JOAKIMA JONES AS NEXT FRIEND OF v. DISTRICT OF COLUMBIA (2025)

MEMORANDUM OPINION AND ORDER

Plaintiffs in this action are five schoolchildren with disabilities and their mothers. During the relevant time period, the children were enrolled in District of Columbia public schools (“DCPS”). Plaintiffs bring this action against the District of Columbia (the “District”), alleging violations of the Fourth and Fifth Amendments under 42 U.S.C. § 1983, the Rehabilitation Act, the Americans with Disabilities Act, and D.C. common law. The District of Columbia moves for summary judgment on all claims, Dkt. 85, which Plaintiffs oppose, Dkt. 92. For the reasons explained below, the Court will grant the District's motion in part and deny it in part.

I. BACKGROUND

A. Factual Background

For purposes of resolving the motion for summary judgment, the Court takes “the facts in the record and all reasonable inferences derived therefrom in a light most favorable” to the non-moving party. Coleman v. Duke, 867 F.3d 204, 209 (D.C. Cir. 2017) (quoting Al-Saffy v. Vilsack, 827 F.3d 85, 89 (D.C. Cir. 2016)). Understood in that light, the relevant background is as follows.

Plaintiffs C.U., J.D., A.H., M.W., and H.H. are five children with disabilities who attended public schools operated by the District during the 2018–2019 and/or 2019–2020 school year: M.W., A.H., and C.U. attended River Terrace Education Campus (“River Terrace”), H.H. attended Walker Jones Education Campus (“Walker Jones”), and J.D. attended Ludlow Taylor Elementary School (“Ludlow Taylor”). Dkt. 21-1 at 6–22 (Second Am. Compl. ¶¶ 17–31, la, 5a, 18a, 24a, 47, 50, 74, 87, 113) (“SAC”).¹ River Terrace serves only disabled students, while Walker Jones and Ludlow Taylor serve both disabled and non-disabled students. In total, the District operates 117 schools and serves nearly 50,000 students. Dkt. 97 at 1 (Plfs’ Resp. to Def's SUMF ¶¶ 2, 4). Plaintiffs’ claims arise from five incidents, each involving one of the students.

1. C.U.

C.U. is a “non-verbal, developmentally delayed, wheelchair bound child” who receives nutrition through a feeding tube and is “completely dependent” on her caregivers for all life activities. Dkt 21-1 at 9 (SAC ¶¶ 1a–4a). On October 15, 2019, C.U., accompanied by an attendant, took the bus from her home to her school, River Terrace. Dkt. 97 at 6–7 (Plfs’ Resp. to Def's SUMF ¶¶ 58). After C.U. arrived at school, her aide and teachers noticed that she was “shaking and sweating” and appeared “uncomfortable.” Id. at 7 (Plfs’ Resp. to Def's SUMF ¶¶ 59–62). At 8:00 a.m., her aide took her to the school nurse. Id. (Plfs’ Resp. to Def's SUMF ¶ 63). A few minutes later, the nurse called C.U.’s mother, Plaintiff Gold Ukegbu, to inform her that C.U. seemed unwell. Id. at 7 (Plfs’ Resp. to Def's SUMF ¶¶ 64–67). Ukegbu advised them to take her out of her wheelchair and place her on a soft chair. Id. at 8 (Plfs’ Resp. to Def's SUMF ¶ 68). The nurse informed C.U.’s mother that she had had a large bowel movement, and they discussed whether this could be the cause of her discomfort. Id. at 7 (Plfs’ Resp. to Def's SUMF ¶ 66). When the nurse asked C.U.’s mother to come pick her up, her mother stated that “she could not come right away based on the fact that the nurse was not providing her with any details about her daughter's condition that gave rise to alarm.” Id. at 8 (Plfs’ Resp. to Def's SUMF ¶ 73). Later, C.U. began vomiting, and the school again called C.U.’s mother, who responded that “vomiting is nothing new with her daughter's condition because she eats using a feeding tube.” Id. at 9 (Plfs’ Resp. to Def's SUMF ¶¶ 80–82).

