Opinion
Case No. 1:23-cv-00070 (TNM)
2023-04-06
Margda PIERRE-NOEL, ON BEHALF OF her minor child K.N., Plaintiff, v. BRIDGES PUBLIC CHARTER SCHOOL, et al., Defendants.
Charles A. Sibert, Dara A. Gold, Moran & Associates, Washington, DC, for Plaintiff. Lauren E. Baum, Law Offices of Lauren E. Baum, P.C., Washington, DC, for Defendant Bridges Public Charter School. Veronica A. Porter, Office of the Attorney General for D.C., Washington, DC, for Defendant District of Columbia.
Charles A. Sibert, Dara A. Gold, Moran & Associates, Washington, DC, for Plaintiff.
Lauren E. Baum, Law Offices of Lauren E. Baum, P.C., Washington, DC, for Defendant Bridges Public Charter School.
Veronica A. Porter, Office of the Attorney General for D.C., Washington, DC, for Defendant District of Columbia.
MEMORANDUM OPINION
TREVOR N. McFADDEN, United States District Judge
This case is about who must ensure that a disabled child reaches his school bus. Margda Pierre-Noel sued Bridges Public Charter School and the District of Columbia under the Individuals with Disabilities Education Act ("IDEA") for failing to provide a free and appropriate public education and related services for her minor son, K.N. Pierre-Noel seeks review of a hearing officer's decision that she is responsible for getting K.N. to and from the school bus. She also seeks an order that his school denied him a free and appropriate public education under the IDEA for failing to provide in-person support while he learned from home and for failing to provide an in-school nurse. The school agrees with certain aspects of the hearing officer's decision, but disagrees with others—including that it failed to provide an appropriate education. The District agrees with the hearing officer's decision that it need not carry K.N. to the school bus.
Before the Court are cross-motions for summary judgment from Pierre-Noel, the school, and the District. The Court will grant the District summary judgment on the transportation claim because it finds that the IDEA does not mandate the service Pierre-Noel seeks. But the Court will grant Pierre-Noel summary judgment on her free and appropriate public education claim because the school did not plan adequate support for K.N. to learn from home. Finally, the Court will grant the school's motion as to the issue of failing to have a nurse present in school because K.N. was learning from home at the time. Also, Pierre-Noel has not shown injury or redressability on this claim. In sum, the Court will grant the District's motion in full, and it will grant in part and deny in part the other two motions.
I.
A.
The IDEA offers states and the District of Columbia federal funding to provide a "free appropriate public education" ("FAPE") to disabled children. 20 U.S.C. § 1412(a)(1)(A). A FAPE includes both "special education and related services." Id. § 1401(9). "Special education" is "specially designed instruction ... to meet the unique needs of a child with a disability," and "related services" are those "required to assist a child ... to benefit from" that instruction. Id. § 1401(26), (29). The IDEA defines "related services" as
transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation ...
[and] counseling services, including rehabilitation counseling, orientation and mobility services ... as may be required to assist a child with a disability to benefit from special education[.]
Id. § 1401(26)(A).
The meaning of "transportation" is key to this case. The Act's implementing regulations note that "transportation" "includes travel to and from school and between schools" and "specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability." 34 C.F.R. § 300.34(c)(16).
To ensure that a child receives a FAPE, special education and related services must be provided "in conformity with the [child's] individualized education program," or IEP. 20 U.S.C. § 1401(9)(D). An IEP is the "centerpiece of the statute's education delivery system[.]" Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). "It is through the IEP that the free appropriate public education required by the Act is tailored to the unique needs of a particular child." Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 401, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017) (cleaned up). The IEP must be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 399, 137 S.Ct. 988. A team of interested individuals—including the child's parents and teachers—draft his IEP. See 20 U.S.C. § 1412(a)(4), 1414(d). Each IEP must describe the "special education and related services ... that will be provided" to help the child "advance appropriately." Id. § 1414(d)(1).
The IDEA provides that "[t]o the maximum extent appropriate[,]" disabled children should be "educated with children who are not disabled." Id. § 1412(a)(5). This means that removal from the "regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." Id. To further this statutory instruction, IEPs specify a child's "least restrictive environment"—the location and services a student should receive. Id.; see also 34 C.F.R. §§ 300.114(a), 300.115-16.
B.
K.N. is a first grader eligible for special education and related services under the IDEA. See Administrative Record ("AR") at 1537. He is medically fragile, non-verbal, wheelchair bound, and weighs about 40 pounds. See id. at 1444, 1533.
The Administrative Record can be found at ECF Nos. 18-20. It is sealed to protect the personal identifying information of K.N. The Court will cite all references to the Administrative Record as "AR at [page]," except for the Hearing Officer's Determination, which the Court will cite as "HOD at [page]," and K.N.'s July IEP, which the Court will cite as "IEP at [page]," to reflect their internal pagination. The hearing officer's determination is available on the public docket, see ECF No. 1-1, as is a redacted version of K.N.'s IEP, see ECF No. 4-3.
During the COVID-19 pandemic, K.N. worked virtually with a special education teacher. See id. at 738; see also Hr'g Tr. at 55. Pierre-Noel provided the at-home support he needed to learn. See AR at 723, 1530. As the 2022 school year drew to a close, Pierre-Noel and school staff convened in May to discuss his IEP. See id. at 722-37. All agreed that K.N. could return to school in person in September 2022. See id. at 13, 332. At that time, he would "resume 22.5 hours of specialized instruction hours ... outside of the general education setting with a dedicated nurse aide"
inside the school building. Id. at 738. The May IEP included a contingency provision: "[i]f [K.N.] is required to remain home for an extended period due to medical needs, [he] will receive homebound instruction and the team will develop a plan for continuation of services." Id. The IEP also states that no nurse aide will be provided if K.N. attends virtually. See id.
The transportation section of K.N.'s May IEP explains that he requires a single transport bus and a nurse on the bus. See id. at 744. K.N.'s apartment building is not handicap-accessible, so getting him to the bus involves traversing 14 to 20 steps. See id. at 1571; 1645. Pierre-Noel suffers from a medical condition that prevents her from carrying K.N. and his wheelchair down the steps. See id. at 1645. While her husband sometimes carries K.N. out of the apartment, he is only available on Thursdays and Fridays. See id. at 1573. So she asked for a dedicated aide to assist K.N. from the threshold of the apartment to the bus and vice versa. See id. at 1115. According to Pierre-Noel, the aide must place K.N.'s wheelchair at the bottom of a staircase, hoist K.N. over a shoulder, and walk up and down the steps. See id. at 1573, 1645. In the past, home care nurses had done this, but K.N. is now too heavy for them. See id. at 1533.
There are two ways to reach Pierre-Noel's apartment door. Entering through the front door requires climbing 14 exterior steps and descending about six interior steps. See Hr'g Tr. at 40. Entering through the back door requires climbing 14 interior steps. See id.; see also https://tinyurl.com/yun8fee9 (video tour of Pierre-Noel's building).
