the incidents of physical harm about which Plaintiff and her experts testified. Plaintiff does not now contend that the Hearing Officer failed to consider certain evidence. Instead, Plaintiff primarily takes issue with the Hearing Officer's credibility determinations, specifically as they affect the Hearing Officer's conclusions about whether the physical harms S.S. suffered were the result of bullying and whether they caused S.S. to develop school avoidance and miss school.
In her Determination, the Hearing Officer found that between August 25, 2011, and the end of September 2012, S.S. often returned home with scratches and bruises and was involved in about ten incidents at school in which he sustained injuries, including a bruised wrist, a sprain in his arm and neck, and head injuries. AR at 19, ¶ 48; 30; 32. While the Hearing Officer found that Plaintiff and her experts testified credibly about these injuries, the Hearing Officer ultimately concluded that Plaintiff had failed to prove "the scratches weren't a result of his tantrums, clumsiness, or horseplay," or that the injuries were not accidental or caused by S.S.'s own aggressiveness. Id. at 32.
The Hearing Officer next found that by October 19, 2011, S.S. had missed fifteen days of school and had "become reluctant to attend school because he feared the Classroom Aide." Id. at 30. Again, although the Hearing Officer credited Plaintiff's testimony that the child feared the Classroom Aide, the Hearing Officer did not credit Plaintiff's testimony that the Classroom Aide had bullied S.S. or in any other way caused physical harm to S.S. Id. at 26, ¶ 92; 32. The Hearing Officer noted that the only evidence that the Classroom Aide had physically harmed S.S. came from Plaintiff's testimony that S.S. had specifically told Plaintiff that the Classroom Aide had injured him and explained the manner in which he was injured. Id. at 26, ¶ 92. The Hearing Officer discredited Plaintiff's testimony because the testimony of Plaintiff's experts was that S.S. was "essentially non-verbal [which] undermines [Plaintiff's] assertion that [S.S.] described the incidents to her." Id.
The Hearing Officer next found that in December 2011, S.S. was hit in the head several times by weighted basketballs during his physical education class. Id. at 30. S.S. was injured in at least three incidents, including one in which he was knocked to the floor. Id. "Within weeks," S.S. was hospitalized with Bell's Palsy. Id. The Hearing Officer found that these incidents "may have been accidental" given the fact that the testimony established that S.S. "is often unaware of the location of his body in the space around him" and "trips and falls frequently." Id. at 32.
Following the winter break, MacFarland gradually transitioned S.S. into another special education classroom taught by a different teacher. Id. at 31. Higher functioning children were taught in this classroom
In March 2012, S.S. was hospitalized because he was experiencing extreme pain in his eyes and ears. Id. S.S.'s doctors informed Plaintiff that S.S. would not be able to return to school during the remainder of the school year. Id. By June 12, 2012, the last day of the 2011-2012 school year, S.S. had been absent from school for 103 days. Id. The Hearing Officer concluded that Plaintiff failed to show that "S.S. failed to make academic progress during the 2011-2012 school year because he was bullied by other students and the Classroom Aide" and found instead that S.S.'s "failure to make progress was due to his missing 103 school days that year." Id. at 32.
As for the 2012-2013 school year, which S.S. again spent at MacFarland, the Hearing Officer found that on September 10, 2012, S.S. arrived at school already upset and crying and complaining of chest pain. Id. at 31. That same day, S.S. punched another student in the eye. Id. On September 11, 2012, one of S.S.'s classmates became aggressive towards a teacher. Id. The classmate then rushed toward S.S. and pushed him in the back and onto the concrete floor causing S.S. to dislocate his finger and lose a tooth. Id. S.S. was not the target of the student who pushed him to the floor in the altercation with a teacher. On September 30, 2012, Plaintiff informed the Special Education Coordinator ("SEC") that S.S. "had informed his doctors that he was afraid of getting hurt if he returned to the Middle School." Id. Plaintiff also informed the SEC that she did not want S.S. to return to the Middle School. Id. S.S. had not returned to school as of the time the Hearing Officer Determination was issued. Id. at 24, ¶ 80. The Hearing Officer concluded that Plaintiff "failed to show that [S.S.] developed school avoidance during the 2012-2013 school year because the Classroom Aide and other students had bullied him at the Middle School" and "failed to prove that [S.S.'s] refusal to attend school was not due to his disability, including his unreasonable fears, or his Bell's Palsy." Id. at 32.
