Reid-Witt v. District of ColumbiaReid-Witt v. District of Columbia
MEMORANDUM OPINION
C.W. was a student at Washington‘s Benjamin Banneker High School before her disabilities interfered with her studies. See generally Am. Compl., ECF No. 7. She was granted various accommodations but her multiple requests for special-education services were denied. See generally id. Unable to maintain consistent attendance, C.W. fell below the requirements for continued enrollment and the school asked her to withdraw. See generally id. After exhausting administrative remedies, C.W.‘s mother, Karla Reid-Witt, filed this suit alleging a violation of the
I. Background
Banneker is a selective public high school; among other requirements, students must maintain a minimum grade-point average and a record of community service to remain enrolled.1 Am. Compl. ¶ 74. C.W. entered Banneker in the ninth grade during the 2016-17 school year. Id. ¶ 13. She suffers from anxiety and depression, which cause difficulties with “[self-]organization, time management, completing assignments, memory, and focus,” as well as at least two instances of suicidal ideation. Id. ¶¶ 14-15, 47-49.
Before C.W.‘s tenth-grade year commenced, DCPS formally denied Reid-Witt‘s request for special-education services. Id. ¶¶ 32-34. It also rejected a request to use an assistive electronic device in class. Id. ¶¶ 37-40; see also Section 504 Plan of Aug. 31, 2017, ECF No. 8-2; Section 504 Plan of Sep. 5, 2017, ECF No. 8-3. C.W. missed 67 days of school during the tenth grade, including one incident during which she ran away from school for the day and another instance of suicidal ideation that required hospitalization. Am. Compl. ¶¶ 42-49. DCPS kept the accommodations in place but maintained its position that C.W. was ineligible for special-education services. Id. ¶¶ 50-53.
The Parties reached an impasse during the eleventh-grade year. C.W. attended school only one day that year, and DCPS repeatedly rejected Reid-Witt‘s requests for special-education services. Id. ¶¶ 54-72; see also Section 504 Plan of Aug. 27, 2018, ECF No. 8-4. The school informed Reid-Witt that C.W.‘s grade-point average and record of community-service hours had fallen below the acceptable minimums and asked her to transfer to one of the District‘s non-selective high schools. Am. Compl. ¶¶ 73-78; Def.‘s Ltr. of Feb. 25, 2019, ECF No. 8-5. Reid-Witt decided instead to homeschool C.W. for the 2019-20 school year but has been largely unsuccessful because of C.W.‘s disabilities. Id. ¶¶ 85-89.
Reid-Witt filed an administrative complaint alleging both the denial of a Free Appropriate Public Education and disability discrimination. Id. ¶ 1; see also
II. Legal Standard
Ordinarily, “[a] pleading that states a claim for relief must contain . . . a short
III. Analysis
Reid-Witt‘s claims fall into three distinct categories even though they arise out of the same events. In Count I, Reid-Witt challenges the Hearing Officer‘s administrative determination that C.W. was ineligible for special-education services under the IDEA. Am. Compl. ¶¶ 90-100. The IDEA is the primary vehicle for such claims and “is of particular importance in this case.” Holmes-Ramsey v. District of Columbia, 747 F. Supp. 2d 32, 35 (D.D.C. 2010). One of the Act‘s purposes is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”
The IDEA and its implementing regulations establish a comprehensive administrative process for adjudicating disputes, including the ability to file a due-process complaint and obtain an adjudication from a Hearing Officer.
Reid-Witt‘s other two sets of claims allege disability discrimination more generally. The IDEA does not preclude a student from raising additional claims under other statutes so long as the student first exhausts her administrative remedies under the IDEA.
Buried within those two counts, however, is a third theory of liability. Reid-Witt alleges that Banneker had no special-education students during the last few years and suggests that that fact implies that Banneker does not offer special education at all, calling into question whether DCPS‘s denials of Reid-Witt‘s requests were genuine. Am. Compl. ¶¶ 79-81. She therefore alleges that the District has an illegal policy-or-practice of refusing to fund special-education programs at its selective high schools, denying such services to students at those schools under the pretext that the students do not qualify for them, and funneling the students to less competitive high schools where such services are available. Am. Compl. ¶¶ 170-75; 251-56.