Even in an emergency, home care nurses can "decline to lift and carry [K.N.] up and down the stairs," and instead place him in the "safest part of the apartment" before calling 911. Hr'g Tr. at 43. Typically, if Pierre-Noel needs to get K.N. out of the apartment herself, she plans around her husband's schedule. See AR at 1573.
The school contacted the District, which transports disabled students. See id. at 1473. Its Special Education Transportation Policy notes that the District "shall provide special education transportation services to students with disabilities when transportation is appropriately identified and documented on an IEP as a related service under the IDEA." Id. at 1039. That policy specifies that District personnel "will utilize lifts, ramps, or other mechanized equipment to assist students with wheelchairs." Id. at 1045. But it explains that the District is "not responsible for providing physical assistance to student passengers other than providing occasional non-intrusive assistance that does not require lifting or carrying the student." Id. If the District determines that it cannot transport a child, the transportation policy instructs the school to reconvene the IEP team. See id. In the meantime, the school is "responsible for providing alternative instructional options." Id.
The District provides transportation through its Office of the State Superintendent of Education (OSSE). For simplicity, the Court will refer to OSSE as the District. Similarly, under the IDEA the District is the "State Educational Agency," or SEA, and the school is the "Local Educational Agency," or LEA. In lieu of those acronyms, the Court simply uses "the District" to refer to the District of Columbia and "the school" to refer to Bridges.
After the school reached out, a District investigator visited Pierre-Noel at her apartment in July 2022. See id. at 1128. He inspected the building and stairs and told her that District employees are not permitted to enter the apartment building or lift and carry K.N. See id.
Undeterred, Pierre-Noel and the school amended K.N.'s IEP the next day to mandate those precise services. See IEP at 24, ECF No. 4-3. K.N.'s July IEP thus states that he "requires assistance to get from
his apartment unit door to the bus and from the bus to his apartment unit door. This assistance includes being carried up and down stairs inside the apartment building as well as outside the apartment building." Id. The school included this language in the IEP to "test whether [the District's] refusal to provide the support was legally sound." Bridges Cross-Mot. for Summ. J. and Opp'n to Pl.'s Mot. for Summ. J. (School MSJ) at 14, ECF No. 25; see also AR P-2 at 24:00-24:16 (asking parent for information about transportation to see "what we can do with the IEP to try to push [the District]").
K.N. was set to resume in-person class on September 20, 2022. See AR at 1507. And the school retained a dedicated nurse for him to begin that same day. See id. at 1568-69; see also Hr'g Tr. at 60. But the District maintained that it could not transport K.N. because of the carrying and lifting required. See AR at 621. Rather, it "can only escort a student from/to the outermost door of a house or building." Id. It is undisputed that K.N. could not get to school on September 20. See, e.g., id. at 1538. That same day, K.N.'s in-school nurse abruptly quit. See id. at 1568-69; see also Hr'g Tr. at 60. So the school found another nurse by October 4. See AR at 960, 1541; see also Hr'g Tr. at 60-61. But because K.N. still could not get to school, the school did not keep that nurse. See AR at 1569-70.
From July 2022 to the present, K.N.'s July IEP has remained in effect. It states that "[t]he Dedicated Nurse Aide will be removed from this IEP as [K.N.] attends virtually. The Dedicated Nurse Aide will be added back to the IEP upon [K.N.] resuming school in-person." IEP at 21. Because K.N. has yet to return to school in person, no nurse has been hired. See Hr'g Tr. at 61.
Recall that K.N.'s mother supported him during virtual learning last year. See AR at 723, 1530. During the July IEP meeting, she asked whether the school could provide an in-home aide if K.N. had to learn virtually again that fall. See AR P-22 at 9:10-10:20. The school responded that it was definitely something they could discuss if K.N. cannot get to school. See id. Pierre-Noel renewed her request for an in-home aide a month later. See AR at 354. The school responded similarly: that they "can certainly consider the need for an aide if [K.N.] is not able to start the school year in person." Id. After K.N.'s transportation fell through, Pierre-Noel again requested a dedicated aide to assist with virtual learning. See id. at 361. Eventually, in October, the IEP team reconvened to discuss K.N.'s virtual learning. At that point, the school provided at-home support for him, including a one-to-one tutor and a vision specialist. See id. at 1604. But the team did not amend his IEP to reflect those services. See Hr'g Tr. at 50-51; see also Pl. MSJ at 42.
By then, it was too late. Pierre-Noel had filed an administrative due process complaint. See AR at 54-69. She argued that the District and the school denied K.N. a FAPE by failing to implement the transportation accommodations in his July IEP. See id. at 67. And Pierre-Noel claimed that the school denied K.N. a FAPE by failing to create an appropriate IEP in July 2022 providing an in-home aide if K.N. cannot return to school. See id. Lastly, Pierre-Noel argued that the school failed to implement the nursing services K.N. required in school. See id.
The hearing officer gave each party a partial victory. First, as to transportation, he analyzed cases discussing the meaning of "transportation" as a "related service" under the IDEA. Hr'g Officer Determination (HOD) at 15-17. Ultimately, he decided
that "there is no caselaw authorizing a hearing officer to order [District] personnel to lift and carry students inside their homes or apartment buildings." Id. at 19. Still, he ordered the District to "offer [K.N.] bus transportation with a dedicated nurse and assistance to the front door of his apartment building." Id. at 22.
Second, as to whether the July IEP was proper, the officer determined that Pierre-Noel had shown inadequacy. See id. at 11. He reasoned that the school knew before it created the July IEP that the District was not going to lift or carry K.N. to allow him to reach the bus. See id. Thus, "[t]here was ample time [before] the beginning of the school year to reconvene the IEP meeting and adopt the virtual learning plan that the parties finally agreed to" in October 2022, which provided in-person support. Id.
Third, as to the school's alleged failure to provide in-school nursing services, the officer found that the school has an obligation to provide nursing services. See id. at 12. But he found that because the District was not providing transportation, "those services could not have been provided." Id. Therefore, he found that Pierre-Noel failed to meet her burden. See id.
This lawsuit followed. Before the Court are Pierre-Noel's motion for summary judgment and cross-motions from the school and the District. See Pl.'s Mot. for Summ. J. (Pl. MSJ), ECF No. 22; School MSJ; D.C. Cross-Mot. for Summ. J. and Opp'n to Pl.'s Mot. for Summ. J. (District MSJ), ECF No. 26. Instead of litigating a preliminary injunction, the parties agreed to an expedited briefing schedule on the merits. The Court held a hearing during which it allowed Pierre-Noel to present a witness from a private transportation company. All motions are ripe for decision.
II.
To prevail on a motion for summary judgment, a party must show that "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. And a disputed fact is material if it could alter the outcome of the suit. See id.
The IDEA permits "any party aggrieved by the findings and decision" of an administrative hearing officer to sue in federal court. 20 U.S.C. § 1415(i)(2). The reviewing court "shall receive the records of the administrative proceedings, [] hear additional evidence at the request of a party, and ... grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). The Court gives "due weight" to the hearing officer's determinations. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). But it affords "less deference than is conventional in administrative proceedings." Z.B. v. District of Columbia, 888 F.3d 515, 523 (D.C. Cir. 2018). And a decision "without reasoned and specific findings deserves little deference." Id.
