United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 23, 2015 Decided July 10, 2015

No. 14-7021

JANE LEGGETT AND K.E., A MINOR, BY HER PARENT AND NEXT

FRIEND, JANE LEGGETT,

APPELLANTS

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00084)

Jane A. Leggett, pro se, argued the cause and filed the briefs 

for appellants. 

Carl J. Schifferle, Assistant Attorney General, Office of the 

Attorney General for the District of Columbia, argued the cause 

for appellee. With him on the brief were Irvin B. Nathan, Attorney 

General at the time the brief was filed, Todd S. Kim, Solicitor 

General, and Loren L. AliKhan, Deputy Solicitor General.
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Before: TATEL and PILLARD, Circuit Judges, and EDWARDS, 

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: This case presents a recurring issue 

under the Individuals with Disabilities Education Act: When a 

parent chooses, without school officials’ consent, to send her child 

to a private school, under what circumstances must the school 

district reimburse the parent for the costs of attending that school? 

Here, the parent chose a private boarding school, and both a 

hearing officer and the district court denied reimbursement 

because, in their view, the child had no need to be in a residential 

program. On the record before us, however, all statutory, 

regulatory, and judicial requirements for reimbursement of the 

costs of private school have been satisfied: the school district failed 

to offer the child a “free appropriate public education” in either a 

public school or a non-residential private school, 20 U.S.C. 

§ 1412(10)(C)(i); the private boarding school the parent selected 

was, at the time, the only one on the record “reasonably calculated 

to enable the child to receive educational benefits” designed to 

meet the child’s needs, Board of Education of Hendrick Hudson 

Central School District v. Rowley, 458 U.S. 176, 207 (1982); the 

residential component of the private school was in fact “necessary 

to provide a free appropriate public education to” the child, 34 

C.F.R. § 104.33(a)(c)(3); and the school district has not shown 

that the parent acted “unreasonabl[y],” 20 U.S.C. 

§ 1412(10)(C)(iii)(III). Accordingly, we reverse and remand for 

further proceedings consistent with this opinion.

I.

Under the Individuals with Disabilities Education Act 

(IDEA), every child with a disability in this country is entitled to a 

“free appropriate public education,” or FAPE. 20 U.S.C. 

§ 1400(d)(1)(A). As Congress explained when it passed IDEA, the 

Act’s primary purpose is “to ensure that all children with 
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disabilities have available to them a[n] . . . education that 

emphasizes special education and related services designed to 

. . . prepare them for further education, employment, and 

independent living.” Id. “Special education,” in turn, means, 

simply, instruction “specially designed . . . to meet the unique 

needs of a child with a disability.” Id. § 1401(29).

To guarantee that no child with a disability misses out on the 

education the Act promises, and to ensure, in turn, that the 

education offered is “appropriate,” IDEA requires that school 

officials develop a comprehensive strategy, known as an 

“individualized education program,” or IEP, tailored to the 

student’s unique needs. Id. § 1414(d)(1)(A). Critical to the issue 

before us, IDEA requires that school districts have an IEP in place 

for each student with a disability “[a]t the beginning of each school 

year.” Id. § 1414(d)(2)(A). 

Although Congress envisioned that children with disabilities 

would normally be educated in “the regular public schools or in 

private schools chosen jointly by school officials and parents,” 

Florence County School District Four v. Carter By and Through 

Carter, 510 U.S. 7, 12 (1993), it provided that parents who 

believe that their child’s public school system failed to offer a free 

appropriate public education—either because the child’s IEP was 

inadequate or because school officials never even developed one—

may choose to enroll the child in a private school that serves her 

educational needs. Id. Specifically, IDEA provides that if parents 

“enroll the child in a private . . . school without the consent of [the 

school district], a court or a hearing officer may require the [school 

district] to reimburse [them] for the cost of that enrollment . . . .” 

20 U.S.C. § 1412(10)(C)(ii). The statute requires reimbursement, 

however, only where the school district has failed to “ma[k]e a free 

appropriate public education available to the child.” Id.

Reimbursement, moreover, may be “reduced or denied” if the 

parents fail to notify school officials of their intent to withdraw the 

child, id. § 1412(10)(C)(iii)(I), deny them a chance to evaluate the 
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student, id. § 1412(10)(C)(iii)(II), or, of special relevance here, 

otherwise act “unreasonabl[y],” id. § 1412(10)(C)(iii)(III). 

In regulations that largely track these provisions, the 

Department of Education has made clear that parents can obtain 

reimbursement even for residential programs. Specifically, the 

regulations state that “[i]f a public or private residential placement 

is necessary to provide a free appropriate public education to a 

handicapped [child] because of his or her handicap, the placement, 

including non-medical care and room and board, shall be provided 

at no cost to the [child] or his or her parents or guardian.” 34 

C.F.R. § 104.33(c)(3).

Elucidating these provisions, the Supreme Court explained in 

School Committee of Town of Burlington v. Department of 

Education of Massachusetts that it is the Act’s grant of equitable 

authority that empowers a court “to order school authorities to 

reimburse parents for their expenditures on private special 

education for a child if the court ultimately determines that such 

placement . . . is proper under the Act.” 471 U.S. 359, 369 (1985). 

In such cases, “parents who disagree with the proposed IEP are 

faced with a choice: go along with the IEP to the detriment of their 

child if it turns out to be inappropriate or pay for what they 

consider to be the appropriate placement.” Id. at 370. For parents 

who make the latter choice, the Court reasoned, “it would be an 

empty victory to have a court tell them several years later that they 

were right but that these expenditures could not in a proper case be 

reimbursed by the school officials.” Id. Because such a result 

would be contrary to IDEA’s guarantee of a “free appropriate 

public education,” the Court confirmed that “Congress meant to 

include retroactive reimbursement to parents as an available 

remedy in a proper case.” Id.