At the end of the school day, River Terrace put C.U. on the bus to go home. When she arrived home, her mother noticed C.U.’s pained expression, and after pulling off C.U.’s pants, saw that her right leg was swollen. Id. at 9 (Plfs’ Resp. to Def's SUMF ¶¶ 83–85); Dkt. 94-2 at 105 (Ukegbu Dep. 104:15–16). She drove C.U. to the emergency room, where C.U. was diagnosed with a broken right femur. Dkt. 97 at 10 (Plfs’ Resp. to Def's SUMF ¶ 86). Ukegbu suspects that C.U.’s broken femur was caused by her aides “dropp[ing] [C.U.] when transferring her from her wheelchair to the changing table.” Dkt. 94-3 at 2 (Ukegbu Decl. ¶ 9); see also Dkt. 119 at 1 (Ukegbu Decl. ¶¶ 2–3).

After learning of C.U.’s injury, the principal of River Terrace directed C.U.’s teacher to prepare an incident report. C.U.’s teacher failed to do so, but she inputted notes about her communications with C.U.’s mother into C.U.’s SEDS account, which is “an online system with an account specific to each student that includes a communication log.” Dkt. 97 at 10 (Plfs’ Resp. to Def's SUMF ¶¶ 89–90). A few days later, C.U.’s teacher and aide met with a DCPS investigator to discuss the incident. Id. at 10 (Plfs’ Resp. to Def's SUMF ¶¶ 91–92). C.U. returned to school in December 2019, and Ukegbu met with River Terrace staff “to discuss an updated individualized plan for C.U.” Id. at 10–11 (Plfs’ Resp. to Def's SUMF ¶¶ 94–95). The parties dispute whether a formal investigation was ever completed. Id. at 10 (Plfs’ Resp. to Def's SUMF ¶ 93). C.U. still attends River Terrace, although “she now has a dedicated aide.” Dkt. 119 at 1 (Ukegbu Decl. ¶ 1).

2. J.D.

J.D. was a student at Ludlow Taylor. He is non-verbal and has autism. At the time of the incident, J.D. was four years old and was assigned to a special classroom at Ludlow Taylor for children with autism. Dkt. 97 at 13–14 (Plfs’ Resp. to Def's SUMF ¶¶ 126–30). At some point during the day on November 26, 2019, J.D. sustained an injury to his mouth. When his mother, Plaintiff Carlet Harris, came to pick him up from school, he “pointed to his mouth, and said ‘ouch.’ ” Id. at 14 (Plfs’ Resp. to Def's SUMF ¶ 134). Harris noticed that his mouth was swollen. Id. (Plfs’ Resp. to Def's SUMF ¶ 135). She went to the principal, who informed her that there had not been any reported incidents involving J.D. that day. Dkt. 94-9 at 108 (Harris Dep. 107:10–22). Harris then took him to the hospital, where he was diagnosed with a contusion under his lip and loose front teeth. Dkt. 97 at 14 (Plfs’ Resp. to Def's SUMF ¶¶ 135–38). Several days later, she filed a grievance with the DCPS Comprehensive Alternative Resolution team (“CARE team”) and attended a meeting with school staff to discuss J.D.’s injury. Id. (Plfs’ Resp. to Def's SUMF ¶¶ 139–41). Her grievance filing resulted in the involvement of the Metropolitan Police Department (“MPD”), which dispatched a detective to investigate. Dkt. 94-9 at 152–53 (Harris Dep. 152:17–153:3). Harris and the detective watched the video footage showing J.D. on the playground, but they did not see any evidence of an injury. Dkt. 94-9 at 106–07 (Harris Dep. 105:17–106:16). On June 16, 2020, the CARE team sent Harris a response to her grievance, informing her that, “[a]fter reviewing the footage and conducting interviews with the staff at Ludlow Taylor Elementary School, DCPS CARE was unable to conclusively determine when and how Student J.D. sustained the injury to his lip.” Dkt. 87-12 at 4 (Response to Grievance); see Dkt. 97 at 15 (Plfs’ Resp. to Def's SUMF ¶ 144). Harris appealed that finding, but DCPS affirmed its initial response, explaining that “[a]fter conducting additional interviews,” DCPS was still unable to determine how J.D. became injured. Dkt. 87-16 at 2. DCPS promised to “develop a safety plan” to monitor J.D. Id.