This Court also has an independent duty to ensure that it has subject-matter jurisdiction. See Kaplan v. Cent. Bank of Islamic Repub. of Iran, 896 F.3d 501, 509 (D.C. Cir. 2018). If a plaintiff lacks standing to press a claim, the Court must dismiss it. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
III.
The Court first addresses Pierre-Noel's transportation claim. Next, it turns to
whether the July IEP was appropriate. Finally, it assesses whether the school failed to implement K.N.'s IEP when it did not have a nurse present in school while he was learning at home.
A.
Pierre-Noel's primary argument is that the hearing officer erred in holding that the District need not lift or carry K.N. to the bus. See Pl. MSJ at 13-38. The District disagrees. See District MSJ at 9-16.
Recall that after the District inspected K.N.'s residence and told Pierre-Noel it could not lift or carry him, K.N.'s IEP team included a condition that it must do just that. See AR at 1128; see also School MSJ at 14. The hearing officer agreed with the District, finding that he lacked authority to order such a service under the IDEA. See HOD at 19. But the officer also ordered the District to "immediately offer [K.N.] bus transportation to the front door of [his] apartment building." Id. at 22. Based on the Court's review of the video evidence, delivery of K.N. to the front door of the building requires climbing 14 steps. See supra note 2; see also Hr'g Tr. at 40 (confirming this point). The officer's holding thus cannot be squared with his remedy. See Hr'g Tr. at 41 (Plaintiff agrees that this is a "contradictory" ruling because ... "[t]here is no way to avoid those external steps from the ... front of the building to [the] curb."); see also id. at 54 (school explaining that every party in the case was confused by the hearing officer's rationales). Perhaps the hearing officer meant to order the District to transport K.N. to the back door of the apartment building, which would not involve traversing steps. But given the logical inconsistency in the hearing officer's decision, the Court will afford him less deference than normal on this issue. See Z.B., 888 F.3d at 523.
Pierre-Noel criticizes the hearing officer for finding that he "did not have authority" to order the District to carry K.N. up and down the stairs and contends that his decision could be reversed on this basis alone. See Pl. MSJ at 14-15. The Court agrees with the general assertion that the officer has broad equitable discretion over remedies, see, e.g., B.D. v. District of Columbia, 817 F.3d 792, 797-98 (D.C. Cir. 2016), but it disagrees that the officer can order something contrary to federal law.
1.
Recall, too, that the IDEA guarantees disabled children certain "related services ... as may be required" for them to benefit from special education. 20 U.S.C. § 1401(26)(A). One such service is "transportation." Id. Pierre-Noel's first claim turns on whether "transportation" in the Act includes carrying a disabled child up and down the stairs of her apartment building.
Pierre-Noel has provided inconsistent evidence about the number of people it would take to carry K.N. While Pierre-Noel thinks that one person could do it, see, e.g., Pl. MSJ at 16, her witness—someone who transports disabled children—testified that it would take two people to get him safely down the stairs, see Hr'g Tr. at 11, 19-20.
Because transportation is not defined in the statute, "we must give [it] its ordinary meaning." Petit v. U.S. Dep't of Educ., 675 F.3d 769, 781 (D.C. Cir. 2012). Courts often look to dictionaries to understand ordinary meaning. See, e.g., id. The Court's review of dictionaries around the time of the provision's enactment revealed two possible meanings of transportation. The
Congress enacted the relevant text of the related services provision in the 1975 Education for All Handicapped Children Act. See Pub. L. 94-142, 89 Stat. 775 (1975). In 1990, Congress renamed the law the Individuals with Disabilities Education Act, tweaked certain aspects of the related services list, and left the transportation language unchanged. See Pub. L. 101-476, 104 Stat. 1103 (1990). So the Court focused on dictionaries from the years around 1975.
first is broad: moving a person or thing from one place to another. The second is narrower: moving a person or thing from one place to another using a means of conveyance, such as a vehicle.
First, the broad definitions. One dictionary reports that "transportation" is "an act, process, or instance of being transported" as in "arranging for the transportation of his luggage." Transportation, Webster's New International Dictionary (3d ed. 1961). Another states that "transportation" is "the act of transporting" and "to transport" is to "carry from one place to another; convey." Transportation and Transport, The American Heritage Dictionary of the English Language (1976); Accord Transportation, Oxford English Dictionary (2d ed. 1989) ("Transportation" is the "action or process of transporting; conveyance (of things or person) from one place to another.") Thus, one sense of transportation is the act of moving a person or thing from one place to another.
Second, the narrower definitions. One dictionary defines transportation as "the removal of goods or persons from one place to another by a carrier." Transportation, Black's Law Dictionary (4th ed. 1968). A "carrier" is "one undertaking to transport persons or property." Carrier, Black's Law Dictionary (4th ed. 1968). "In common speech carriers means transportation systems ... [a] school bus acts as a carrier." Id. (cleaned up). Another dictionary defines transportation as a "means of conveyance or travel from one place to another." Transportation, Webster's New Collegiate Dictionary (7th ed. 1963). These definitions are similar in that they speak of a "carrier" or a "means of conveyance"—a thing, such as a school bus, that does the transporting.
The service Pierre-Noel requests—humans lifting and carrying her child up and down steps—may be encompassed by the first definition. But it flunks the second definition. So dictionaries alone do not answer the question of whether lifting and carrying someone fits within the ordinary meaning of transportation. Thus, the Court must look to other sources.
The IDEA's implementing regulations are helpful. They explain that transportation "includes travel to and from school and between schools" and "specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability." 34 C.F.R. § 300.34(c)(16). Travel "to and from" school and "between" schools is also capacious. But coupled with the "specialized equipment" portion of the definition, the regulation evokes a mode of transport—such as a bus or car—that can be adapted to meet a disabled child's needs. The regulatory definition thus supports the narrower batch of dictionary definitions that reference a carrier or means of conveyance.
Things become even clearer when the Court looks to a related statute, the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Courts "normally presume[] that the same language in related statutes carries a consistent meaning." United States v. Davis, — U.S. —, 139 S. Ct. 2319, 2329, 204 L.Ed.2d 757 (2019); see also Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 252 (2012) ("[L]aws dealing with the same subject ... should if possible be interpreted harmoniously."). While the ADA protects a broader class of people—all disabled Americans—it also applies to disabled schoolchildren. See Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 157, 161, 137 S.Ct. 743, 197 L.Ed.2d
46 (2017) (noting this fact). Indeed, the IDEA's exhaustion provision contemplates that a disabled student might sue under both laws seeking similar relief. See 20 U.S.C. § 1415(l) (requiring exhaustion of the IDEA's procedures before a student sues under the ADA "seeking relief that is also available" under the IDEA).