A decade later, and again considering the conditions under 

which reimbursement for a parental placement is appropriate, the 

Court reiterated in Florence County School District Four v. 

Carter that IDEA empowers courts to order school officials to 
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reimburse parents for their expenditures on private special 

education if the private placement was “‘proper under the Act.’” 

510 U.S. at 12 (quoting Burlington, 471 U.S. at 369). In setting 

out that requirement, the Court acknowledged that “Congress has 

imposed a significant financial burden on states and school 

districts that participate in IDEA.” Id. at 17. But school districts, 

the Court observed, have complete control over their fate: “public 

educational authorities who want to avoid reimbursing parents for 

the private education of a disabled child can do [so by] . . . giv[ing]

the child a free appropriate public education in a public setting, or 

plac[ing] the child in an appropriate private setting of the State’s 

choice.” Id. This, according to the Court, “is IDEA’s mandate, and 

school officials who conform to it need not worry about 

reimbursement claims.” Id. 

In this case, we must determine the precise contours of these 

requirements: Under what circumstances does the school district’s 

failure to offer an IEP by the start of the year—either in a public or 

private school—amount to a denial of FAPE? When is a private 

boarding-school placement “proper under the Act”? And what 

factors must a court consider when addressing the equities? But 

given that these issues arise in the context of the education of a 

particular child—Appellant Jane Leggett’s teenage daughter 

K.E.—we turn first to the facts.

Now nineteen years old, K.E. attended school in the District of

Columbia Public Schools, or DCPS, from kindergarten through 

the end of her first attempt at the eleventh grade in 2012. While in 

elementary school, K.E. was diagnosed with several learning 

issues, including “deficits in auditory awareness and in fine motor 

skills.” Hearing Officer Determination at 4. Although her 

elementary school provided her with special education, her middle 

school did not. Still, when K.E. entered Wilson High School in 

2009, Leggett asked school officials to evaluate her daughter for 

learning disabilities. The school agreed to perform that evaluation, 
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but it had failed to do so by the fall of 2011 when K.E. began her 

junior year. 

By October of that year, although K.E. had been identified as 

a student of above-average intelligence, she was failing most of her 

classes, often due to inattention, disorganization, and anxiety. 

Dispirited by her personal and academic struggles, K.E. threatened 

suicide that same fall. In February 2012, spurred on by K.E.’s 

efforts to harm herself and the news that she would probably fail to 

graduate if things did not change, Leggett again asked school 

officials to evaluate her daughter. When the school district 

refused—instead recommending that Leggett pay for a private 

assessment—Leggett filed a due-process complaint seeking a 

comprehensive evaluation to determine K.E.’s eligibility for 

special education. See 20 U.S.C. § 1415(f) (providing for an 

“impartial due process hearing, which shall be conducted by the 

State educational agency or by the local educational agency”). 

When school officials finally agreed to undertake the necessary 

testing, Leggett withdrew her complaint. 

The resulting evaluations demonstrated that although K.E.’s 

verbal skills were in the “superior” range, her non-verbal cognitive 

abilities were “low-average” and she demonstrated weakness in 

executive functions, including organization, planning, and 

processing speed. Even more worrisome, DCPS’s own 

psychologist concluded that K.E.’s anxiety and depression were 

“disabling” to her “life functions,” Hearing Officer Determination 

at 8, and K.E.’s private doctor diagnosed her with Major 

Depressive Disorder, Panic Disorder, Post-Traumatic Stress 

Disorder, an Identity Problem, a Reading Disorder, and AttentionDeficit Hyperactivity Disorder. To combat those conditions, the 

private psychologist recommended that K.E. be placed in a “small, 

highly structured therapeutic classroom with a low student to 

teacher ratio throughout her day” and proposed a “more intensive 

educational program” for K.E., including benchmarking of reading 

fluency, strategies to support reading comprehension, and 

evidence-based cognitive behavioral strategies for depression and 
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anxiety. Neuropsychological Evaluation at 6–7; Due Process 

Hearing, Testimony of Dr. Culotta at 138.

Given these recommendations, Wilson officials convened a 

team in the weeks following final exams to develop an IEP for 

K.E. for the next school year. See 20 U.S.C. § 1414(b)(4)(A) 

(“[T]he determination of whether the child is a child with a 

disability as defined in [the Act] and the educational needs of the 

child shall be made by a team of qualified professionals and the 

parent of the child . . . .”). Following two June meetings, however, 

the team had yet to complete the IEP, so it agreed to meet again in 

late August to finalize the plan. The team also recommended that, 

in the meantime, K.E. receive counseling over the summer. On 

June 21, just a week after the IEP team had met, Leggett emailed 

Wilson’s Special Education Coordinator to pin down the details of 

the August meeting and to ask for guidance on the recommended 

summer counseling. She received no response. Facing a summer 

without the recommended assistance, Leggett next left a voicemail 

message for the Coordinator. No response. Finally, Leggett sent a 

letter in early July to the same effect. Again, nothing.

Having received no indication that DCPS would finalize 

K.E.’s IEP before the school year began, and thus with no 

assurance that K.E. would get the special-education services she 

needed, Leggett began exploring alternative placements. She 

investigated “literally dozens” of possible schools, but she found 

only two that appeared to meet K.E.’s needs. One, a local private 

day school, rejected K.E. on the ground that a “highly structured, 

supportive school or therapeutic setting” would better serve her 

needs. The other, the Grier School—a boarding school in 

Pennsylvania—accepted her for the upcoming term.

