### UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA CASSANDRAWHEATEN, parentand nextfriend ofD.W., a minor, ) ) ) ) 

### Plaintiff,



### v. ) Civil Case No. 09-986 (RJL) ) ) 

### DISTRICT OF COLUMBIA

### etal., ) ) 

### Defendants. 

## ¢,_ ... MEMORANDUM OPINION (July

### 1:t:a, 2010) [#10, #11] Plaintiff, Cassandra Wheaten ("Wheaten"), filed this lawsuit on behalfofher child, D.W., seeking an award ofcompensatory education on the theory that the District ofColumbia and Michelle Rhee, Chancellor ofthe District ofColumbia Public School System ("DCPS"), (together, the "defendants") denied D.W. a free appropriate public education ("FAPE") in violation ofthe Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 etseq. Before the Court are the parties' cross-motions for summaryjudgment. Upon consideration ofthe parties' pleadings, relevant law, and the entire record herein, the defendants' motion is GRANTED. 

### BACKGROUND D.W. is a learning disabled child who has beenreceiving special education services since 1999. AR 156. He attended Dunbar Senior High School ("Dunbar") from 2005 until November 2007. AR6. At Dunbar, D.W. received mostly Ds and Fs on hisreport card. AR 75. On February 26,2007, a multidisciplinary team ("MDT") met to review D.W.'s Individualized Educational Plan ("IEP"). The MDTrecommended transferring D.W. from Dunbarto an institution outside ofgeneral education. AR 153. On April 23, 2007, D.W. received a neuropsychological evaluation to assist in developing an appropriate educational placement for him. D.W. was diagnosed with, inter alia, a learning disorder, specificallyvisual-spatial learning; a history ofperinatal cerebral anoxia; and a history ofdifficulty meeting academic and behavioral expectations. AR 169. The examiner determined that D.W. would benefit from placement in an educational program with individualized instruction to address his academic and behavioral difficulties, as well as vocational training and basic life skills training. Id. On September 12,2007, an MDTmet to review and revise D.W.'s IEP. His new IEP required 27.5 hours ofspecial education for D.W. and included goals for math, reading, written expression, and vocational skills. AR46-52. The MDT agreed that D.W. should be placed in an "out ofgeneral education classroom" and that Dunbarwas not an appropriate placement for D.W. Id. On November 16,2007,the parties negotiated a settlement agreement whereby defendant would place and fund D.W.'s enrollment at Accotink Academy ("Accotink") in Springfield, Virginia. AR2. D.W. began attending Accotink on November22,2007. AR 5. There he participated in a "highly structured and supervised classroom, with a low student-to-staffratio and access to frequent reinforcement." AR 144. A psychological

2evaluation dated January 13,2008,recommended that D.W. receive individual therapy services to address his anxiety, coping skills, and self-esteem and interpersonal issues. AR 145. During his first two semesters at Accotink, D.W. received mostly Cs, one B, and one D. AR 220. Teacher assessments noted that his grades were not indicative ofhis ability but instead reflected mandatory letter grade drops due 

### tofrequent absences! Id. On February 14,2008, an MDT metto review and revise D.W.'s IEP. D.W. was classified as learning disabled and was to remain in a full-time special education setting. AR 138. In addition to 28 hours ofspecial education instruction, the IEP was modified to include one hour ofindividual psychosocial therapy and one hour ofindividual speech therapy perweek. AR 36. At the MDTmeeting, D.W.'s educational advocate stated that D.W. was owed 220 hours ofcompensatory education, an assertion that the DCPS representative disputed. AR 142-43. On February 20, 2008, D.W.'s educational advocate sent the DCPS representative a letter slightly revising his request, stating that D.W. was owed 190 hours ofspecialized instruction and 22 hours ofspeech language services as compensatory education for inappropriate placement at Dunbar for several months during the 2006-2007 school year and the beginning ofthe 2007-2008 school year, until his placement at Accotink in November 2007. AR 148. On April 21, 2008, plaintifffiled a due process complaint alleging that DCPS had denied D.W. a FAPE for those same time periods. AR 25. After a hearing on June 6, 2008, a Hearing OfficerDetermination issued on June 17,2008 (the "HOD"), concluded

3thatthe DCPS had denied D.W. a FAPEwhenhe was enrolled at Dunbarbutthat DCPS had remedied the FAPE denial by placing and funding D.W. at Accotink. AR 5, 14. The HOD also denied Wheaten's request for compensatory education, finding that she had not satisfied the criteria established in Reidv. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). AR 12, 14. OnMay 27,2009, plaintiffbrought the instant action to reverse the June 10, 2008 HOD. Theparties then filed cross-motions for summaryjudgment. ANALYSIS Summaryjudgmentis appropriate when the pleadings and the record demonstrate that "there is no genuine issue as to any material fact and thatthe movingparty is entitled tojudgment as a matter oflaw." Fed. R. Civ. P. 56(c). The party seeking summary judgmentmay support its motion by "identifyingthose portions of'thepleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ifany,' which it believes demonstrate the absence ofa genuine issue of material fact." See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). In opposing summaryjudgment, the "nonmovingparty [must] go beyond the pleadings and by [its] own affidavits, orby the 'depositions, answers to interrogatories, and admissions on file,' designate'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(c), (e)). In determining whether a genuine issue ofmaterial fact is in dispute, "[t]he evidence ofthe non-movant is to be believed, and alljustifiable inferences are to be drawn in his favor." Andersonv. LibertyLobby, Inc., 477 U.S. 242, 255 (1986). 4The IDEA guarantees children with disabilities the availability ofa FAPE. 20 U.S.C. § 1400(d)(1)(A). In designing an appropriate education for students with disabilities, the child's parents, teachers, school officials, and otherprofessionals collaborate to develop an IEP to meetthe child's unique needs. 20 U.S.C. § 1414(d)(1 )(B). Ifthe parent objects "to the identification, evaluation, or educational placement ofthe child, or the provision ofa free appropriate public education to such child," he may seek an impartial due process hearing. 20 U.S.C. §§ 1415(b)(6), 1415(1)(1). Ifthe parent is dissatisfied with the outcome ofthat hearing, he may appeal the decision to a state court ofcompetentjurisdiction or a federal district court. 20 U.S.C. § 1415(i)(2)(A). In conducting its review, this Court must grant reliefas appropriate, based on a preponderance ofthe evidence. 20 U.S.C. § 1415(i)(2)(C)(iii). The Supreme Court, however, has interpreted the "preponderance standard ofreview not to be an allowance of unfettered de novo review." 