The ADA is illuminating. In a section addressing public transportation, the Act defines "public school transportation" as "transportation by school bus vehicles of schoolchildren, personnel, and equipment to and from a public elementary or secondary school and school-related activities." 42 U.S.C. § 12141(5). Likewise, the ADA defines "designated public transportation" as "transportation (other than public school transportation) by bus, rail, or any other conveyance ... that provides the general public with general or special service ... on a regular and continuing basis." Id. § 12141(2). Both definitions contemplate transportation by a vehicle or mode of transport such as a bus, rail, or other conveyance.
Reading "transportation" in the IDEA similarly "yields sensibly congruent applications across ... [this] other statute[]." Davis, 139 S. Ct. at 2329. The ADA's definition thus leads the Court to privilege the second, narrower set of dictionary definitions just discussed. In other words, "transportation" involves "a carrier" or a "means of conveyance"—such as a bus or train—moving a person from place to place. See supra. This definition also gels with the regulatory definition of transportation, which points to "special or adapted buses, lifts, and ramps." 34 C.F.R. § 300.34(c)(16). Buses to which lifts and ramps may be attached are obviously a carrier or a mode of conveyance. But two people carrying someone is not. In short, the Court is persuaded that the service Pierre-Noel requests—physical carrying and lifting of a disabled child—is not encompassed within the plain meaning of transportation.
2.
Another interpretative tool bolsters this reading. Although dictionaries, regulations, and other statutes provide a useful starting point, "[b]ecause common words typically have more than one meaning, [courts] must use the context in which a given word appears to determine its aptest, most likely sense." Scalia & Garner at 418. To better understand the ordinary meaning of transportation, the Court also looks to how it has customarily been used.
Courts may assess the customary usage of a phrase by searching relevant databases of naturally occurring language. This method is known as corpus linguistics. "Corpus linguistics is an empirical approach to the study of language that uses large, electronic databases" of language gathered from primary sources. Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788, 828 (2018); see also Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 B.Y.U. L. Rev. 1621, 1643-49 (2017) (explaining how the method helps clarify linguistic meaning). Indeed, corpus linguistics is especially valuable "in those difficult cases where ... dictionaries diverge [because it] can serve as a cross-check on established methods of interpretation (and vice versa)." Wilson v. Safelite Grp., Inc., 930 F.3d 429, 440 (6th Cir. 2019) (Thapar, J., concurring in part and concurring in the judgment). Many databases are available. See, e.g., https://www.english-corpora.org (listing some spanning different time periods and genres). So courts must choose wisely. The best database will contain texts from around the time of the Act's enactment with which an ordinary English speaker would regularly interact. Cf. United States v. Rice, 36 F.4th 578, 583 n.6 (4th Cir. 2022) (choosing a corpus based on these criteria). To analyze customary usage of transportation, the Court searched the Corpus of Historical American English (COHA), which collects sources across genres, including fiction, magazines, newspapers, and academic articles between 1820 and 2019.
Other courts have deployed corpus-based approaches to textual meaning. For example, Justice Breyer, writing for the Court, adopted a corpus-based approach to illuminate the meaning of the phrase "carries a firearm." See Muscarello v. United States, 524 U.S. 125, 128-31, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (recounting the phrase in context from dictionaries, literature, and newspaper articles). Other courts have conducted similar analyses using publicly available databases. See, e.g., United States v. Rice, 36 F.4th 578, 583 n.6 (4th Cir. 2022); Health Freedom Def. Fund, Inc. v. Biden, 599 F. Supp. 3d 1144, 1160-61 (M.D. Fla. 2022); United States v. Seefried, No. 21-cr-287, 639 F.Supp.3d 8, 13-15 (D.D.C. Oct. 29, 2022).
The Court queried the COHA for mentions of "transportation" between 1965 and 1975, the decade before and including the year in which Congress enacted the related services provision. Cf. Safelite, 930 F.3d at 444 (Thapar, J., concurring in part and concurring in the judgment) (looking to a ten-year period to generate a sample of written text around the time Congress passed the relevant language). This search returned 1135 hits, or "concordance lines." Given this large universe, the Court reviewed a random sample of 288 hits to see whether "transportation" customarily referred to certain things. This sample size produces a 95% confidence interval. A random sample can be generated through the database itself.
The results are illuminating. The most common referent, with 30.6% of the hits, was systems of transportation. See Attach. A. These include highway systems, subway systems, railroads, and mass transit generally. For example, a 1972 News Chicago article discusses "transportation thru [sic] mass transit lines." Id. at 7. And many others reference "mass transportation" in general. See, e.g., id. at 7, 14, 15.
The Court's random sample and analysis of each concordance line is appended as Attachment A. Because COHA pulls from primary sources, the reader may notice small typos or stray characters in some entries. The Court reproduced the text as it appears in the database.
The second most common referent, with 25% of hits, was vehicular travel. See generally id. Vehicles mentioned include cars, buses, trains, boats, airplanes, and even a rocket. See, e.g., id. at 3, 10, 13, 17, 18. The next most common referent, with 20.4% of hits, is to what might be called the "industry of transportation." Examples include transportation companies, strikes against them, railroad unions, or the movement of products in commerce. See, e.g., id. at 4, 7, 13. A category with a similar number of hits, clocking in at 21.2%, is references to an agency or entity involved with transportation. See generally id. These include mentions of the Department of Transportation, analogous state agencies, the Secretary of Transportation, and national boards overseeing transportation. See, e.g., id. at 5, 11, 15, 31.
Many hits could be classified into two of these four categories. The Court calculated its percentages based on the primary category it thought best described each source.
The Court categorized a few hits (1.7%) as "ambiguous," meaning that there was no clear or implied referent to the term
"transportation." See id. at 1, 4, 15, 17, 23. And it found 3 hits (1%) in which transportation has the broad meaning of moving something or someone from one place to another. See id. at 13, 25, 28. While these entries accord with the broad dictionary definitions of transportation, they appear to be outliers given the rest of the sample. Finally, and most critically, the Court found no references to any form of pedestrian travel—transporting something by walking with it or carrying it.
This is not to say that because transportation most often referred to a system, type of vehicle, agency, or the overall industry means that it takes on that meaning in all contexts. Perhaps transportation could include some form of pedestrian transit, despite not appearing in the sample. But this corpus analysis confirms that such usage would be highly anomalous. Put simply, people did not use the term "transportation" the way Pierre-Noel suggests when the IDEA was enacted. Transportation involves a means of conveyance—such as a vehicle, subway system, or railroad—moving people or things from one place to another.
3.
Yet another consideration militates against Pierre-Noel's preferred interpretation of the term "transportation." In Arlington Central School District Board of Education v. Murphy, the Supreme Court considered whether the IDEA's attorneys' fees provision allows prevailing parents to recover fees for services rendered by experts. See 548 U.S. 291, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006). The Court reasoned that its resolution of the case "is guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause." Id. at 295, 126 S.Ct. 2455. Such legislation is essentially a contract between Congress (which provides funding) and the States (which choose to accept it in some cases). See id. And because "recipients of federal funds must accept them voluntarily and knowingly," any conditions Congress attaches to a State's acceptance of funds "must be set out unambiguously." Id. at 296, 126 S.Ct. 2455; see also Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) ("[I]f Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.").