On August 6, just three weeks before the Wilson school year 

would begin, Leggett sent DCPS written notice, as the Act 

requires, see 20 U.S.C. § 1412(10)(C)(iii)(I)(bb), that she would 

be withdrawing K.E. from Wilson and seeking public funding for 

her placement at the Grier School. Critical for our purposes, 
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Leggett’s communication made clear that she “remain[ed] open 

to” the possibility that K.E. could return to Wilson if the school 

offered her a satisfactory IEP. Letter from Benjamin W. 

Massarsky to Peter Cahall, Principal, Woodrow Wilson High 

School, Aug. 6, 2012. Again, no response. Having heard nothing 

by August 17, just 10 days before the first day of the Wilson 

school year, Leggett filed a new due-process complaint seeking 

either an acceptable IEP at Wilson or reimbursement for the cost 

of attending Grier.

Five days before the first day of school, Leggett finally heard 

from DCPS when school officials contacted her to schedule a 

“resolution meeting.” The record does not indicate what happened 

at that meeting, and although the parties agreed at oral argument 

that the meeting occurred on August 29, neither could offer any 

details. Everyone agrees, however, that the session resulted in no 

IEP. On September 4, without an IEP in place and with no 

guarantee that K.E. would receive the special education she 

required if she returned to Wilson, Leggett enrolled her at Grier. 

By all accounts, K.E. thrived there. The school offered her 

individualized tutoring, life-skills instruction, and extra study hall, 

all coordinated under the rubric of Grier’s Learning Skills 

Program, and all consistent with her psychologists’ 

recommendations. The proof is in the results: whereas K.E. had 

failed to complete the eleventh grade at Wilson, she pulled all A’s 

and B’s in her first semester at Grier.

Meanwhile, on September 11, more than two weeks into the 

Wilson school year, K.E.’s IEP team met once again to try to 

finalize her plan. By September 24, officials had come up with a 

document, but according to Leggett, the IEP was riddled with 

errors and failed to include many of the special-education 

programs K.E. needed. DCPS, by contrast, insists that the 

document was substantively valid, if sloppily done. Whichever 

version one credits, though, DCPS officials clearly had no IEP in 
9

place for K.E. by the time the Wilson year began, or even by the 

time she had to enroll at Grier. 

In late October, a Hearing Officer took up Leggett’s request 

for reimbursement for the tuition and fees she had paid to Grier. 

Although the Officer found that DCPS had denied K.E. a free 

appropriate public education, he nonetheless concluded that the 

Grier placement was improper because K.E. had no need to be in a 

residential program. See Hearing Officer Determination at 16–20. 

Accordingly, he denied Leggett any reimbursement at all.

Pursuant to IDEA’s judicial-review provision, 20 U.S.C. 

§ 1415(i)(2)(A), Leggett filed two law suits against DCPS in the 

U.S. District Court for the District of Columbia, one seeking 

reimbursement for the 2012–13 school year and the other for 

2013–14. In the matter before us now—the 2012–13 suit—the 

parties filed cross motions for summary judgment and, basing its 

decision entirely on the administrative record, the district court 

denied Leggett’s request for reimbursement for much the same 

reason as the Hearing Officer had, adding only that in its 

estimation, Leggett had acted unreasonably by withdrawing K.E. 

from Wilson in August and sending her to an expensive boarding 

school. See K.E. v. District of Columbia, 19 F. Supp. 3d 140, 

151–152 (D.D.C. 2014). 

Leggett appeals. Although our review would typically be for 

“clear error as to any factual findings and abuse of discretion as to 

the remedy,” Reid ex rel. Reid v. District of Columbia, 401 F.3d 

516, 522 (D.C. Cir. 2005), where, as here, the district court 

“t[akes] no additional evidence” and instead “grant[s] summary 

judgment based simply on the administrative record . . . we review 

its decision de novo . . . and apply the same non-deferential 

standard the district court . . . applied to the hearing [officer’s 

legal] decision.” Id.
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II.

As interpreted by the Supreme Court, IDEA requires school 

districts to reimburse parents for their private-school expenses if 

(1) school officials failed to offer the child a free appropriate 

public education in a public or private school; (2) the privateschool placement chosen by the parents was otherwise “proper 

under the Act”; and (3) the equities weigh in favor of 

reimbursement—that is, the parents did not otherwise act 

“unreasonabl[y].” See Carter, 510 U.S. at 15–16; 20 U.S.C. 

§ 1412(10)(C)(iii)(III). Leggett and DCPS disagree at every turn.

Leggett argues that DCPS’s failure to provide K.E. an IEP by the 

beginning of the 2012 school year itself constituted an IDEA 

violation, that the placement at Grier was proper, and that nothing 

in the record suggests that she acted unreasonably. In her view, 

therefore, the equities weigh in her favor and she is entitled to 

reimbursement. For its part, DCPS argues that any IDEA violation 

was procedural and thus not a denial of FAPE, that the Grier 

placement was improper because K.E. could have succeeded in a 

non-residential program, and that Leggett acted unreasonably in 

her dealings with Wilson administrators. Accordingly, it argues, 

Leggett is entitled to no reimbursement at all. We address each 

point in turn.

A.

Recall that the IEP is the vehicle through which school 

districts typically fulfill their statutory obligation to provide a free 

appropriate public education and that officials must have an IEP in 

place for each student with a disability “[a]t the beginning of each 

school year.” 20 U.S.C. § 1414(d)(2)(A). DCPS concedes that it 

failed to satisfy that timeliness requirement with respect to K.E. 