After a thorough review of the Administrative Record, the Court finds no reason to question the Hearing Officer's determination regarding the effects of the repeated physical harms S.S. suffered on his access to a FAPE. First, the Hearing Officer did not credit Plaintiff's experts' testimony "that the Student has developed either school phobia or school avoidance." Id. at 26-27, ¶¶ 93, 94. The Hearing Officer discredited this testimony because the experts "failed to explain the medical basis for [their] opinion" and "admitted that [they] based [their] opinion[s] on [Plaintiff's] impressions of the Student's behavior." Id. at 26-27, ¶¶ 93, 94. The Hearing Officer also discredited the experts' opinions because they "failed to address the sudden disappearance of the Student's school avoidance when [the Student] was placed in the classroom of Teacher II at the Middle School" in the last half of the 2011-2012 school year. Id. at 27, ¶¶ 93, 94. Although Plaintiff broadly argues that the Hearing Officer's credibility determinations were "not regularly made and not supported by the preponderance of the evidence," the Court finds no reason in the Administrative Record to question the Hearing Officer's credibility determinations
Second, the Hearing Officer's conclusion that S.S.'s failure to make progress during the 2011-2012 and 2012-2013 school years was due to his frequent absences and not bullying or school avoidance is supported by the Administrative Record. During the 2011-2012 school year, S.S. missed 103 days of school. Id. at 307-308; 356. The substantial majority of these absences were due to S.S.'s hospitalization for pain in his eyes and ears from March to June 2012 several months after S.S. changed classrooms and stopped being reluctant to attend school. Id. at 998-99. In her Motion for Summary Judgment, Plaintiff contends that S.S.'s absences during the 2011-2012 school year were due to his Bell's Palsy which was caused by the weighted ball with which S.S. was accidentally hit in the head in December 2011 and which Plaintiff alleges was an incident of bullying. Pl.'s Mot. at 7, 33. However, there was no evidence in the Administrative Record that S.S.'s Bell's Palsy was caused by the weighted ball hitting his head. The only evidence presented was that the doctors did not know what caused S.S.'s Bell's Palsy. AR at 975-76, 1127. Accordingly, the Court finds that S.S.'s failure to make academic progress in 2011-2012 was due to his substantial absences for his medical conditions, not due to bullying or any alleged reluctance to attend school.
As for the 2012-2013 school year, S.S. returned to MacFarland Middle School after having finished the second half of the prior school year without any bullying incidents or reluctance to attend school before
In sum, the Court finds, as did the Hearing Officer, that Plaintiff failed to present sufficient evidence that S.S. was denied a FAPE due to bullying or disability harassment. Accordingly, the Court enters summary judgment in Defendant's favor as to Counts I and III of Plaintiff's Amended Complaint.
Plaintiff next challenges the Hearing Officer's determination that Plaintiff failed to prove that MacFarland was an inappropriate placement for S.S. During the due process hearing, the Hearing Officer considered whether Defendant denied S.S. a FAPE during the 2011-2012 and 2012-2013 school years "by failing to provide him a sufficiently restrictive placement, i.e. place him in a separate, special education day school for students with severe autism." Id. at 452; 895. The Hearing Officer explained that "[t]o prevail, [Plaintiff] was required to prove that the Middle School was not an appropriate placement. She had to prove that ... in order to access the curriculum, the Student had to be educated in a more restrictive environment." Id. at 38. The Hearing Officer concluded that Plaintiff had failed to meet her burden because her case "focused solely on proving that the Nonpublic School can meet the Student's needs, particularly for ABA therapy, the low lighting, and the sensory diet." Id. Since "ABA therapy is an instructional methodology, which is generally addressed in a student's IEP," and Plaintiff failed to challenge S.S.'s IEP, the Hearing Officer concluded that "[Plaintiff] failed to prove that Respondent denied the Student a FAPE." Id.