Thus, this Court must "view the IDEA from the perspective of a state official who is engaged in the process of deciding whether the State should accept IDEA funds and the obligations that go with those funds." Murphy, 548 U.S. at 296, 126 S.Ct. 2455. In other words, this objective test asks, "whether the IDEA furnishes clear notice regarding the liability at issue in this case." Id. Accord McAllister v. District of Columbia, 794 F.3d 15, 18-19 (D.C. Cir. 2015) (applying this test to hold that parents could not recover fees for paralegal services under the IDEA's attorneys' fees provision).
Other courts have rejected interpretations of the IDEA for similar reasons. For example, in Osseo Area Schools, Independent School District Number 279 v. M.N.B. ex rel. J.B., the Eighth Circuit reasoned that no provision of the IDEA—including the transportation provision—put States on notice that it must reimburse a parent for certain driving expenses. See 970 F.3d 917, 922 (8th Cir. 2020). In that case, a student's IEP required that she be "transported individually to and from school"—a service her mother provided and for which she received reimbursement. Id. at 920. But after the mother transferred the student to another school, the former school district refused to fully reimburse her for the extra mileage. See id. at 920. The Eighth Circuit analyzed the
IDEA through Murphy's Spending Clause lens and concluded that it does not provide notice regarding mileage reimbursement. See id. at 922.
Though the facts here differ from those two cases, the same reasoning applies. The Court must ask whether the IDEA's mention of transportation puts a reasonable government official on notice that lifting and carrying a student is required. It does not. Based on the Court's textual analysis, transportation is the act of conveying students to their schools using a carrier or a mode of transport such as a bus.
More, the regulations contemplate service to and from school, including specialized equipment. See 34 C.F.R. § 300.34(c)(16). As the District noted, they say nothing about "services in and around the home" or "special assistance getting to and from the school bus." Hr'g Tr. at 63. The Court sees nothing in the IDEA or its regulations providing clear notice to the District that it must carry a student up and down stairs inside and outside an apartment building to the bus.
Pierre-Noel suggests that the District was on notice that the IDEA might require lifting and carrying when it issued its transportation policy in 2013. See id. at 21-22. She notes that the District explicitly disclaimed its obligation to lift or carry disabled students, citing health and safety concerns. See AR at 1045. Pierre-Noel argues that this language shows that the District knew it might have to provide these services, so it wanted to "preemptively get out in front of that [and] put in the policy we are not going to do it." Hr'g Tr. at 22.
The Court disagrees. The Spending Clause analysis asks the Court to consider whether a reasonable state official would think "transportation" includes lifting or carrying a student. And in any event, the opposite inference from Pierre-Noel's is equally plausible—the District did not think that the IDEA required such a service, so it proactively informed parents about the services it had to provide. Indeed, the fact that the District prohibited any carrying or lifting of students while pledging to provide bus transportation, including lifts and other specialized equipment, shows that it was closely tracking the IDEA's meaning and implementing regulations. See, e.g., AR at 1040 (transportation policy cites 34 C.F.R. § 300.34(a) in explaining what it has to provide); AR at 1115 (District explained that it would provide "a transport chair to transition to/from the school bus ... to ensure safe transition onto the bus[.]").
4.
Pierre-Noel raises a few additional arguments on the transportation issue. None is persuasive. First, Pierre-Noel at times construes her transportation claim as a "failure to implement" claim—which assess whether the school materially deviated from the IEP's terms. See, e.g., Pl. MSJ at 20-22; Hr'g Tr. at 45. The core of Pierre-Noel's argument here is that because the lifting and carrying service is enumerated in the IEP, the IDEA must require someone to provide it. See, e.g., Pl. MSJ at 20-21. Not so. While IEPs help tailor special education and related services to the unique needs of a disabled child, see, e.g., Endrew F., 580 U.S. at 391, 137 S.Ct. 988, their terms cannot override federal law. Thus, the question is not whether the school failed to implement the IEP's terms, but whether the terms of the IEP exceed the scope of the District's responsibilities under the IDEA.
Second, Pierre-Noel argues that if the District does not have to carry K.N. to the bus, the school does. See Pl. MSJ at 34-38. But this claim lacks a foundation in
law. The Court's holding that the IDEA does not mandate carrying K.N. to the bus applies with equal force to the school as a related-service provider. And in any event, the school appears to be relieved from all transportation obligations (even assuming carrying a student to the bus were included). Under the IDEA, a State
shall use the payments that otherwise would have been available to a [school] ... to provide special education and related services directly to children with disabilities ... if the [State] determines that the ... children ... can best be served by a regional or State program or service delivery system designed to meet the needs of such children[.]"
20 U.S.C. § 1413(g)(1). In other words, the District may decide that it—rather than individual schools—can best provide a related to service to the disabled children within its jurisdiction. The District confirms that it has chosen this route. See District MSJ at 10-11; see also AR at 1473-74. It must therefore provide transportation "in such manner ... as [it] considers appropriate" in compliance with the IDEA. 20 U.S.C. § 1413(g)(2).
The Court sees nothing in this language that preserves a role for the school once the State has decided to provide a related service. See Pl. MSJ at 37 (making this argument). More, the District's transportation policy provides: "It is the expectation of [the District] that all [schools] adhere to this Policy." AR at 1039. In other words, the school would contravene District policy even if it volunteered to transport K.N. for free. The best reading of § 1413(g) is that reimbursement under the IDEA may be available to schools for related services, but if the State decides it can deliver the service better, it assumes the responsibility (and receives the funding).
Third, exhaustion. Pierre-Noel argues that the District cannot now challenge the transportation condition in the IEP because it failed to exhaust this claim through the IDEA's processes. See Pl. Reply at 13. The District argues that it need not exhaust a defense that lifting and carrying falls outside the meaning of the IDEA's related services provision. See District Reply at 3-4, ECF No. 30. The Court agrees.
The IDEA provides: "[B]efore the filing of a civil action ... the procedures under subsections (f) ... shall be exhausted." 20 U.S.C. § 1415(l). Phrased in the passive voice, it does not specify who must exhaust. Cf. Bartenwerfer v. Buckley, 598 U.S. 69, 143 S. Ct. 665, 672, 214 L.Ed.2d 434 (2023) ("Passive voice pulls the actor off the stage."). But subsection (f) clarifies. It states that "parents or the [school] involved in [a due process] complaint shall have an opportunity for an impartial due process hearing[.]" 20 U.S.C. § 1415(f)(1)(A). So the exhaustion provision most naturally refers to parents or a school. Cf. Bartenwerfer, 143 S. Ct. at 672 ("[C]ontext can confine a passive-voice sentence to a likely set of actors."); accord Fry, 580 U.S. at 157-58, 137 S.Ct. 743 (noting that the "plaintiff bringing suit ... must first exhaust the IDEA's administrative procedures.").