The parties part ways, however, over the import of that 

uncontested fact. According to Leggett, DCPS’s failure to offer 

K.E. an IEP by the first day of school was, by itself, a denial of 

FAPE, thus satisfying the first of IDEA’s three requirements for 

private-school reimbursement. DCPS’s own Hearing Officer 
11

agreed: “I find . . . that DCPS’[s] failure to develop an IEP for 

[K.E.] before the start of the 2012–2013 school year . . . was a 

clear denial of FAPE.” Hearing Officer Determination at 17. 

Disagreeing with that conclusion, DCPS argues that the IEP 

violation was procedural and de minimis and, therefore, not a 

denial of FAPE. 

DCPS has the standard correct: a procedural violation, such 

as a school district’s failure to provide an IEP by the beginning of 

the school year, will constitute a denial of a free appropriate public 

education only if it “result[s] in loss of educational opportunity” 

for the student. Lesesne ex rel. B.F. v. District of Columbia, 447 

F.3d 828, 834 (D.C. Cir. 2006) (internal quotation marks 

omitted). That is, a school district’s failure to comply with the 

procedural requirements of IDEA will be “actionable” only “if 

those procedural violations affected the student’s substantive 

rights.” Id. at 832, 834 (emphasis omitted).

Applying that standard to the circumstances of this case, 

DCPS argues that Leggett has not “demonstrated” that its failure 

to offer K.E. an IEP by the beginning of the 2012 school year—a 

delay of somewhere between two weeks and a month, depending 

on whose facts one credits—amounted to “an educational 

deprivation or substantive violation.” Appellee’s Br. 23. To be 

sure, this court has at times required parents to “demonstrate . . . 

that [the student’s] education was affected by any procedural 

violations [the school district] might have committed,” Lesesne, 

447 F.3d at 834. We have done so, however, only where the 

violation was not obviously substantive. See, e.g., id. (plaintiff 

failed to demonstrate that the school district’s failure to satisfy 

mid-year IEP deadline was a substantive violation). And in the 

particular circumstances of this case, we think the violation was 

quite clearly substantive. Although “[a] delay does not affect 

substantive rights if the student’s education would not have been 

different had there been no delay,” D.R. ex rel. Robinson v. 

Government of District of Columbia, 637 F. Supp. 2d 11, 18 
12

(D.D.C. 2009), the converse is true as well: a delay does affect a 

student’s substantive rights, and is therefore “actionable,” see 

Lesesne, 447 F.3d at 832, if the student’s education would have 

been different but for the procedural violation. That is the case 

here. DCPS concedes—and the Hearing Officer found—that K.E. 

needed an IEP that included special education and related services. 

See Hearing Officer Determination at 16 (noting that K.E. was 

“determined to be eligible for special education and related 

services” and describing “her IEP needs”); see also Appellee’s Br. 

5–7 (“The [IEP] team agreed at the May 2012 meeting that K.E. 

was eligible for special education services.”). Put another way, 

DCPS acknowledges that K.E.’s education would have been 

different if school officials had fulfilled their statutory 

responsibilities on time: with an IEP in place at Wilson, K.E. 

would have received the targeted special education she needed; 

without an IEP and still at Wilson, she would have been on her 

own, much as she was for the first three years of high school, 

during which she struggled mightily. Under these circumstances, 

DCPS’s failure to have an IEP in place by the start of the school 

year—in clear violation of its IDEA obligations—adversely 

affected K.E.’s educational opportunities and therefore denied her 

a FAPE. DCPS’s arguments to the contrary are without merit.

First, although its logic is far from clear, DCPS seems to 

contend that Leggett is actually to blame for the violation because 

she “had already decided” to send K.E. to a private boarding 

school some three weeks before the start of the school year, while 

school officials were still doing their best to get an IEP in place. 

Appellee’s Br. 23. According to DCPS, then, it was Leggett’s fault 

that school officials ran out of time and so it was Leggett, not 

DCPS, who effectively caused K.E. to lose out on educational 

opportunities. That is, it was Leggett who transformed the absence 

of an IEP from a procedural deficiency into a substantive harm. In 

this sense, the school system argues, this case looks a lot like C.H. 

v. Cape Henlopen School District, 606 F.3d 59 (3d Cir. 2010). 

There, like here, the school district failed to complete an IEP for 
13

the student before the start of the school year. And, like here, the 

child’s mother elected to withdraw him from his public school, 

place him in a private school, and seek reimbursement. Denying 

reimbursement, the Third Circuit found that the delay was 

procedural, not substantive, because the parent had caused it. 

Although the school district missed the deadline, it had 

demonstrated a “consistent willingness to evaluate C.H. and to 

develop an IEP.” Id. at 69. “[T]he [p]arents,” however, “delayed 

the continuation of [the IEP] meeting until after the start of classes, 

and ultimately terminated the process by filing a due process 

request.” Id. Under those circumstances, the court held, the school 

district’s failure to adopt a final IEP before the first day of school 

did not violate the student’s substantive rights. 