### Reid, 401 F.3d at 521 (quoting

### Bd. o/Educ. o/Hendrick Hudson CentralSch. Dist. v. 

### Rowley, 458 U.S. 176, 206 (1982)). Thus while this Court makes an independent determination, it "must also give 'due weight' to the administrative proceeding and afford some deference to the expertise ofthe hearing officer and school officials responsible for the child's education." 

### Simmons v. 

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

### Lyons v. 

### Smith, 829 F. Supp. 414, 418 (D.D.C. 1993)). The burden ofproof, not surprisingly, rests with theparty challenging the administrative determination, who must "atleast take on the burden ofpersuadingthe 5courtthatthe hearing officerwas wrong." Reid, 401 F.3d at 521 (quotingKerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). Forthe following reasons, the plaintiff has not met herburden here. Plaintiffalleges that because the defendants denied D.W. a FAPE while he attended Dunbar, he is entitled to receive compensatory education. Principally citingReid for support, Wheaten argues that compensatory education is intended to remedypast FAPE denials and thus D.W.'s subsequentplacement in private schooling at Accotink

was insufficientto erase D.W.'s entitlementto a compensatory education award. I disagree. While the plaintiffis correct that a court may order compensatory education when a disabled child has been deprived ofa FAPE and that such "compensatory awards should aim to place disabled children in the same position they would have occupiedbut for the school district's violations ofIDEA," id. at 518, the plaintifffails to acknowledge that the hearing officer specifically determined that D.W.'splacement at Accotink remedied the priorFAPE denial, thereby rendering an award ofcompensatory education unnecessary. In determining an equitable compensatory education award, a hearing officer must engage in a fact-intensive analysis that is qualitative ratherthan quantitative. Id. at 524. Our Circuithas specifically rejected "cookie-cutter" or mechanical remedies, such as awarding one hour ofcompensatory instruction for each hourthat the studentwas denied a FAPE, and stressed that a hearing officermust take into account individual assessments ofthe student and focus on the student's individual needs. Id. at 523-24. In D.W.'s case, 6the hearing officer conductedjust such a fact-intensive analysis and detennined thatthe FAPE violation had already beenremedied by D.W.'splacement at Accotink. Indeed, the HOD specifically states that "thehearing officer did not assume that the Accotink Academy placement, alone, provided compensation." AR 13. Instead, the hearing officer assessed the evidence submitted by the parties and detennined that Wheaten "did not offerproofthat the placement [at Accotink] did not compensate for the priorFAPE denial." Id. In fact, the hearing officer concluded that "[t]he overwhelming evidence is that the student is makingprogress at Accotink." Id. In making his determination, the hearing officerpointedto D.W.'s grades at Accotink, which showed marked improvement from Dunbar, and the psychosocial therapy services that D.W. was receiving in accordance with the February 14,2008 IEP. Id. The hearing officer also noted that Wheaten "testified that her son is doing much better at Accotink-his grades are better; his behavior improved; he wants to go to school; his attitude and self-confidence improved; and she is happy with Accotink." Id. In light ofall the evidence, the hearing officer concluded that D.W. did not require "additional services beyond his Accotink IEP to undo damage causedby priorviolations." Id. In otherwords, the hearing officer denied Wheaten's request for compensatory education not because ofAccotink's private school status butbecause D.W. showed a clear improvement in his attitude and grades-all ofwhich occurred before plaintifffiled her complaint-indicatingthat his FAPE denial had been fully remedied.

7Based on a thorough review ofthe record, I find no reason to reverse the hearing officer's decision, and the plaintiffhas not provided one. Given the strides that D.W. made following his placement at Accotink, both academically and behaviorally, and the continuing services provided to him underthe most recent IEP, the Court agrees with the HOD that no award ofcompensatory education is warranted. See Thomas v. Dist. of Columbia, 407 F. Supp. 2d 102, 115 (D.D.C. 2005) (acknowledging that "[i]tmay be conceivable that no compensatory education is required for the denial ofFAPE" because

a student has "flourished in his currentplacement"). Finding no basis to overturn the hearing officer's determination that D.W. was not owed compensatory education, plaintiffs claim for 212 hours ofcompensatory education must fail. CONCLUSION For all ofthe foregoing reasons, the Court DENIES the plaintiffs Motion for Summary Judgment and GRANTS the defendants' Cross-Motion for SummaryJudgment. An Order consistent with the Court's ruling accompanies this Memorandum Opinion.

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