As the Sixth Circuit recently explained, the IDEA's exhaustion requirement recognizes that three laws allow disabled children to seek relief for difficulties encountered at school. See Doe ex rel. K.M. v. Knox Cnty. Bd. of Educ., 56 F.4th 1076, 1080 (6th Cir. 2023). That history matters because "the IDEA now allows parents to pursue overlapping claims under the ADA or Rehabilitation Act, but they must complete the IDEA's administrative process if they are 'seeking relief that is also available under' that law." Id. (quoting 20 U.S.C. § 1415(1)). Thus, cabining the IDEA's exhaustion provision to
parents and schools accords with the Act's text and structure.
Pierre-Noel gestured to subsection (b)(6) during the motions hearing, see Hr'g Tr. at 47, which states that "any party [may] present a complaint ... with respect to any matter relating to ... the provision of a free appropriate public education to such child; and "which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action," 20 U.S.C. § 1415(b)(6). "Any party" thus refers to a "parent" or a "public agency." While it is true that the District is a state educational agency, and thus could be a public agency, that interpretation renders (b)(6) inconsistent with the exhaustion provision itself. As discussed, the exhaustion subsection cites (f), which only suggests that a parent or school could exhaust. The only role contemplated for the District in (f) is that it may conduct due process hearings, as determined by State law. See id. § 1415(f)(1)(A).
* * *
No party (nor the hearing officer) has engaged in close textual analysis of the IDEA. And the parties make only passing references to the interpretative gloss required for Spending Clause statutes. The District largely relies on its transportation policy, which states that it will provide transportation using lifts, ramps, and other mechanized equipment for disabled students, but that it will not lift or carry them. See District MSJ at 11-13. As discussed, the District's policy accords with the Court's reading of transportation. For her part, Pierre-Noel's primary arguments are rooted in cases interpreting the phrase "supportive service" in the "related services" provision. See, e.g., Pl. MSJ at 18, 20-24. The Court addresses these arguments next.
The District does not ask the Court to defer to this policy as a reasonable interpretation of the IDEA, and in any event it appears to be non-binding guidance. But the soundness of the District's policy as a safety measure is borne out in this case. Even Pierre-Noel testified below that K.N. tends to "squirm" and "hyper extends his back," so whoever is carrying him has to "really hold him firmly" so that neither he nor they get hurt. AR at 1577. More, Pierre-Noel's witness offering to provide private transportation testified that he would not carry K.N. in the way Pierre-Noel wanted—over the shoulder outside of his wheelchair—because of safety concerns. See Hr'g Tr. at 11, 19-20.
B.
Pierre-Noel argues that the lifting and carrying she seeks is a "supportive service." Pl. MSJ at 25-26; see also Hr'g Tr. at 24. "[S]upportive services" is further defined by a parenthetical listing various types—"speech pathology and audiology services, interpreting services, psychological services ... [and] counseling services, including rehabilitation counseling, orientation and mobility services[.]" 20 U.S.C. § 1401(26)(A). Nothing in the enumerated list resembles lifting or carrying a student to a bus from his residence before the school day begins. More, the IDEA's implementing regulations also define these services, and none relate to lifting or carrying students. See 34 C.F.R. § 300.34(c)(1-15).
Recall that the phrase "supportive services" also falls at the end of a list: "transportation, and such developmental, corrective, and other supportive services." 20 U.S.C. § 1401(26)(A). While "other supportive services" may be broad if read in isolation, see Pl. MSJ at 25, the preceding words cabin it. The canon ejusdem generis instructs that "[w]here general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned." Scalia & Garner at 199; see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (applying this canon to
"seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce"). Where "other" precedes a general term at the end of a list, the canon "implies the addition of similar after the word other." Scalia & Garner at 199.
So the class of "other supportive services" are those similar in kind to "developmental" and "corrective" services provided to disabled students. These terms most naturally refer to services provided to help disabled students develop (physically or mentally) and correct things with which they may be struggling. See, e.g., Development, Webster's New Collegiate Dictionary (7th ed. 1963) (cross-referencing "developmental" and defining "development" as the "act, process, or result of developing"); Corrective and Correct, The American Heritage Dictionary of the English Language (1976) (defining corrective as "tending or intending to correct," and "correct" as "[t]o remove, remedy, or counteract"). Pierre-Noel does not show that the lifting or carrying she requests is something that helps K.N. develop or that corrects something with which he struggles.
K.N.'s own IEP is good evidence of what "other supportive services" means. A section entitled "motor skills/physical development," for example, details the supports he needs during the school day to progress. IEP at 16-17. Similarly, a section entitled "Blind/Visually Impaired" explains that K.N. requires "supports to assist [him] with using his eyes to visually attend to objects and people." Id. at 3; see also id. at 4 (explaining that K.N. requires access to "services to support his communication, mobility[,] and positioning in the classroom and school (e.g. stander and Rifton chair with wheels)"). The Court finds that lifting and carrying K.N. up and down stairs to get him to the bus is not an "other supportive service" under the IDEA.
Plaintiff's counsel also suggested during the motions hearing that lifting and carrying K.N. falls with a "mobility service"—one of the enumerated "other supportive services." Hr'g Tr. at 24; 20 U.S.C. § 1401(26)(A). The IDEA's implementing regulations define "orientation and mobility services" as "services provided to blind or visually impaired children by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home, and community." 34 C.F.R. § 300.34(c)(7). It also references teaching students to use a cane, service animal, or spatial or environmental awareness to navigate. See id. No service involves lifting or carrying a student—indeed, most aim to help the student move on his own—so this argument is unpersuasive.
Pierre-Noel does not argue that the District must lift and carry K.N. based on the text of "other supportive services." Instead, she points to various cases interpreting that statutory language broadly to further the IDEA's purpose. See, e.g., Pl. MSJ at 22-24; Pl. Reply at 4-6. In Irving Independent School District v. Tatro, for example, the Supreme Court held that changing a student's catheter during the school day to drain her bladder ever three to four hours qualified as a "supportive service ... required to assist a handicapped child to benefit from special education." 468 U.S. 883, 890, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984). The Court reached that result by deferring to a Department of Education regulation explaining that catheterization is a related service. See id. at 890 n.7, 891, 104 S.Ct. 3371. It also noted that its reading furthered the IDEA's purpose to "make public education available to handicapped children." Id. The Court reasoned that, based on this purpose, catheterization "permit[s] a child to remain at school during the day" and is "no less related to the effort to educate
than are services that enable the child to reach, enter, or exit the school." Id. Pierre-Noel seizes on the "reach, enter, or exit the school" dicta to argue that the District must carry K.N. up and down stairs to the school bus. See, e.g., Pl. MSJ at 22.
Similarly, in Cedar Rapids Community School District v. Garret F. ex rel. Charlene F., the Supreme Court held that providing continuous, one-on-one nursing services to a ventilator-dependent student qualified as a "supportive service." 526 U.S. 66, 73, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999). The Court began by noting the broad nature of the related services provision. See id. Then, relying on Tatro, the Court reasoned that "[a]s a general matter, services that enable a disabled child to remain in school during the day provide the student with the meaningful access to education that Congress envisioned." Id. One reading of this broad dicta, which Pierre-Noel favors, is that a State must provide any supportive service if it enables a child to attend school. See Pl. MSJ at 22-23.