By contrast, the record in this case contains no evidence that 

Leggett’s decision to withdraw K.E. from Wilson prevented school 

officials from developing an IEP. Indeed, although Leggett notified

Wilson on August 6 that K.E. would enroll at Grier to start the 

school year, she expressly left open the possibility that K.E. could 

instead begin the year in public school if officials were prepared to 

provide the special education that even the school system agreed 

she needed. See Massarsky Letter. What is more, even if Leggett 

had never made this offer and instead had summarily withdrawn 

K.E. from Wilson, nothing would have stopped DCPS from 

fulfilling its statutory obligation to complete an IEP by the 

beginning of the school year. This case thus looks nothing like 

Cape Henlopen. There the court pointed to evidence that the 

school district would likely have gotten an IEP together but for the 

parent’s intransigence. Here Leggett had made K.E. available for 

evaluation, and she remained open to leaving her daughter at 

Wilson until she had to enroll at Grier. DCPS had until the 

beginning of the Wilson school year to create an IEP for K.E. It is 

entirely illogical for the school system to blame Leggett for its 

failure to do so. 
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DCPS next argues that Leggett’s own communications with 

school officials show that those officials were acting in good faith. 

For instance, it points out that Leggett told the Special Education 

Coordinator that she had “sent a set of proposed [classroom] 

accommodations to the special education teacher and had talked 

more with the school social worker about goals for the behavioral 

section of the IEP.” Appellee’s Br. 8 (internal quotation marks 

omitted) (alteration in original). Of course, these communications 

merely highlight the fact that despite Leggett’s repeated entreaties, 

no IEP materialized. But DCPS’s argument gets even more 

preposterous. Seeking to demonstrate that Leggett should have 

known that school officials were on the road to an IEP, the school 

system observes that Leggett, “[f]ollowing up on [its] offer of 

counseling for K.E. during the summer, . . . suggested a specific 

therapeutic program in Connecticut, where K.E. would be 

spending most of the summer with her grandmother.” Id. at 8–9. 

The implication seems to be that Leggett had to have known that 

K.E. would be taken care of because school officials were 

considering summer placements. But we fail to see how Leggett’s

communication regarding her own efforts to find a summer 

program for K.E. could possibly demonstrate the school district’s 

good faith when school officials failed to respond to that very

communication.

Moreover, nothing in IDEA required Leggett to wait until the 

first day of school to pull K.E. out of Wilson. In fact, the Act 

expressly prohibited her from waiting that long. IDEA requires a 

parent to notify the school district ten days before she sends her 

child to private school to remedy an IDEA violation. See 20 

U.S.C. § 1412(10)(C)(iii)(I)(bb). On DCPS’s reading, Leggett 

should have given school officials a chance to finish the IEP by the 

first day of school at Wilson before withdrawing K.E. But had 

Leggett waited that long she would have been entitled to no 

reimbursement because she would have violated the ten-day notice 

requirement. DCPS, therefore, asks us both to require parents to 
15

notify school officials ten days out and to penalize Leggett for 

notifying them too early. DCPS cannot have it both ways. 

In sum, then, Leggett’s actions imposed no impediments to 

DCPS fulfilling its statutory responsibilities. Quite to the contrary, 

it was DCPS’s failure to develop an IEP that forced Leggett’s 

hand. School officials acknowledged in June 2012 that K.E. 

needed an IEP. Yet they responded to none of Leggett’s 

communications, fulfilled none of their statutory responsibilities, 

and left her in a position in which the only way to find out if DCPS

would ever develop an IEP would have been to leave K.E. at 

Wilson despite lacking any evidence that the school was close to 

having a plan ready. IDEA prohibits school districts from forcing 

parents to make that kind of decision. 

For all of these reasons, we agree with the Hearing Officer 

and the district court that DCPS denied K.E. a free appropriate 

public education by failing to have an IEP in place by the 

beginning of the school year. The school system, of course, may 

still escape liability if the placement at Grier was otherwise 

improper under the Act or if Leggett acted unreasonably, questions 

to which we now turn.

B.

The parties offer dueling tests for determining whether the 

Grier School placement was “‘proper under the Act.’” Carter,510 

U.S. at 12 (quoting Burlington, 471 U.S. at 369). According to 

Leggett, the placement was proper because Grier offered K.E. the 

tools she needed to complete her education. As DCPS would have 

it, the critical factor is that Grier is a residential school—one with 

an equestrian program, it repeatedly emphasizes. Because K.E. 

could have succeeded in a non-residential school, DCPS argues, 

the placement was improper. 

We begin with what is undisputed: under the Supreme Court’s

decision in Rowley, a public school district need not guarantee the 

best possible education or even a “potential-maximizing” one. 458 
16

U.S. at 197 n.21. Instead, an IEP is generally “proper under the 

Act” if “reasonably calculated to enable the child to receive 

educational benefits.” Id. at 207; see also Branham v. District of 

Columbia, 427 F.3d 7, 9 (D.C. Cir. 2005) (IEP need not 

maximize the child’s development as long as it “provide[s] some 

[educational] benefit”) (internal quotation marks omitted). True, 

as DCPS points out, the Supreme Court enunciated this principle, 

and this court has echoed it, in the context of disputes over whether 

the education the school district offered was proper. But we 

believe the standard applies as well where, as here, the parent 

makes the choice. Whether the school system or the parent chooses 

the private school, the Rowley standard protects the child by 

guaranteeing an education “reasonably calculated” to benefit her. 

As we explain below, moreover, where the parent selects the 

private school because the school system failed to provide a FAPE 

and the court finds that the school the parent selected is 

“reasonably calculated to enable the child to receive educational 

benefits,” the court may still “reduce[] or den[y]” reimbursement if

“[e]quitable considerations” warrant it—for instance, “if the cost 

of the private education was unreasonable.” Carter, 510 U.S. at 

16. In this way, and consistent with Rowley, we ensure not only 

that the child’s IDEA rights are fully protected, but also that the 

school system will not be required to fund a program that exceeds 

what the child needs to obtain a “free appropriate public 

education.” 