According to Harris, however, J.D. “refused to return to his classroom after this incident,” and she was “forced” to withdraw him from Ludlow Taylor. Dkt. 94-8 at 3 (Harris Decl. ¶ 14). J.D. now attends St. Coletta Special Education Public Charter School, which is funded by the District. Dkt. 120-2 at 2–3 (Quandt Decl. ¶¶ 4, 7); Dkt. 97 at 15 (Plfs’ Resp. to Def's SUMF ¶ 150).

3. A.H.

A.H. attended River Terrace from 2015 until 2019. Dkt. 97 at 2 (Plfs’ Resp. to Def's SUMF ¶ 14). A.H. has multiple disabilities, including cerebral palsy and significant speech and language disabilities. Id. (Plfs’ Resp. to Def's SUMF ¶ 15). A.H. was assigned to a classroom with five students, supervised by five adults—one teacher and four aides. Id. at 3 (Plfs’ Resp. to Def's SUMF ¶ 17). On May 17, 2019, A.H. was in the classroom when Justin Spencer, an aide, allegedly “pulled her ear, pushed her stomach and shoved her inside of [a] cabinet.” Dkt. 93-5 at 2 (Jones Decl. ¶ 4). Spencer removed the keys from the cabinet door, locking A.H. inside. Dkt. 97 at 3 (Plfs’ Resp. to Def's SUMF ¶¶ 19–20). Another aide, Derrika Speight, noticed that A.H. was missing and then “heard banging.” Id. at 3–4 (Plfs’ Resp. to Def's SUMF ¶¶ 22–29). Spencer told Speight that A.H. was in the cabinet and handed over the key. Id. (Plfs’ Resp. to Def's SUMF ¶¶ 25, 29). Speight then unlocked the cabinet and let A.H. out. Id. at 4 (Plfs’ Resp. to Def's SUMF ¶¶ 29–30). A different aide “immediately informed” the principal, who directed that aide “to complete an incident report and call the DC Child and Family Services Agency (CFSA) hotline.” Id. (Plfs’ Resp. to Def's SUMF ¶¶ 31–32). The principal then called A.H.’s mother, Plaintiff Joakima Jones, to inform her of the incident. Id. (Plfs’ Resp. to Def's SUMF ¶ 34). MPD also responded and completed a police report. See Dkts. 86-4, 86-6.

Spencer's purpose in locking A.H. in the cabinet is unclear, but the parties agree that there is no evidence he did so “for any disciplinary purpose.” Dkt. 86-5 at 3 (Spencer Decl. ¶ 9); Dkt. 92 at 19 (relying on “his admission that he had no reason to lock [A.H.] in the cabinet”). When Speight asked Spencer why he had locked A.H. in the cabinet, he replied that he was “playing” with A.H. Dkt. 97 at 5 (Plfs’ Resp. to Def's SUMF ¶¶ 37–38). The River Terrace principal, Aimee Ivette Cepeda, also testified that Spencer “didn't have a reason” for locking her in the cabinet, but he thought it would be “funny.” Dkt. 86-21 at 45 (Cepeda Dep. 44:8–13). The following month, MPD closed its investigation and the U.S. Attorney's Office declined to prosecute Spencer. Dkt. 97 at 5 (Plfs’ Resp. to Def's SUMF ¶¶ 42–43). DCPS concluded its own investigation in July and informed Spencer that the allegations against him had been substantiated and that he would be suspended for nine days without pay. Id. (Plfs’ Resp. to Def's SUMF ¶ 44); Dkt. 86-8 at 2 (Suspension Letter).

When A.H.’s parents tried to return her to River Terrace in the fall, “she could not function normally because of the trauma” caused by the incident with Spencer. Dkt. 93-5 at 3 (Jones Decl. ¶ 13). Jones attests that A.H. had a negative reaction upon seeing Spencer again when she returned from summer break, and that she ultimately “withdrew [A.H.] from River Terrace” because of her dissatisfaction with “how the school managed the incident” with Spencer. Id. (Jones Decl. ¶¶ 13–14). Like J.D., A.H. now attends St. Coletta Special Education Public Charter School. Dkt. 120-2 at 1 (Quandt Decl. ¶¶ 4, 6); Dkt. 116 at 1 (Jones Decl. ¶ 3).