Justice Thomas dissented in Cedar Rapids. He explained that Tatro "cannot be squared with the text of [the] IDEA" and even assuming it could be, it "ignores the constitutionally mandated rules of construction applicable" to Spending Clause statutes. Cedar Rapids, 526 U.S. at 79, 119 S.Ct. 992 (Thomas, J., dissenting).
This dissent was prescient. In Murphy, the Court confirmed that the IDEA should be interpreted as a Spending Clause statute. See 548 U.S. at 295-96, 126 S.Ct. 2455. That is, courts must look for clear statements in the text before imposing requirements on states. See id. This the Tatro and Cedar Rapids Courts did not do. More, neither opinion considered the meaning of "transportation" as a related service, which is really what Pierre-Noel requests here. See, e.g., Pl. MSJ at 16-22; IEP at 24, 27 (listing the lifting and carrying requirement in the transportation section of the document). Finally, both cases involved "supportive services" provided during the school day. See Tatro, 468 U.S. at 886, 104 S.Ct. 3371; Cedar Rapids, 526 U.S. at 73, 119 S.Ct. 992. Pierre-Noel requests services outside of school hours, in her private apartment building. Taken to its logical conclusion, her reading of "supportive services" could encompass many other preconditions to a child arriving at school, such as getting him out of bed. See Hr'g Tr. at 32-33 (Plaintiff's counsel conceding that such a service would be included within her interpretation of the statute). The IDEA's provision of related services that "may be required" for a child to receive a FAPE cannot be stretched so far. For these reasons, the Court finds that Tatro and Cedar Rapids do not control this case.
Pierre-Noel also relies on Petit v. U.S. Department of Education, 675 F.3d 769 (D.C. Cir. 2012), to argue that "related services" in general should be interpreted "by reference to services that must be provided in order to get students to, or keep students in, school." Pl. MSJ at 22. In Petit, the Circuit analyzed whether "audiology services" in the related services provision required a school to help children optimize their surgically implanted hearing aids. 675 F.3d at 771. The Department of Education had issued regulations stating that such a service was not required as a related service because the Act excludes assistance with "a medical device that is surgically implanted." Id. The court, deferring under Chevron step two, held that the regulations permissibly construed "audiology services," which it found was ambiguous. See id. at 780-87. Petit, like Tatro and Cedar Rapids, does not interpret the meaning of transportation as a related service, or even other supportive
services—Pierre-Noel's alternative argument. So it has little bearing on the Court's reasoning.
Finally, Pierre-Noel argues that this Court should follow District of Columbia v. Ramirez. See, e.g., Pl. MSJ at 17-22; Pl. Reply at 7-9, ECF No. 28. In Ramirez, Judge Bates held that the District had to provide a disabled student transportation from his apartment door to the bus, no matter the number of steps involved. See 377 F. Supp. 2d 63, 65 (D.D.C. 2005). Ramirez is distinguishable for two reasons. First, the court's reasoning largely turned on the language of a prior District directive, which stated that disabled students "shall be picked up and dropped off either at the door of their residence, or at the curbside of their residence." Id. at 66. Given that language, the court upheld the hearing officer's finding that "it was not unreasonable for [the District] to bear responsibility for transporting [the student] from the door of his family's apartment to the school bus." Id. at 70; see also id. at 69 (deferring to the hearing officer's finding that the District "is not foreclosed from" carrying a student). That directive is no longer valid, see District MSJ at 13, and as explained, this Court is not affording the hearing officer similar deference as was appropriate in Ramirez.
Second, because Ramirez was decided before the Supreme Court's decision in Murphy, the court did not consider the implication of Spending Clause interpretative principles. See Ramirez, 377 F. Supp. 2d at 68-70. For the reasons already discussed, the Court believes Murphy is key to the analysis here. The Court therefore rejects Pierre-Noel's arguments grounded in Ramirez.
* * *
The Court acknowledges the many challenges that both Pierre-Noel and K.N. face due to his disability, compounded by Pierre-Noel's disability. But as the D.C. Circuit explained in Petit, "the Supreme Court has refused to interpret free appropriate public education to require the furnishing of every special service necessary to maximize each handicapped child's potential." 675 F.3d at 783. Instead, the Court has "made clear that the Act guarantees a substantively adequate program of education to all eligible children." Endrew F., 580 U.S. at 394, 137 S.Ct. 988. If Pierre-Noel decides that the homebound instruction the school provides in accordance with K.N.'s IEP is inadequate, she has other options. She could arrange for private lifting services, seek assistance from another public program, move to an ADA-compliant home, or arrange for her husband to carry K.N. But the IDEA does not oblige the District to carry K.N. up and down residential stairs to the bus.
C.
Pierre-Noel next argues that the hearing officer rightly found that the July IEP was inappropriate, but he erred by failing to order the school to fix it. See Pl. MSJ at 40-43. The school claims that the officer erred when he found the July IEP inappropriate at the outset. See School MSJ at 16-21. Pierre-Noel is correct.
Recall that the hearing officer found the July IEP inappropriate because it did not include in-person tutoring while K.N. would be learning at home. See HOD at 10-11. The officer found that the school knew more than a month before the July IEP meeting that the District would refuse to carry K.N. up and down stairs. See id. at 11. Thus, the officer reasoned that there was time before K.N. was supposed to start in September to reconvene the IEP team and adopt the learning plan that the parties agreed to in October. See id. That plan—which is still in place—now provides an in-person tutor for K.N. three
hours a day, five days a week, and a vision specialist for one hour every Wednesday. See id. at 8.
Though the Court ultimately agrees with the hearing officer's bottom line, it again gives his decision little deference. First, as Pierre-Noel points out, despite finding that the IEP was inappropriate, the officer did not order the school to fix it. See id. at 11, 22; see also Pl. MSJ at 16, 44-47. Second, the decision contains an incorrect factual premise. It states: "It is uncontroverted that [K.N.]'s least restrictive environment is a general education classroom with 10 hours of specialized instruction outside general education." HOD at 11. Not so. K.N.'s IEP provides that his least restrictive environment is "specialized instruction outside of the general education setting with a dedicated nurse aide." IEP at 22; see also School MSJ at 18 ("The student's IEP has never proposed placement in a general education classroom."). Third, the officer does not explain how Pierre-Noel met her initial burden of production in front of him. See HOD at 10-11.
In due process hearings involving challenges to a child's IEP, the party bringing the challenge bear the initial burden of production to establish a prima facie case. See D.C. Code § 38-2571.03(6)(A)(i). Here, that was Pierre-Noel. If she meets her burden, then the school "shall hold the burden of persuasion on the appropriateness of the existing [IEP]." Id.; see also W.S. v. District of Columbia, 502 F. Supp. 3d 102, 120-21 (D.D.C. 2020). Given the school's concessions at the motions hearing about an in-person aide, the Court will not delve into whether the parties met these burdens before the hearing officer.