Employing the Rowley standard where the parent chooses the 

school is also consistent with the practice of our sister circuits. In 

the decision the Supreme Court affirmed in Carter, for instance, 

the Fourth Circuit held that “when a public school system has 

defaulted on its obligations under the Act, a private school 

placement is ‘proper under the Act’ if the education provided by 

the private school is ‘reasonably calculated to enable the child to 

receive educational benefits,’—the same standard by which the 

appropriateness of a public school’s IEP is assessed.” Carter By 

and Through Carter v. Florence County School District Four, 
17

950 F.2d 156, 163 (4th Cir. 1991), aff’d, 510 U.S. 7 (1993) 

(quoting Rowley, 458 U.S. at 207) (citation omitted). The Second 

Circuit has concurred, holding that “the same considerations and 

criteria that apply in determining whether the [s]chool [d]istrict’s 

placement is appropriate should be considered in determining the 

appropriateness of the parents’ placement . . . . [T]he issue turns on 

whether a placement—public or private—is ‘reasonably calculated

to enable the child to receive educational benefits.’” Frank G. v. 

Board of Education of Hyde Park, 459 F.3d 356, 364 (2d Cir. 

2006) (quoting Rowley, 458 U.S. at 207).

The baseline, then, is this: a parent’s unilateral private 

placement is proper under the Act so long as it is “reasonably 

calculated to enable the child to receive educational benefits.” 

Rowley, 458 U.S. at 207. DCPS urges us to apply a more exacting 

standard because Grier is a boarding school. In particular, it asks 

us to require that the placement be not just reasonably calculated 

to provide educational benefits, but necessary to serve that goal. 

In support, it points to the above-mentioned regulation providing 

that a school system must pay for a residential placement only if 

“necessary to provide a free appropriate public education to a 

handicapped person.” 34 C.F.R. § 104.33(c)(3). It also relies on 

McKenzie v. Smith, in which this court explained that a residential 

placement is unnecessary to the student’s education if it is “‘a 

response to medical, social or emotional problems that are 

segregable from the learning process.’” 771 F.2d 1527, 1534 

(D.C. Cir. 1985) (quoting Kruelle v. New Castle County School 

District, 642 F.2d 687, 693 (3d Cir. 1981)); see also Ashland 

School District v. Parents of Student R.J., 588 F.3d 1004, 1010 

(9th Cir. 2009) (although teachers reported that student had 

difficulty turning in assignments on time, she earned good grades 

when she completed her work, was well regarded by teachers, and 

was not disruptive, and it was student’s “risky behaviors” outside 

of school that prompted her parents to enroll her in facility). In 

other words, if a placement reasonably calculated to educate the 

child could be provided in a non-residential school or if a parent 
18

sends her child to a residential program primarily to treat the 

child’s emotional, social, or psychological issues, then the 

placement is not “necessary to provide a free appropriate public 

education.” Contrary to DCPS’s argument, however, neither of 

these principles bars reimbursement here.

To begin with, the record demonstrates that the Grier 

placement was primarily educational and not “a response to 

medical, social or emotional problems that are segregable from the 

learning process.” True, K.E.’s educational difficulties can be 

traced to her social issues—as well as her anxiety and depression,

which are, of course, “emotional problems,” though not of the 

“explosive” and debilitating variety present in McKenzie, see 771 

F.2d at 1533—but nothing in the record indicates that Leggett sent 

K.E. to Grier to receive medical care. Instead, K.E. went there to 

receive the help her IEP team and two psychologistsidentified as 

necessary to her education, including small classes, individualized 

tutoring, and life-skills instruction. Indeed, Grier, which the 

Hearing Officer found was “not a residential treatment center or a 

therapeutic boarding school,” Hearing Officer Determination at 

20, and which the district court agreed was “not primarily a school 

for kids with learning or emotional issues,” K.E. v. District of 

Columbia, 19 F. Supp. 3d at 152, offered those precise benefits. 

See, e.g., Due Process Hearing, Testimony of Learning Skills 

Teacher at 176–182; see also Munir v. Pottsville Area School 

District, 723 F.3d 423, 433 (3d Cir. 2013) (“the fact that classes 

are offered may provide evidence that the purpose of the placement 

is, in fact, educational”). The Hearing Officer found as much, 

concluding that “[K.E.] is doing well at [Grier],” “turning her 

school work in and showing improvement . . . .” Hearing Officer 

Decision at 13. The results confirm that conclusion: whereas K.E. 

had fallen behind at Wilson, she was an above-average student at 

Grier. See id. at 13. Because the placement was thus “primarily 

oriented toward enabling [K.E.] to obtain an education,” Dale M. 

ex rel. Alice M. v. Board of Education of Bradley-Bourbonnais 

High School District No. 307, 237 F.3d 813, 817 (7th Cir. 2001), 
19

it was, under the regulation, “necessary to provide a free 

appropriate public education” to her.

The Grier program was “necessary” in another significant—

indeed, dispositive—way: it was the only placement on the record 

that could have provided K.E. with an education that met her 

identified needs. DCPS neither offered an IEP by the start of the 

year nor identified—before the hearing officer, in the district court, 

or here—an alternative placement of any kind. In fact, it failed 

even to challenge Leggett’s assertion—repeated at every stage of 

the proceedings—that she considered more than a dozen schools, 

that only two were appropriate, and that one of those denied K.E. 

admission. Instead, DCPS has repeatedly insisted, against all logic, 

that the Wilson IEP itself offered the required “educational 

benefits,” despite the fact that it did not exist in any form when the 

Wilson school year began—or even until a month into the school 

year, when K.E. was already firmly ensconced at Grier. To be 

sure, had DCPS offered K.E. a spot at a less expensive day school 

in the District—or just identified one early enough in the 

process—the Grier placement may not have been “necessary.” 