4. M.W.

M.W. attended River Terrace from 2013 until 2019. Dkt. 97 at 11 (Plfs’ Resp. to Def's SUMF ¶ 101). “M.W. is autistic, intellectually disabled and is functionally non-verbal.” Id. (Plfs’ Resp. to Def's SUMF ¶ 102). At the time of the incident, M.W. was 17 years old. Dkt. 87-2 at 4. On the morning of January 18, 2019, M.W. was behaving in an erratic manner. Although the parties provide different descriptions of his conduct, Plaintiffs allege that “M.W. was groaning and waiving his arms in his classroom.” Dkt. 21-1 at 14 (SAC ¶ 51a). The parties agree that River Terrace then called M.W.’s mother, Plaintiff Rachel Whatley, to inform her that he was having a “bad day,” and that “[t]wo behavioral technicians ․ were called to M.W.’s classroom to assist with M.W.’s behavior.” Dkt. 97 at 11–12 (Plfs’ Resp. to Def's SUMF ¶¶ 104, 106). “At some point, the behavioral techs gained control over M.W by grabbing him by both arms.” Id. (Plfs’ Resp. to Def's SUMF ¶ 107). “As M.W. was being held by the behavioral techs,” M.W.’s teacher, Nikita Fountain, “approached M.W. and slapped him in the face.” Id. (Plfs’ Resp. to Def's SUMF ¶ 108). River Terrace then called MPD, a school resources officer, and Whatley. Id. (Plfs’ Resp. to Def's SUMF ¶¶ 110–12). The police arrived at the school and investigated the incident. Id. (Plfs’ Resp. to Def's SUMF ¶¶ 114–15). DCPS also investigated and collected reports from witnesses. Id. at 12–13 (Plfs’ Resp. to Def's SUMF ¶¶ 116–17). Several days later, Fountain was placed on leave while the investigation was pending. DCPS ultimately determined that Fountain engaged in “an act of corporal punishment” and “deceit,” and it suspended her for nine days without pay. Id. at 13 (Plfs’ Resp. to Def's SUMF ¶¶ 118–22). Following the MPD investigation, the case was referred to U.S. Attorney's Office, which declined to prosecute Fountain. Id. (Plfs’ Resp. to Def's SUMF ¶ 123).

Whatley “removed M.W. from [River Terrace] after the incident.” Id. at (Plfs’ Resp. to Def's SUMF ¶¶ 125). By that time, M.W. and his family had moved to Maryland, and his family enrolled him in a Maryland public school. Dkt. 93-6 at 20 (Whatley Dep. 19:6–18); see Dkt. 115 at 1 (Whatley Decl.). But M.W. struggled in this new school, and his mother withdrew him before he completed the year. Dkt. 93-6 at 20 (Whatley Dep. 19:6–18). M.W. and his family remain residents of Maryland. Dkt. 120-1 at 2 (Grimmett Decl. ¶ 7); see Dkt. 115 at 1 (Whatley Decl.).

5. H.H.

H.H. attended Walker Jones Education Campus. He has “multiple significant disabilities, including cerebral palsy, seizure disorder, speech and language impairments and developmental delays” and “can ambulate only by using a wheelchair.” Dkt. 97 at 16 (Plfs’ Resp. to Def's SUMF ¶¶ 153–54). H.H. received physical therapy at Walker Jones from a physical therapist named Dr. Denise Hagley, who worked for DCPS as an independent contractor. Id. (Plfs’ Resp. to Def's SUMF ¶¶ 155–56). On June 6, 2019, H.H was in a physical therapy session with his dedicated aide and Hagley. Id. (Plfs’ Resp. to Def's SUMF ¶¶ 160–61). His aide “alleged that she witnessed [the therapist] ‘grab/plug’ H.H.’s nose for approximately 4 seconds and then let go after H.H. did not seem to want to participate in physical therapy activities.” Id. at 17 (Plfs’ Resp. to Def's SUMF ¶ 165). His aide reported Hagley to the D.C. Child and Family Services Agency, the Walker Jones principal, and the Special Education Director. Id. at 16 (Plfs’ Resp. to Def's SUMF ¶ 163). That afternoon, H.H.’s aide called his mother, Plaintiff Bayoush Alemayhu, to inform her of the incident, and she in turn informed MPD. Id. at 17 (Plfs’ Resp. to Def's SUMF ¶¶ 168–69); Dkt. 87-20 at 2. DCPS and MPD initiated investigations, see Dkts. 87-20, 87-21, while Alemayhu also filed a grievance with the DCPS CARE team, Dkt. 97 at 17 (Plfs’ Resp. to Def's SUMF ¶ 175).