“While the [IDEA] addresses incorrect or erroneous special education treatment, the ADA[, Rehabilitation Act, and DCHRA] address[] discrimination against the disabled student.” Jackson v. District of Columbia, 826 F. Supp. 2d 109, 126 (D.D.C. 2011). Because the IDEA‘s administrative process is the primary vehicle for adjudicating educational disputes, courts require plaintiffs to show “something more than a mere failure to provide the ‘free and appropriate education’ required by the [IDEA]” to state a claim under the other statutes. Walker, 969 F. Supp. at 797 (quoting Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1580 (D.C. Cir. 1984)). Here, the District argues that Reid-Witt fails to make that showing and moves to dismiss Counts II and III in their entirety. See generally Mot.
A. As-Applied Disability Discrimination Claims
1. Count II: Rehabilitation Act
a. Legal Standard for Evaluating Alleged Discrimination
As explained above, to state a Rehabilitation Act claim in the educational context, Reid-Witt must satisfy the general criteria for disability discrimination and must also allege “something more than a mere failure to provide the ‘free appropriate education’ required by [the IDEA].” Lunceford, 745 F.2d at 1580 (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir. 1982)). In other words, “[she] must show that . . . [C.W.] was discriminated against ‘solely by reason of [her] handicap.‘” Walker, 969 F. Supp. at 797 (quoting
The D.C. Circuit has never squarely adopted that standard, but in Lunceford (which dealt with claims under the Rehabilitation Act and the Education for All Handicapped Children Act), it quoted the Eighth Circuit‘s decision in Monahan for the general proposition that the Rehabilitation Act requires more than just a showing that the school‘s response was inadequate. See Lunceford, 745 F.2d at 1580 (quoting Monahan, 687 F.2d at 1170). Judge Friedman later looked to Monahan for more guidance and adopted its “bad faith or gross misjudgment” standard. See Walker, 969 F. Supp. at 797 (quoting Monahan, 687 F.2d at 1170-71). All other judges in this District who have faced the question seem to have followed suit. See, e.g., R.S. v. District of Columbia, 292 F. Supp. 2d 23, 28 (D.D.C. 2003) (Huvelle, J.); Henneghan v. DCPS, 597 F. Supp. 2d 34, 37 (D.D.C. 2009) (Kennedy, J.); Holmes-Ramsey, 747 F. Supp. 2d at 38-39 (Kollar-Kotelly, J.); Alston v. District of Columbia, 770 F. Supp. 2d 289, 298 (D.D.C. 2011) (Urbina, J.); Jackson, 826 F. Supp. 2d at 122 (Rothstein, J.); B.D. v. District of Columbia, 66 F. Supp. 3d 75, 80 (D.D.C. 2014) (Leon, J.); DL v. District of Columbia, 109 F. Supp. 3d 12, 23-24 (D.D.C. 2015) (Lamberth, J.).
Reid-Witt nevertheless argues for a different standard. She contends that, rather than “bad faith or gross misjudgment,” she should only have to allege “deliberate indifference.” Opp‘n at 5. She relies primarily on Pierce for the proposition that “the Rehabilitation Act and ADA are targeted to address more subtle forms of discrimination than merely obviously exclusionary conduct, and it is consistent with these
To be sure, some courts elsewhere have applied the deliberate-indifference standard to students’ claims; Pierce cited one such decision. See 128 F. Supp. 3d at 278 (citing S.H. ex rel Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013)); see also Opp‘n at 6-7 (citing H. v. Montgomery Cty. Bd. of Educ., 784 F. Supp. 2d 1247, 1267-68 (M.D. Ala. 2011)). But Pierce had no occasion to address the educational context and did not cite any cases in this jurisdiction applying the tougher standard. See 128 F. Supp. 3d at 278-79. Likewise, S.H. took its standard from non-school Rehabilitation Act decisions without considering the interplay with the IDEA, 729 F.3d at 262-63, and H. only used the deliberate-indifference standard because the parties there argued that it applied, so the court assumed that it was relevant without deciding the question, 784 F. Supp. 2d at 1261.