Plaintiff now argues that the Hearing Officer erroneously concluded that Plaintiff failed to prove that MacFarland was an inappropriate placement for S.S. Plaintiff contends that the Hearing Officer should have found that MacFarland was an inappropriate placement because it could not materially implement S.S.'s IEP. Specifically, Plaintiff maintains that MacFarland could not implement S.S.'s IEP because (1) pervasive disability harassment at the school caused S.S. to miss school, and (2) MacFarland lacked the resources, particularly certified ABA therapists, to provide the ABA therapy that S.S. required in order to "implement the IEP as it was currently written," Pl.'s Mot. at 17. As to the latter argument, Plaintiff argues that the Hearing Officer erred in finding that the only way to address a failure by the Middle School to provide ABA therapy to S.S. was to challenge the contents of the Student's IEP. Id. at 18.
In response, Defendant argues that the Court should not even consider Plaintiff's claim that "DCPS denied S.S. a FAPE by failing to implement his IEP" because Plaintiff failed to first raise this issue during the administrative proceedings. Def.'s Cross-Mot. at 23. Defendant further argues that, in any event, "the record is clear that DCPS was unable to implement S.S.'s
The Court declines Defendant's request to dismiss Plaintiff's claim at the outset and chooses instead to liberally read Plaintiff's "failure to implement" claim as effectively alleging that MacFarland was not an appropriate placement for S.S. As Plaintiff alleged that MacFarland was an inappropriate placement for S.S. in her administrative due process complaint and presented evidence on this issue at the due process hearing, the Court finds that this claim is properly before the Court — even if the title of Count II suggests otherwise.
Nevertheless, the Court is not persuaded that the Hearing Officer was wrong to the extent that she found that Plaintiff failed to prove that MacFarland was an inappropriate placement because MacFarland could not provide ABA therapy. A student's IEP determines whether an educational placement is appropriate; the placement does not dictate the IEP. See Roark v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C.2006); Spielberg v. Henrico Cty. Public Sch., 853 F.2d 256, 258 (4th Cir.1988) ("Educational placement is based on the IEP, which is revised annually."); 34 C.F.R. § 300.116(b)(2). Here, it is undisputed that S.S.'s IEP did not call for ABA therapy as an instructional methodology. See AR at 178-95; 275-89; 309-26. Nor does Plaintiff dispute the Hearing Officer's finding that "ABA therapy is an instructional methodology, which is generally addressed in a student's IEP." Id. at 38 (citing 34 C.F.R. § 300(a)(1)). As Plaintiff did not challenge S.S.'s IEP and its omission of ABA therapy services in her administrative due process complaint she cannot now argue that MacFarland is an inappropriate placement because it does not have the ABA therapy resources to materially implement S.S.'s IEP.
The Court also grants summary judgment in Defendant's favor on Count II to the extent that Plaintiff argues that MacFarland Middle School was an inappropriate placement because the school could not implement S.S.'s IEP due to pervasive disability harassment. The Court has already found in Part B(a)(ii) that there is not sufficient evidence in the Administrative Record to show that S.S. failed to make progress at MacFarland due to school avoidance triggered by bullying. Accordingly, the Court also finds that the Administrative Record does not show that MacFarland was unable to implement S.S.'s IEP due to disability harassment and bullying.
Plaintiff's Amended Complaint before this Court also includes a count alleging that Defendant violated the IDEA because "DCPS' ongoing failure to provide home instruction has continued before and since the issuance of the [Hearing Officer Determination], but for three (3) hours of instruction (with no related services) provided in June 2013." Am. Compl. ¶ 68. To the extent that this count alleges a violation of the IDEA due to a failure to provide home instruction prior to the issuance of the Hearing Officer Determination, the Hearing Officer clearly ruled in Plaintiff's favor on this issue. See AR at 34-35 (holding that "petitioner proved that respondent denied the student a FAPE from October 25, 2012, through the present by failing to provide home-based instruction."). During the administrative due process hearing, Plaintiff voluntarily withdrew with prejudice her claim to compensatory education as relief for DCPS' failure to provide home instruction. AR at 1450-51. As a result, there was no relief for the Hearing Officer to order other than judgment in Plaintiff's favor on liability. Accordingly, it is not clear to the Court why Plaintiff is bringing a claim for failure to provide home instruction before the issuance of the Hearing Officer Determination as this issue was already adjudicated in Plaintiff's favor during the administrative due process hearing.