Roughly two weeks later, Walker Jones informed Alemayhu that Walker Jones was no longer equipped to provide the education and support required by H.H.’s most recent individualized education program (“IEP”),² but the District would transfer him to another school that could accommodate him. Dkt. 97 at 18 (Plfs’ Resp. to Def's SUMF ¶ 180); see Dkt. 87-23 at 4–5. Accordingly, H.H. began attending Brookland Middle School the following school year. Dkt. 97 at 18 (Plfs’ Resp. to Def's SUMF ¶ 181).

In the spring of 2020, DCPS issued a letter response to H.H.’s mother's grievance. DCPS concluded that, following the incident, Walker Jones staff failed to “submit an incident report in accordance with DCPS reporting procedures.” Dkt. 87-22 at 2 (Grievance Response). Shortly thereafter, the DCPS unit tasked with investigating the incident “revoked” Hagley's “privileges to work with DCPS students.” Dkt. 97 at 19 (Plfs’ Resp. to Def's SUMF ¶ 191). Her privileges were later restored, but DCPS informed Hagley's employer that she should not be permitted to work with students at Walker Jones. Id. (Plfs’ Resp. to Def's SUMF ¶ 192). According to Alemayhu, however, she had complained to the school about Hagley prior to the incident on June 6, 2019. See Dkt. 94-6 at 116, 125 (Alemayhu Dep. 115:8–11, 124:8–22). H.H. is now a student at Roosevelt High School, a D.C. public school. Dkt. 121 at 1 (Alemayhu Decl. ¶ 3).

B. Procedural Background

Plaintiffs commenced this action against the District of Columbia in early 2020. Dkt. 1 (Compl.). Plaintiffs’ initial complaint included three minor plaintiffs and their mothers: Joakima Jones, individually and as next friend of A.H.; Rachel Whatley, individually and as next friend of M.W.; and Bayoush Alemayhu, individually and as next friend of H.H. Plaintiffs alleged four counts: violation of constitutional rights under the Fourth Amendment, 42 U.S.C. § 1983 (Count I), discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq. (Count II), discrimination in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (Count III), and negligent supervision (Count IV). Dkt. 1 at 18–22 (Compl. ¶¶ 143–74).

Through two rounds of amendments and partial motions to dismiss, Plaintiffs added two parties—Gold Ukegbu, individually and as next friend of C.U., followed by Carlet Harris, individually and as next friend of J.D.—and added a Fifth Amendment claim to Count I. Dkts. 13–14, 17-1, 26-1; Dkt. 21-1 at 25 (SAC ¶ 151a). The District responded with its third partial motion to dismiss, arguing that none of the Plaintiffs alleged a Fourth Amendment violation or stated a Monell claim under the Fourth or Fifth Amendments because they “failed to plead the existence of a ‘custom, policy, or practice’ that caused Plaintiffs’ injuries.” Dkt. 26-1 at 3–6 (emphasis in original). The Court granted the motion to dismiss Plaintiffs’ Fourth Amendment claims except with respect to A.H., but otherwise denied the motion. Dkt. 85-6 at 55–56 (July 8, 2022 Mot. Hr'g Tr. at 54:21–55:5).

Following the close of discovery and a pre-motion conference, the District filed the pending motion summary judgment on Plaintiffs’ remaining claims—namely, all Plaintiffs’ Fifth Amendment claims, A.H.’s Fourth Amendment claim, and all Plaintiffs’ claims under the Rehabilitation Act, under the Americans with Disabilities Act, and for negligent supervision under D.C. common law. Dkt. 82. Plaintiffs filed their opposition to the District's motion, Dkt. 92, and the District filed a reply, Dkt. 102.