Perhaps realizing that her citations do not sufficiently explain why the Court should depart from the standard applied by other judges in this district, Reid-Witt argues that “[d]eliberate indifference [is] just as bad if not worse than gross misconduct or bad faith.” Opp‘n at 6. She relies heavily on a magistrate judge‘s unpublished opinion containing a long discussion on the relationship between the two standards and how some conduct may satisfy either one. See Opp‘n at 6 (citing Hamilton Sch. Dist. v. Doe, No. 04-C-876, 2005 WL 3240597 (E.D. Wis. Nov. 29, 2005)). There‘s some merit to that argument; a plaintiff fails to show bad faith or gross misjudgment if the “officials involved have exercised professional judgment[] in such a way as not to depart grossly from accepted standards among educational professionals.” Walker v. District of Columbia, 157 F. Supp. 2d 11, 35-36 (D.D.C. 2001) (quoting Monahan, 687 F.2d at 1171). That requirement is similar to the deliberate-indifference standard prisoners must meet in Eighth Amendment claims alleging insufficient medical attention. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). “[I]n those cases where unnecessary risk may be imperceptible to a lay person[,] . . . a medical professional‘s treatment decision must be such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (en banc) (internal quotation omitted).
It‘s possible, therefore, that deliberate indifference might be evidence of bad faith or gross misjudgment, cf. T.W. ex rel Wilson v. Sch. Bd. of Seminole Cty., 610 F.3d 588, 604-05 (11th Cir. 2010) (distinguishing between the two standards and declining to take a position), but Reid-Witt has not given the Court any reason to depart from the more stringent standard plaintiffs must meet to state a Rehabilitation Act claim in conjunction with an IDEA claim.
b. Reid-Witt‘s Allegations
For Count II to survive the Motion, Reid-Witt must therefore allege both that
In other cases, courts have dismissed Rehabilitation Act claims because they usually “amount to garden variety IDEA violations and . . . contain[] no indication that the[] alleged violations occurred due to gross misjudgment.” Holmes-Ramsey, 747 F. Supp. 2d at 39.3 In Walker, “conduct including misdiagnosing a student‘s disability, failing to provide an [Individual Education Plan] for several school years and failing to provide an appropriate placement for five years collectively did not meet th[e] standard.” Alston, 770 F. Supp. 2d at 300 (citing Walker, 157 F. Supp. 2d at 13-14). Other cases involved similar facts. See id. (collecting cases).
Here, Reid-Witt cannot plausibly allege that the District was completely indifferent to C.W.‘s disabilities. The school promulgated four separate accommodation plans allowing C.W.
extra time to turn in assignments, the ability to complete and turn in work virtually, alternative testing times and locations, a pass to leave class at any time to see a school counselor, periodic psychological services, automatic distribution of class lecture notes or PowerPoint presentations, preferential seating in classrooms, increased progress monitoring and reporting, the ability to accumulate community service hours under alternative arrangements, and special conditions during standardized testing. See, e.g., Section 504 Plan of Aug. 31, 2017. Those steps surely do not amount to complete indifference to C.W.‘s circumstances.
Reid-Witt instead points to the following events as indications of the District‘s bad faith: (1) the failure to grant accommodations recommended by C.W.‘s physician, including home study, Am. Compl. ¶¶ 124, 130, 132, 147-50; (2) the failure to augment accommodations when they proved ineffective over time, id. ¶¶ 137-39, 143-44, 146, 154-58, 162-65; and (3) the District‘s decision to transfer C.W. from Banneker to a less competitive high school rather than accommodate her disability, id. ¶¶ 166-75. But the cases on which she relies in arguing that she has adequately alleged bad faith are distinguishable. In H., the court found that a failure to update a student‘s section 504 plan three years in a row could constitute deliberate indifference, but it made no observations about whether that same conduct may have constituted bad faith or gross misjudgment. See Opp‘n at 6 (citing H., 784 F. Supp. 2d at 1267-68). Likewise, in K.D. ex rel J.D. v. Starr, 55 F. Supp. 3d 782 (D. Md. 2014), an unexplained rescission of an accommodation recommended by the child‘s doctor plus a consistent failure to implement accommodations the school had already approved in a Section 504 Plan stated a claim for bad faith or gross misjudgment. See Opp‘n at 6-7 (citing 55 F. Supp. 3d 782). Reid-Witt has not alleged any such conduct here.