To the extent that this count alleges a violation of the IDEA due to a failure to provide home instruction since the issuance of the Determination, this count presents a new claim which Plaintiff has failed to exhaust through the IDEA administrative complaint process. The issue certified by the Hearing Officer was whether Defendant denied the student a FAPE "from October 25, 2012, through the present" by failing to provide him home-based instruction. AR at 451, 895. Any claim that DCPS has failed to provide S.S. home instruction in the period since the Determination was issued presents an entirely new issue which must first be raised in an IDEA administrative complaint. See M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d 1153, 1159 (11th Cir.2006) (explaining that "[s]ection 1415(i)(2)(A) of the IDEA, which allows parties to file an action challenging an ALJ's final decision, provides `any party aggrieved by the findings and decision under this subsection shall have the right to bring a civil action with respect to the complaint presented pursuant to this section' ... [thus] to pursue claims [not raised in the due process hearing being challenged in district court], the plain language of the IDEA required Appellants to file a separate administrative complaint to raise that issue and exhaust all administrative remedies regarding that complaint before filing a judicial action." (emphasis in original)). The Court notes that the need to exhaust this claim is particularly clear in light of the fact that Plaintiff does not cite to any evidence supporting her allegation that DCPS has continued to fail to provide home instruction. See Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st Cir.1989) (explaining that the purpose of exhaustion is to "enable[] the agency to develop a factual record, to apply its expertise to the problem, to exercise its discretion, and to correct its own mistakes, and is credited with promoting accuracy, efficiency, agency autonomy, and judicial economy."). Accordingly, the Court enters summary judgment in Defendant's favor as to Count IV of Plaintiff's Amended Complaint.
Finally, Plaintiff brings before this Court several claims under Section 504 of the Rehabilitation Act of 1973. Specifically, Plaintiff alleges that DCPS retaliated against her for her protected activity advocating
Defendant moves the Court to enter summary judgment in Defendant's favor on Plaintiff's Section 504 retaliation claim because Plaintiff failed to exhaust her administrative remedies as to this claim. Judicial review is generally unavailable under the IDEA unless all administrative procedures have been exhausted. Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (discussing the Education of Handicapped Act, the immediate predecessor to the IDEA); cf. Cox v. Jenkins, 878 F.2d 414, 419-21 (D.C.Cir.1989) (dismissing action under the Education of Handicapped Act for failure to pursue all administrative avenues of redress). Accordingly, "[a] court has no subject matter jurisdiction over an IDEA claim that has not first been pursued through administrative channels." Massey v. District of Columbia, 400 F.Supp.2d 66, 70 (D.D.C.2005). Although exhaustion of administrative remedies under the IDEA is not required "where exhaustion would be futile or inadequate," Plaintiff bears the burden of demonstrating the futility or inadequacy of the administrative process. Honig, 484 U.S. at 326-27, 108 S.Ct. 592; see also Cox, 878 F.2d at 419 (dismissing complaint where parents had not made any showing on the record that they were not required to exhaust their administrative remedies because exhaustion would have been futile). "The controlling point of law here is that, absent a showing that exhaustion would be futile or inadequate, a party must pursue all administrative avenues of redress under the [IDEA] before seeking judicial review under the Act." Cox, 878 F.2d at 419.
Significantly, the IDEA's exhaustion requirement applies not only to claims brought directly under the IDEA itself, but to any claims for relief available under the IDEA, regardless of the statutory basis for such claims. The IDEA explicitly provides:
20 U.S.C. § 1415(l). That is, although the IDEA does not "restrict or limit the rights, procedures, and remedies available" under other applicable federal laws, a plaintiff must nonetheless exhaust the administrative procedures set forth under the IDEA when "seeking relief that is also available under" the IDEA, regardless of the statutory basis for such claims. Id.; see also Polera v. Bd. of Ed. of Newburgh Enlarged City School Dist., 288 F.3d 478, 487-88 (2d Cir.2002).