Indeed, as explained above, to fulfill its obligations under the Act, 

DCPS had no obligation to offer K.E. a program as good as 

Grier’s. See Rowley, 458 U.S. at 197 n.21 (education need not be 

“potential[]maximizing”). Under Rowley, the Act required it to 

offer a program “reasonably calculated to enable [K.E.] to receive 

educational benefits.” See id. at 207. But because school officials 

offered her no such program, either in the public schools or a nonresidential private school, the Grier placement was quite plainly 

“necessary” for K.E. to obtain the educational services she was 

entitled to under IDEA. 

In this sense, Leggett’s case resembles McKenzie v. Smith in a 

way that helps her. Although we noted the distinction between 

educational and medical placements in McKenzie, we ultimately 

concluded that DCPS would have to pay for the student’s boarding 

school because there, as here, “DCPS . . . failed at every stage in 
20

the proceedings to comply with . . . its obligations under [IDEA].”

771 F.2d at 1535. And there, as here, the placement was “the only 

program supported by any evidence in the record” that could 

plausibly offer educational benefit to the child. Id. Under these 

circumstances, we concluded, DCPS had no basis for faulting his 

parents for sending him to the private residential school they 

ultimately chose. 

So too here. Because Grier was “necessary” to K.E.’s 

education and because it was “reasonably calculated to provide 

educational benefit,” it was “proper under the Act.” Under the 

statute and regulations, therefore, DCPS must reimburse Leggett 

for her costs. Although this conclusion applies most comfortably to 

Grier’s tuition, it extends to room and board as well. The 

regulation expressly requires that “the placement, including . . . 

room and board, shall be provided at no cost to the [child] or his or 

her parents or guardian” if it is “necessary” to the child’s 

education. 34 C.F.R. § 104.33(c)(3). Because K.E. could not 

possibly have attended Grier, some three hours from the District, 

without living there, the school’sresidential program was clearly

“necessary” and thus reimbursable.

Before moving on, we must address one final issue. Although 

not saying so expressly, DCPS appears to argue that even if the 

Grier School program as a whole was proper under the Act, certain 

components were not. When parts of a placement are not primarily 

oriented toward education—that is, when those parts are not the 

kind of “special education and related services” the Act 

guarantees—“the school district is not obligated to bear the total 

cost of the placement.” King v. Pine Plains Central School 

District, 918 F. Supp. 772, 778 (S.D.N.Y. 1996). Instead, it must 

cover the cost of the educational portion of the program “but need 

not fund . . . non-educational expenses.” Id. Although we have 

concluded that Grier’s educational and residential programs were 

“necessary” because DCPS had offered K.E. no alternative, the 

school system may, on remand, seek to demonstrate that specific 
21

components of the placement, such as extracurricular activities or 

the horseback riding to which DCPS so vociferously objects, were 

not “primarily oriented toward” educating K.E., Dale M., 237 

F.3d at 817, and were therefore not “necessary” under the Act. 

C.

This, then, brings us to the final question, i.e., the equities. 

Recall that IDEA allows a district court to “reduce[] or den[y]” 

reimbursement—even if the placement meets all of the Act’s other 

requirements—based “upon a . . . finding of unreasonableness with 

respect to actions taken by the parents.” 20 U.S.C. 

§ 1412(10)(C)(iii)(III); see also Carter, 510 U.S. at 16. Acting 

on that invitation, the district court found—and DCPS continues to 

argue—that Leggett behaved unreasonably in several ways: by 

“remov[ing] K.E. from Wilson three weeks before the start of the 

school year, at a time when the District had not yet failed in its 

obligations”; by placing K.E. at a school that “is not primarily a 

school for kids with learning and emotional issues”; by failing to 

challenge the IEP DCPS officials created for K.E. in September 

2012; and by choosing a school “far from the District of 

Columbia” with “an annual cost of $[58,100].” K.E. v. District of 

Columbia, 19 F. Supp. 3d at 152. In our view, and given the 

record before us, none of these actions was unreasonable. 

To begin with, we think it quite unremarkable that Leggett 

pursued a private placement for K.E. over the summer and then 

notified DCPS of the withdrawal in early August. As explained 

above, faced with school officials who were not responding to her 

phone calls or emails, who failed to provide the promised summer 

counseling, and who had yet to show any sign of producing an IEP 

in time for the school year, Leggett did what any parent would do: 

she began exploring other opportunities for her child. Even so, her 

lawyer’s letter notifying officials of the Grier placement made 

clear that she “remain[ed] open” to keeping K.E. at Wilson and 

would “seriously consider” it if DCPS provided her with an IEP. 

See Massarsky Letter. But having failed to do so by the beginning 
22

of school, DCPS left Leggett with no choice but to send her 

daughter to Grier, lest she risk the child spending another year at 

Wilson without an IEP. Nothing about the timing of Leggett’s 

actions was unreasonable.

Defending the court’s second reason, although DCPS argued 

earlier that the Grier placement was improper because it was

primarily oriented toward K.E.’s “medical, social or emotional” 

needs, see supra 19, it now faults Leggett for sending K.E. to a 

school that was not restrictive enough. See Appellee’s Br. 40 

(“Grier . . . offered little if any specialized instruction for children 

with learning or emotional disabilities.”). IDEA, however, requires 

that a child be educated in the least restrictive environment 

possible—that is, the one that provides “some educational benefit” 

and “most closely approximates” the education a disabled child 

would receive if she had no disability, Kerkam v. Superintendent, 

District of Columbia Public Schools, 931 F.2d 84, 86 (D.C. Cir. 