Allegations that the District failed to grant specific accommodations and failed to update accommodations over time are central to Reid-Witt‘s claim. Am. Compl. ¶¶ 124, 146-47, 162. But those allegations amount to “garden variety IDEA violations” and are not cognizable under the Rehabilitation Act. Holmes-Ramsey, 747 F. Supp. 2d at 39. Reasonable minds can disagree about which accommodations are appropriate (or even feasible), and the Amended Complaint‘s own allegations state that the District at least engaged with those questions, even if the answers may not have been optimal. Reid-Witt has not stated a claim for failure to accommodate C.W.‘s disabilities under the Rehabilitation Act.
2. Count III: ADA & DCHRA
The as-applied portion of Count III repeats Count II‘s allegations under different statutory causes of action. Am. Compl. ¶¶ 176-250. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
The Parties argue at length over whether C.W. is a “qualified individual” and whether the denial of particular accommodations she requested—to include special-education services—was done “by reason of [her] disability.”
The ADA‘s standard is slightly less strict than the Rehabilitation Act‘s standard because it does not require that
B. Policy-or-Practice Claim
Beneath Reid-Witt‘s allegations of specific failures to accommodate C.W.‘s disabilities, however, lurks another claim that is different in kind. Reid-Witt argues, and the District concedes, that C.W. is a D.C. resident and therefore entitled to a free, public education. See Opp‘n at 9 (citing
The District gives two responses. It first argues that C.W.‘s request for home instruction was unreasonable as a matter of law because it sought “‘to expand the substantive scope of a program or benefit,’ which is not required under the ADA or [the Rehabilitation Act.]” Reply at 12 (quoting Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1267 (D.C. Cir. 2008)). Second, the District contends that, even with the many accommodations it granted her, C.W. still failed to maintain the minimum grade-point average or accumulate enough hours of community service to continue her enrollment at Banneker and so was unqualified to attend Banneker with or without special-education services. Reply at 9.
The District‘s first argument seems to respond directly to Reid-Witt‘s allegations that Banneker High School offers no special-education services whatsoever. According to the Amended Complaint, Banneker “does not have any students with [Individual Education Plans]” under the IDEA and “does not have any special education teachers . . . [or] administrators.” Am. Compl. ¶¶ 172-74; 253-55. Based on that information, Reid-Witt alleges that the school repeatedly denied her requests for special education not because C.W. did not qualify for them, as the school insisted, but because Banneker lacked the capability to provide them. Opp‘n at 16-17. She alleges that “DCPS has an unspoken policy and practice to exclude students from Banneker who require [Individual Education Plans],” Am. Compl. ¶¶ 171, 252, instead diverting them to “one of the District‘s allegedly ‘easier typical’ high schools” where they may obtain less prestigious and less rigorous individualized instruction, id. ¶¶ 170, 251. Relying on a “Dear Colleague” Letter from the Department of Education, Reid-Witt argues that such a policy violates the Rehabilitation Act and the ADA. See Opp‘n at 17 (citing Asst. Sec‘y Stephanie J. Monroe‘s Ltr. of Dec. 26, 2007, ECF No. 10-1).
Taken together, Reid-Witt essentially alleges that DCPS has a policy or practice of excluding all disabled students from its elite high schools by failing to fund special-education services at those schools. Reid-Witt therefore contends that Banneker‘s determination that C.W. was ineligible for those services was mere pretext; that C.W. could have maintained her grades and performed community service if she had received necessary special-education services; and that DCPS funneled C.W. to a less prestigious school to avoid having to spend money on special-education programs at Banneker. Am. Compl. ¶¶ 165-75, 245-56.
The District‘s arguments in response to that claim are unavailing. It first argues that the statutes do not require schools to offer home instruction because such accommodations are unreasonable as a matter of law. Mot. at 14-15. In any case, the District continues, the fact that C.W. was entitled to a free, public education does not mean that she had a right to special education at Banneker. Reply at 9. In the District‘s words, it “has not, of course, barred C.W. from attending every public school in the District on the basis of her disability“—just the prestigious and academically rigorous schools. Id.