Plaintiff does not dispute that she was required to exhaust her retaliation claim per the IDEA. Instead, Plaintiff argues that she "exhausted the retaliation issue to the extent possible" by filing on March 20, 2013, a Section 504 claim discussing the retaliation, but "[d]efendants made exhaustion of the retaliation claims futile by failing
The Court finds that Plaintiff neither made an effort to exhaust her Section 504 retaliation claim per the IDEA nor demonstrated that exhaustion would have been futile. First, Plaintiff did not exhaust her retaliation claim as required by the IDEA because she did not allege any facts concerning retaliation by DCPS in her IDEA administrative complaint presently at issue
Plaintiff's argument that "it was futile for [her] to include a separate 504 count in her Complaint because the Student Hearing Office has no jurisdiction over 504 claims and the Hearing Officer would have dismissed them" misunderstands the scope and purpose of IDEA exhaustion. Even if, as DCPS asserts in the cited email exchange, an IDEA hearing officer does not have jurisdiction over an actual Section 504 complaint, the allegations related to a Section 504 claim still need to be raised before the IDEA hearing officer to the extent that they "relate unmistakably to the evaluation and educational placement of [the student],"
Likewise, although retaliation claims are not cognizable under the IDEA, courts have regularly required plaintiffs to exhaust their retaliation claims through the IDEA administrative process to the extent that they are related to the student's evaluation and education. In DeKalb, an Eleventh Circuit decision on which Plaintiff relies, the court of appeals held that plaintiff's parents needed to exhaust through the IDEA administrative process their Section 504 allegations that the school district "harassed them at IEP meetings, wrote them intimidating letters in response to their educational demands, and subjected [their child] to needless and intrusive testing" in retaliation for the parents "advocat[ing] for their son's legal rights to receive an appropriate education and be free from discrimination based solely upon his disabilities." 446 F.3d at 1158. The court of appeals found that the retaliation claims clearly related to the student's evaluation and education and thus were subject to exhaustion. Id. at 1158-59; see also Rose, 214 F.3d at 210 (holding that all the plaintiff's claims, including that the school "retaliated against [the student] in response to the [parents'] efforts to enforce his educational rights," were subject to the IDEA's exhaustion requirement because they "relate unmistakably to the evaluation and educational placement of [the student]."); Weber, 212 F.3d at 51-52 (holding that plaintiff "had to invoke the due process hearing procedures of IDEA before filing her retaliation claim in federal court pursuant to Section 504"). Similarly, here, DCPS indicated that an IDEA hearing officer would not hear a Section 504 complaint, however, DCPS' policy did not prevent — and indeed case law requires — Plaintiff to raise the allegations related to her Section 504 retaliation claim in an IDEA complaint submitted to an IDEA hearing officer because they clearly relate to S.S.'s educational placement and could potentially be redressed by IDEA remedies. As Plaintiff did not raise her Section 504 retaliation allegations in any IDEA complaint and failed to show that exhaustion was futile, the Court enters summary judgment in Defendant's favor as to Count VII of Plaintiff's Amended Complaint.
Plaintiff next alleges that Defendant violated Section 504 of the Rehabilitation Act by creating a hostile environment due to bullying and disability harassment. Am. Compl. ¶ 70. Section 504 provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794; see also Robinson v. District of Columbia, 535 F.Supp.2d 38, 41 (D.D.C.2008) ("Section 504 prohibits programs and entities that
Plaintiff's Section 504 disability harassment claim largely mirrors her IDEA disability harassment/bullying claim, except that Plaintiff also includes within the claim allegations of harassment that cover S.S.'s time at Garrison Elementary School. As the events occurring during S.S.'s time at Garrison were not at issue before the Hearing Officer, they have not been exhausted and thus are not properly before this Court. Consequently, the Court will not consider these allegations in evaluating Plaintiff's claim. Otherwise, Plaintiff's Section 504 disability harassment claim again points to the incidents in which S.S. sustained physical injuries while at MacFarland Middle School, including Plaintiff's allegation that the Classroom Aide used improper physical restraint with S.S, the head injury S.S. received from being hit in the head with a ball during physical education class, and the incident in which S.S. was pushed down by a student running away from a teacher in the cafeteria. See Am. Compl. ¶¶ 71, 74, 77, 82. As established in Part B(a)(ii), the Court finds that the Hearing Officer properly discredited Plaintiff's testimony about S.S.'s injuries allegedly inflicted by the Classroom Aide. Since there was otherwise no evidence in the Administrative Record that the Classroom Aide inflicted injury on S.S., this allegation does not support Plaintiff's Section 504 claim.