II. LEGAL STANDARD

To prevail on a motion for summary judgment, the moving party bears the burden of demonstrating “that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it is capable of affecting the outcome of the litigation. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007). In considering a motion for summary judgment, the Court must resolve all factual disputes and draw “all justifiable inferences” in favor of the non-moving party. Liberty Lobby, 477 U.S. at 255.

The party seeking summary judgment “bears the initial responsibility” of “identifying those portions” of the record that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party carries this initial burden, the burden then shifts to the nonmoving party to show that sufficient evidence exists for a reasonable jury to find in the nonmoving party's favor with respect to the “element[s] essential to that party's case, and on which that party will bear the burden of proof at trial.” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (quoting Holcomb, 433 F.3d at 895). “That is, once the moving party carries its initial burden on summary judgment, the nonmoving party must provide evidence that would permit a reasonable jury to find in its favor.” Gentry v. McDonough, 588 F. Supp. 3d 91, 94–95 (D.D.C. 2022) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)).

The non-moving party's opposition must consist of more than mere allegations or denials; instead, it must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. “[T]he moving party is entitled to judgment as a matter of law if the non-moving party ‘fails to make a showing sufficient to establish the existence of an element essential to [its] case, and on which [it] will bear the burden of proof at trial.’ ” Eddington v. U.S. Dep't of Def., 35 F.4th 833, 836–37 (D.C. Cir. 2022). If the non-moving party's evidence is “merely colorable” or “not significantly probative,” the Court should grant summary judgment. Liberty Lobby, 477 U.S. at 249–50.

III. ANALYSIS

A. Fourth and Fifth Amendment Claims

Plaintiffs seek to hold the District liable under § 1983 for alleged violations of A.H.’s Fourth Amendment rights and all of the minor Plaintiffs’ Fifth Amendment rights. Under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), municipalities cannot be held liable under a respondeat superior theory, but a municipality can be held liable if the municipality itself caused the constitutional violations at issue, see City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694–95). To prevail on a Monell claim, “a plaintiff must show that [a] policy or custom of the municipality caused a violation of the plaintiff's constitutional rights.” Harvey v. District of Columbia, 798 F.3d 1042, 1049 (D.C. Cir. 2015). A § 1983 claim against a municipality, accordingly, has two elements: (1) “a predicate constitutional violation” and (2) “a custom or policy of the municipality [that] caused the violation.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003). “Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). When a plaintiff's claim of municipal liability turns on an asserted “failure to train its employees in a relevant respect,” the municipality's conduct “must amount to ‘deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.’ ” Id. (quoting City of Canton, 489 U.S. at 388).

Here, the District argues that Plaintiffs have failed to proffer evidence sufficient to permit a reasonable jury to find that they have satisfied either prong of the Monell test (except with respect to H.H., where the District concedes a predicate Fifth Amendment violation but contends that he has failed to identify any evidence of a relevant policy or custom). See Dkt. 85-1 at 18. The Court will address each prong of the Monell test in turn.

1. Predicate Constitutional Violations

All Plaintiffs assert substantive due process violations of their rights to bodily integrity under the Fifth Amendment. See Dkt. 21-1 at 25 (SAC ¶¶ 150a–52a) (alleging that minor children were subjected to “unjustified and unreasonable force,” including “instances of assault, battery, seclusion and discrimination”); Washington v. Glucksberg, 521 U.S. 702, 720 (1997). As noted above, A.H. also asserts that she was subject to an unlawful seizure, in violation of the Fourth Amendment. Dkt. 21-1 at 25 (SAC ¶ 151a).

Unsurprisingly, “[p]hysical abuse” of school children “may rise to the level of a constitutional violation” under the Fifth Amendment. Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000); accord Webb v. McCullough, 828 F.2d 1151, 1158–59 (6th Cir. 1987); Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1180 (9th Cir. 2007); T. W. ex. rel. Wilson v. Sch. Bd. of Seminole Cnty., 610 F.3d 588, 598 (11th Cir. 2010). The standard, however, is a demanding one. To proceed to trial on their Fifth Amendment substantive due process claims, Plaintiffs must proffer evidence sufficient to permit a reasonable jury to find

that the District of Columbia's conduct was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” This stringent requirement exists to differentiate substantive due process, which is intended only to protect against arbitrary government action, from local tort law.

Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001) (internal citation omitted) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).