1991); see also 20 U.S.C. § 1412(a)(5)(A). (“to the maximum 

extent appropriate, children with disabilities . . . are educated with 

children who are not disabled”). Given this, we cannot see how the 

fact that Grier was designed to help K.E. thrive educationally in a 

normal classroom environment could possibly be a strike against 

it.

Nor can Leggett’s failure to challenge the IEP DCPS finally 

did develop—some four weeks after the school year began—have 

any bearing on the reasonableness of her actions with respect to the 

placement at Grier. After all, IDEA requires the school system to 

have an IEP in place by the start of the school year, so it cannot be 

that Leggett had to challenge an IEP that was completed in late 

September and that she did not see until sometime in October 

before she could obtain reimbursement for a placement she chose 

in August. 

Although not saying so directly, DCPS seems to imply that 

Leggett’s failure to object to the IEP was significant because K.E. 

could have returned to Wilson for the second semester of the 2012 
23

school year, after school officials had completed the allegedly 

acceptable IEP. Before even considering that possibility, however, 

we would need to know a lot more: Was the IEP in fact adequate? 

Would returning to Wilson have unduly disrupted K.E.’s 

education? Were K.E.’s tuition, room and board, and other fees 

refundable mid-year? Neither DCPS nor the record tells us 

anything about these critical questions. We thus leave it to the 

district court to give DCPS an opportunity—should it want one—

to show that Leggett’s failure to return K.E. to Wilson for the 

second half of the 2012–13 school year was unreasonable. 

Finally, DCPS insists that it was per se unreasonable for 

Leggett to choose a school that was a three-hour drive from the 

District of Columbia and cost $58,100 per year. True, “total 

reimbursement will not be appropriate if the court determines that 

the cost of the private education was unreasonable.” Carter, 510 

U.S. at 16. And $58,000 is a lot of money. But if a student 

requires special education, if school officials fail to offer it, and if 

the only private school that could serve the student’s needs—that 

is, the only school “reasonably calculated to offer educational 

benefit”—is not within commuting distance and costs $58,000 (or 

even more) then it cannot be unreasonable for the child’s parent to 

send her there. Here, because DCPS offered no IEP at Wilson, 

identified no suitable alternative, and failed even to challenge 

Leggett’s claim that Grier was the only available placement, Grier 

was “the only program supported by any evidence in the record,” 

McKenzie, 771 F.2d at 1535. It was thus not “unreasonable” for 

Leggett to send K.E. there. 

D.

To sum up, given that DCPS failed to provide K.E. a FAPE at 

Wilson or anywhere else, that the Grier placement was 

“reasonably calculated to offer educational benefit,” that the 

residential program was “necessary” to achieve that objective, and 

that DCPS has, on this record, failed to show that Leggett acted 

“unreasonabl[y],” Leggett is entitled under the Act and the 
24

regulation to reimbursement for tuition, room and board, and any 

other costs necessary to attend Grier. That said, on remand the 

district court may reduce this amount if, as explained above, the 

IEP DCPS finally generated was adequate and the school district 

can demonstrate that Leggett’s refusal to return K.E. to Wilson at 

the end of the first semester was “unreasonable[].” 20 U.S.C. 

§ 1412(10)(C)(iii)(III). (Leggett’s eligibility for reimbursement 

for the 2013–14 school year is the subject of a different case.) The 

district court may also deny reimbursement for any cost, e.g., 

extracurricular activities, horseback riding, or excessive travel, 

that it finds was either not “primarily oriented toward enabling 

[K.E.] to obtain an education,” Dale M., 237 F.3d at 817—that is, 

not “necessary” within the meaning of the regulation—or 

otherwise “unreasonable,” Carter, 510 U.S. at 16 (“Courts 

fashioning discretionary equitable relief under IDEA must 

consider all relevant factors, including the appropriate and 

reasonable level of reimbursement that should be required. Total 

reimbursement will not be appropriate if the court determines that 

the cost of the private education was unreasonable.”).

III.

We understand that requiring a school system to reimburse 

parents for the costs of expensive private boarding schools diverts 

funds away from public education. But where, as here, the school 

district has failed to provide a free appropriate public education in 

either a public or a non-residential private school, where the 

residential school the parent selected is “reasonably calculated to 

provide educational benefits,” where the residential component of 

that school is “necessary” for the child to attend that school, and 

where the school system has not shown that the parent acted 

unreasonably, IDEA requiresreimbursement for tuition, room and 

board, and other related educational expenses—even if costly. 

Moreover, and contrary to the district court’s fear that if Leggett 

prevails parents will have “carte blanche” to choose an expensive 

private school, K.E. v. District of Columbia, 19 F. Supp. 3d at 
25

151, the Supreme Court emphasized in Carter that under IDEA, 

school officials have complete control over the situation, i.e., to 

avoid burdensome reimbursement obligations, they need only offer 

each child a free appropriate public education, either in a public 

school or in a private school the district chooses. Carter, 510 U.S. 

at 15–16. This, according to the Court, “is IDEA’s mandate, and 

school officials who conform to it need not worry about 

reimbursement claims.” Id. at 15. Like any other public school 

system, then, DCPS can avoid cases like this one simply by 

ensuring that its employees understand and fulfill the school 

system’s obligations under IDEA—to provide a FAPE and to do 

so in a timely manner—and that they answer the phone when it 

rings. 

For the foregoing reasons, we reverse and remand for further 

proceedings consistent with this opinion.

So ordered.