To be sure, “where the plaintiff[] seek[s] to expand the substantive scope of a [government] program . . ., they likely seek a fundamental alteration to the existing program . . . and have not been denied meaningful access.” Mot. at 14 (quoting Am. Council of the Blind, 525 F.3d at 1267). But American Council of the Blind dealt with summary judgment, see 525 F.3d at 1260, and the Court cannot make a factual determination about whether it is overly burdensome for DCPS to offer special-education services at Banneker on a motion to dismiss. Moreover, at this early stage, the Court cannot determine whether, as a matter of law, the District is required to offer special education at every school or whether it may consolidate students with Individual Education Plans at a few schools. The Parties have not meaningfully briefed that issue and, in light of the Department of Education‘s letter and the D.C. Auditor‘s Report that Plaintiff attached, it is not clear that the District would prevail on the question.
Finally, the District contends that Reid-Witt has not successfully alleged that C.W. was qualified for special education in the first place, so she cannot credibly allege that DCPS denied her any benefit to which she was entitled whether or not such a
It may be the case that, even with an Individual Education Plan, C.W. would not have been able to succeed at Banneker. As the District points out, Reid-Witt admits that C.W. did not complete a private homeschooling curriculum during her senior year, so it is questionable whether she would have done any better with home instruction provided by DCPS. See Mot. at 15 n.7. The Court cannot answer those questions on a motion to dismiss, however, especially when the question of C.W.‘s eligibility for special education remains a live issue under Count I. The Hearing Officer answered that question in the negative, Am. Compl. ¶¶ 94-95, but the Court has not yet upheld or overturned that decision. Smith and Vergara were both resolved on summary judgment with the benefit of fully developed evidentiary records, so their applicability here is limited. See Smith, 2018 WL 4680208 at *1; Vergara, 2019 WL 4199911 at *1.
If the Court eventually finds that C.W. was not eligible under the IDEA, it is doubtful that she will be able to sustain a claim that the District‘s alleged policy-or-practice of denying services at Banneker led to any discrimination against her because of her disability. At this early stage, however, the Court must take the Amended Complaint‘s allegations as true. 333 F.3d at 165. And assuming that C.W. was, in fact, eligible for an Individual Education Plan, and in light of the supporting documentation Reid-Witt has provided, it is plausible that the District (1) has a policy or practice “to exclude [such] students from Banneker;” (2) following that policy, denied Reid-Witt‘s requests for additional services under the pretext that C.W. was ineligible for them, and (3) counseled her out of the school so as not to have to fund special education at Banneker. Am. Compl. ¶¶ 170-75; 251-56.
That claim plausibly alleges bad faith or gross misjudgment on the part of DCPS. In Douglass, the plaintiff alleged not only that DCPS “failed to fully implement” the student‘s Individual Education Plan but also that DCPS “discriminated against Plaintiff solely based upon his disability because it provided only regular education students with the opportunity to earn [graduation credits] and work toward a regular high school diploma, but did not provide the same opportunity to special education students.” 605 F. Supp. 2d at 168 (internal quotation omitted). The Court held that Douglass had stated a claim under the Rehabilitation Act because such a policy facially discriminated against special-education students.4 Id. Here,
found that she was ineligible, Am. Compl. ¶¶ 101-69; 176-250, but also that DCPS has a policy or practice of denying such requests without seriously investigating whether a student is eligible because Banneker lacks the capability to provide them, id. ¶¶ 170-75; 251-56. That sort of exclusion—removing a student from an elite school because she needs special education while telling her that she does not qualify for such services—may constitute discrimination solely by reason of C.W.‘s disability. Such allegations, if proven, might constitute bad faith or gross mismanagement and therefore state a claim for disability discrimination under the Rehabilitation Act, the ADA, and the DCHRA. Douglass, 605 F. Supp. 2d at 168.
IV. Conclusion
To the extent that Reid-Witt alleges that the District improperly evaluated C.W.‘s educational needs, provided insufficient accommodations, or was less responsive to Reid-Witt‘s communications than she would have liked, she may obtain relief through her IDEA claim. Reid-Witt has not alleged additional facts that bring her claims within the scope of the Rehabilitation Act, ADA, or DCHRA, and Counts II and III are dismissed in as far as they make such allegations. The portions of Counts II and III alleging that the District has an illegal policy or practice of excluding students requiring special education from its selective high schools, however, state a claim for relief and may proceed. An Order will be issued contemporaneously with this Memorandum Opinion.
DATE: September 3, 2020
CARL J. NICHOLS
United States District Judge