Similarly, the Fourth Amendment's prohibition on unreasonable searches and seizures extends to public school officials, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995), but only when school officials are “carrying out searches and other disciplinary functions pursuant to [school] policies,” New Jersey v. T.L.O., 469 U.S. 325, 336 (1985). In other words, the Fourth Amendment applies only when the school official is acting with the “inten[t] to elicit a benefit for the government in either its investigative or administrative capacities.” Slaby v. Fairbridge, 3 F. Supp. 2d 22, 29 (D.D.C. 1998); accord Doe ex rel. Doe v. Hawaii Dep't of Educ., 334 F.3d 906, 909 (9th Cir. 2003) (holding that the Fourth Amendment applies to “government conduct motivated by ‘investigatory or administrative purposes’ ” (citation omitted) (emphasis in original)).

a. C.U.’s Fifth Amendment Claim

The District argues that it is entitled to summary judgment on C.U.’s predicate Fifth Amendment claim because there is “no evidence” that any DCPS employee used force against C.U. Dkt. 85-1 at 19. The District observes that “[n]obody ever determined when, where, or how C.U. was injured, and no expert is designated to opine on the likely cause or timing of the injury.” Id. at 20. C.U. experienced difficulties throughout the day of the incident, but in the District's view, her caretakers behaved reasonably under the circumstances: they promptly informed her mother, stayed in contact with her, and attempted to discern the cause of C.U.’s distress. Id. at 19–20. Plaintiffs, in turn, seem to agree that C.U.’s injury was not the product of any intentional abuse or unreasonable force. Instead, they appear to assert that C.U.’s injury was the product of negligence. Plaintiffs observe that “CU's medical records say that she fell,” and they contend that C.U.’s caretakers apparently “dropped [C.U.] while attempting to transfer her” after changing her. Dkt. 92 at 23.

Although C.U.’s injury is appalling, the Court is unpersuaded that it can—on the present record—serve as the basis for a Fifth Amendment claim. Plaintiffs point to no conscience-shocking behavior by school officials, and there is no evidence that any intentional or reckless abuse occurred. Instead, taking C.U.’s mother's supposition that the school staff dropped C.U. while attempting to change her diaper as true, their actions would, at most, amount to negligence. “Liability for negligently inflicted harm,” however, “is categorically beneath the constitutional due process threshold.” County of Sacramento, 523 U.S. at 834. Moreover, although the Supreme Court has “recognized the possibility that some official acts” involving recklessness or gross negligence might “be actionable under the” due process clause, the inquiry is necessarily context specific; as the Supreme Court has observed, “deliberate indifference” requires, among other things, some opportunity to deliberate. Id. at 849–55. Here, however, Plaintiffs can identify no evidence that would permit a reasonable jury to find that a District of Columbia employee engaged in conduct that was deliberately indifferent to C.U.’s physical wellbeing.

Plaintiffs nonetheless insist that C.U.’s Fifth Amendment rights were violated because River Terrace “fail[ed] to follow proper reporting procedures” after her injury. Dkt. 92 at 21. But an alleged failure properly to report an injury does not constitute a predicate constitutional violation. Plaintiffs cite no authority for the proposition that the Fifth Amendment protects a right to a complete and accurate incident report, and the Court is aware of none. Moreover, even if the Court were to speculate and assume that an aide was responsible for C.U.’s injury and that the aide hid that fact from DCPS and C.U.’s mother, that misconduct would not constitute a violation of the Fifth Amendment and would not have caused C.U.’s injury.

Because no reasonable jury could find, based on the record evidence, that the school staff's conduct “was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,’ ” Butera, 235 F.3d at 651, the Court will grant summary judgment to the District as to this claim. Although a reasonable jury might find that C.U.’s injury occurred sometime during the school day, that is all that a reasonable jury might infer, and that inference, standing alone, cannot support a substantive due process, shocks-the-conscience claim.