Recall that "special education" under the IDEA is "specially designed instruction ... to meet the unique needs of a child with a disability." 20 U.S.C. § 1401(29). To ensure that a child receives that instruction, his IEP must describe the services provided that enable him to advance and attain appropriate goals. See id. § 1414(d)(1)(A)(i)(IV). The "key inquiry regarding an IEP's substantive adequacy is whether, taking account of what the school knew or reasonably should have known of a student's needs at the time, the IEP it offered was reasonably calculated to enable the specific student's progress." Z.B., 888 F.3d at 524. While this Court evaluates the IEP when it was created, "evidence that post-dates the creation of an IEP" can be "relevant to ... whether the IEP was objectively reasonable at the time it was promulgated." Id. (cleaned up).
Pierre-Noel argues that without in-person support at home, K.N. cannot access his curriculum or receive a meaningful education because of his complex medical needs. See Hr'g Tr. at 50-51; see also Pl. MSJ at 40-42. And the school conceded that it knew this fact when it drafted his IEP. See Hr'g Tr. at 54 ("There was never any dispute from Bridges that the student required in-person support if he was going to be learning at home"). Indeed, in the administrative proceedings, the school's own witness testified that K.N. needs in-person support when learning from home. See id.; see also AR at 1608 (school's witness testifying that K.N. needs to be moved into various positions for virtual learning). But the school maintains that the broad language in the IEP—that the "team will develop a plan for continuation of services," IEP at 21—is appropriate because it afforded the school flexibility, see Hr'g Tr. at 56; see also School MSJ at 20.
The Court agrees with Pierre-Noel that the IEP should have included a provision for an in-person aide given K.N.'s unique challenges when learning from home. While the IEP's language may have given the school flexibility, it did not adequately specify the special education and related services that K.N. would require
at home. Indeed, the record reflects that Pierre-Noel first asked for an in-home aide at the July IEP meeting. See AR P-22 at 9:10-10:20. And the school responded that they could discuss it if K.N. could not get to school in the fall. See id. But the school knew that K.N. could not reach school because of the transportation issue as early as July after the District's inspector visited the apartment building.
More, as all parties acknowledge, the school has been providing K.N. an in-person tutor for three hours a day, five days a week, and a vision specialist every Wednesday for one hour since mid-October. See HOD at 8; see also AR at 1603-04. The post-hoc provision of these services suggests that the IEP was not reasonable at the time it was written. See Z.B., 888 F.3d at 524. Indeed, the school could have reconvened the IEP team much earlier to ensure that these same backup services were in place by K.N.'s first day of school.
For these reasons, the Court finds that the July IEP was inappropriate. It will grant Pierre-Noel summary judgment on this claim and order the school to convene an IEP team to amend the IEP's language to include K.N.'s in-person services. Cf. Reid ex rel. Reid, 401 F.3d 516, 526 (D.C. Cir. 2005) (noting court may fashion an equitable remedy for denial of a FAPE); see also Pl. MSJ at 42-43 (requesting this precise relief).
D.
Pierre-Noel's final argument is that the hearing officer should have found the school liable for failing to provide a nurse in school as required by his IEP. The hearing officer's reasoning on this issue is terse. In sum, he found that the school did not have a nurse ready for the first two weeks when K.N. was scheduled to return to school. See HOD at 12. But since K.N. never reached school because of the transportation dispute, the officer found that he was never denied a FAPE. See id.
The Court agrees with this conclusion. The school has never disputed its obligation to provide K.N. a nurse when he returns to school. See, e.g., School MSJ at 15-16 ("Bridges stands ready to staff and onboard a nurse as soon as there is an agreement on when [K.N.] will return to school in person"); Hr'g Tr. at 61. In fact, the record reflects that the school identified a nurse before K.N.'s September start date, and tried to set up a time for Pierre-Noel to meet with her to discuss logistics. See AR at 1568-69. After that nurse abruptly quit, the school found another nurse who was able to start in short order. See id. at 1569. But none of this mattered because from July 2022 onward, K.N. never made it to the bus to get to school.
More, recall that K.N.'s July IEP is still in effect. It states: "The Dedicated Nurse Aide will be removed from this IEP as K.N. attends virtually. The Dedicated Nurse Aide will be added back to the IEP upon resuming school in person." IEP at 21. Recognizing this, the hearing officer ordered the school to have a nurse available to K.N. when he resumes in-person instruction. See HOD at 22. While Pierre-Noel argues that the school materially deviated from K.N.'s IEP and thus failed to provide him a FAPE, see Pl. MSJ at 38, the school has followed the IEP to the letter as to the dedicated nurse aide, see School MSJ at 15-16. Cf. Johnson v. District of Columbia, 962 F. Supp. 2d 263 (D.D.C. 2013) (failure to provide special education teacher was not failure to implement IEP because the school will be able to provide one by the time student needs it). And suggesting that the Court should order the school to provide an in-school nurse when it knows K.N. cannot get there is preposterous. In any event, Pierre-Noel lacks standing to press this claim now. To sue in federal court, a plaintiff must show that she has suffered an injury traceable to the challenged action of the defendant, and that it is likely to be redressed by a favorable decision. See Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). To prove injury, Pierre-Noel must show that K.N. suffered an "invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." Id. at 1548.
Because K.N. has not been attending school in person, he has suffered no injury from the school's failure to retain a nurse. More, his mother cannot prove that the school violated the provisions of his IEP because, as explained, his IEP stated that the dedicated nurse would not be provided in school while he learns from home. See IEP at 21. And as to redressability, the hearing officer has already ordered the school to provide him a nurse when he returns. See HOD at 22; see also Hr'g Tr. at 61 (the school confirmed that an order from this Court would have no impact because Bridges knows they must have a nurse in place for K.N.'s return). Thus, because Pierre-Noel has not proven any cognizable injury to K.N. that is redressable, the Court lacks subject matter jurisdiction over this claim. Cf. Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299-300 (4th Cir. 2005) (finding that a student lacked standing to sue in IDEA case when he suffered no financial loss for the school district's failure to reimburse his schooling expenses).
If K.N. is arguing that the school will fail to have a nurse in person when he is ready to return, see Pl. MSJ at 39, this claim is not ripe because it "depends on future events that may never come to pass," Devia v. Nuclear Regul. Comm'n, 492 F.3d 421, 425 (D.C. Cir. 2007).
IV.
For these reasons, the Court will grant the District's motion because it finds that the IDEA does not require it to carry K.N. to the bus. The Court will also grant Pierre-Noel's motion as to the inappropriate IEP claim, but will deny it in all other respects. Finally, the Court will grant the school's motion as to the in-school nurse, but will deny it in all other respects. A separate order will issue today.
Pierre-Noel also seeks attorneys' fees under the IDEA, which provides that the Court "may award reasonable attorneys' fees ... to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B)(i)(I). While Pierre-Noel did not receive all the relief she requested, she did prevail on her inappropriate IEP claim against the school. So she may be entitled to recover reasonable fees. The parties must meet and confer, and if they cannot agree on fees, Pierre-Noel may file a motion for fees within 45 days from the date of this opinion.
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