As for the incidents in the physical education class and the cafeteria, the Court has already found that there was not sufficient evidence in the Administrative Record to show that these incidents caused S.S. to be denied the benefits of a FAPE. See Part Part B(a)(ii). Accordingly, the Court finds that S.S. was not denied benefits or otherwise discriminated against solely because of his disability and enters summary judgment on Count V in Defendant's favor.
Finally, Plaintiff alleges that Defendant violated Section 504 by failing to provide S.S. a FAPE. Plaintiff specifically identifies several accommodations that she alleges Defendant failed to provide thus denying S.S. a FAPE. As with Plaintiff's Section 504 disability harassment claim, Plaintiff again presents allegations that were not raised in the administrative due process hearing and thus were not properly exhausted. Specifically, Plaintiff makes
Plaintiff also alleges that DCPS is liable under Section 504 for denying S.S. a FAPE by failing to place him in a safe school environment. This allegation traces Plaintiff's inappropriate educational placement IDEA claim (Count II), for which the Court has already denied Plaintiff summary judgment because the Administrative Record does not establish that S.S. failed to make progress at MacFarland due to school avoidance triggered by bullying or disability harassment. Accordingly, the Court finds that this allegation also does not support a finding of a denial of a FAPE in violation of Section 504.
The only two allegations that Plaintiff has presented under this count that have properly been exhausted and that actually allege a denial of a FAPE are the allegations that DCPS denied S.S. a FAPE by failing to provide home instruction and by failing to provide an optometry evaluation. Indeed, these are the two bases on which the Hearing Officer found DCPS to have denied S.S. a FAPE in her March 30, 2013, Determination. However, to state a Section 504 claim based on alleged IDEA violations, "something more than a mere failure to provide the [FAPE] must be shown." Lunceford, 745 F.2d at 1580 (quoting Monahan, 687 F.2d at 1170). Plaintiff needs to show that the school officials acted in bad faith or demonstrated gross misjudgment in denying S.S. these services. Alston, 770 F.Supp.2d at 298.
The Court finds that there is nothing in the Administrative Record or the Hearing Officer Determination showing that DCPS acted in bad faith or exercised gross misjudgment in failing to provide S.S. home instruction or conduct the optometry evaluation. As evidence of DCPS' bad faith and gross misjudgment, Plaintiff first points to evidence that DCPS' only witness at the due process hearing lied about her credentials during the hearing
Plaintiff raises the following additional examples of alleged bad faith and/or gross misjudgment, but they have no relation to the only two relevant denials of services — the optometry evaluation and home instruction — and no aggravating factors are otherwise associated with these two denials of services. Moreover, these individual claims do not support a conclusion that
In sum, there is no evidence to support that DCPS acted in bad faith and/or exercised gross misjudgment.
Plaintiff's final count — Failure of Hearing Officer to Render a Fair and Proper Decision — effectively restates several of the arguments with which the Court has already dealt and rejected throughout the opinion. The Court finds that the Hearing Officer thoroughly set out in her Determination all of the evidence, that Plaintiff has not pointed to any evidence that the Hearing Officer did not consider, and that the Hearing Officer's findings and credibility determinations are reasonable and based on the record. The Court agrees with the Hearing Officer's findings and conclusions of law. That Plaintiff does not agree with the Hearing Officer's Determination does not make it unfair or improper. Accordingly, the Court enters judgment in Defendant's favor on Count VIII.
For the reasons stated, the Court DENIES Plaintiff's [34] Motion for Leave to Submit Additional Evidence. In addition, the Court DENIES Plaintiff's [46] Motion for Summary Judgment and GRANTS Defendant's [47] Cross-Motion for Summary Judgment. Accordingly, the Court enters judgments in favor of Defendant on all eight counts in Plaintiff's Amended Complaint and DISMISSES Plaintiff's Amended Complaint.
An appropriate Order accompanies this Memorandum Opinion.