b. J.D.’s Fifth Amendment Claim

As for J.D.—who was diagnosed with a contusion under his lip—the District also argues that he did not suffer a predicate constitutional violation. The District observes: “There is similarly no evidence that J.D. was injured by any intentional, reckless, or grossly negligent conduct by a DCPS employee. What happened to J.D. is also unknown.” Dkt. 85-1 at 21. Plaintiffs, likewise, do not appear to suggest—and, in any event, cite no evidence—that J.D.’s injury was the result of abuse or the use of corporal force. J.D.’s mother reviewed the video footage from the school along with an MPD officer, and while she testified that she did not see him fall, she does not claim to have seen any evidence of physical abuse. See Dkt. 92 at 24–25. More generally, Plaintiffs fail to proffer sufficient evidence to permit a reasonable jury to find that any employee of DCPS caused J.D.’s injury, much less that any such employee did so intentionally or through deliberate indifference to his physical well-being. The shocks-the-conscience standard is demanding and cannot be satisfied based on an amplified version of res ipsa loquitur: he was injured while at school, and, therefore, one of his teachers or aides must have engaged in conduct that was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” County of Sacramento, 523 U.S. at 847 n.8.

Rather than identify any act of physical abuse that may have caused J.D.’s injury, Plaintiffs, once again, focus on DCPS's response. They assert that the District “never conducted an adequate investigation” into the incident, and that such conduct “amounts to ‘conscience-shocking’ behavior.” Dkt. 92 at 25. But, again, an inadequate investigation does not, standing alone, constitute a violation of substantive due process. Nor do Plaintiffs explain how the alleged inadequacy of the after-the-fact investigation could have caused J.D.’s injury or, for that matter, could have caused any of the injuries alleged in Plaintiffs’ second amended complaint.

J.D.’s injury was unfortunate, and the Court appreciates that the evidence pertaining to this incident (like many of the incidents at issue in this case) is complicated by the fact that J.D. was young and non-verbal and thus unable to explain the cause of his injury. Nonetheless, Plaintiffs “cannot survive summary judgment by simply speculating” about the cause of his injury. Seed v. Pruitt, 2019 WL 1399828, at *1 (D.D.C. Feb. 11, 2019). Given that there is not a “scintilla” of evidence that any District employee abused or used any force against J.D., or that any District employee was deliberately indifferent to his physical wellbeing, Liberty Lobby, 477 U.S. at 252, his injury cannot serve as a predicate constitutional violation.

c. A.H.’s Fourth and Fifth Amendment Claims

It is unclear whether A.H.’s claim—that Spencer pushed her in her abdomen, pulled her ear, and locked her in a cabinet in her classroom, Dkt. 21-1 at 12 (SAC ¶ 24a)—is most appropriately treated as a Fourth or a Fifth Amendment claim. On one hand, locking a child inside a cabinet certainly sounds like a seizure, and, as the Supreme Court has observed, “[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing’ ” the claim. Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). But on the other hand, although Spencer's precise motivation for locking A.H. in the cabinet (assuming for present purposes that he did so) is a mystery, the parties agree that he was not acting for a disciplinary or other governmental purpose, see, e.g., Dkt. 92 at 19 (relying on “his admission that he had no reason to lock her in the cabinet”), and not every impermissible restraint by a government employee implicates the Fourth Amendment. As both out-of-circuit precedent and decisions from this Court have recognized, “[t]he Fourth Amendment is not the proper source of a plaintiff's constitutional right when the “objectionable conduct occurred outside of a criminal investigation or other form of governmental investigation or activity.” Poe v. Leonard, 282 F.3d 123, 136–137 (2d Cir. 2002) (citing United States v. Attson, 900 F.2d 1427, 1430 (9th Cir. 1990)); see also Doe v. Luzerne Cnty., 660 F.3d 169 (3d Cir. 2011); Slaby v. Fairbridge, 3 F. Supp. 2d 22, 29 (D.D.C. 1998); cf. T.L.O., 469 U.S. at 336–37. Under those circumstances, a claim may be more “appropriately analyzed pursuant to the ․ guarantee of substantive due process.” Poe, 282 F.3d at 137.

Here, however, the Court need not resolve this question because, even if the Court assumes that A.H. has identified sufficient evidence to satisfy the first prong of the Monell test—either on an unlawful seizure or on a substantive due process theory—neither A.H. nor her mother has proffered sufficient evidence to satisfy the second prong of the test. The Court addresses that difficulty below.

d. M.W.’s and H.H.’s Fifth Amendment Claims

M.W.’s Fifth Amendment claim is based on Fountain allegedly striking M.W., and H.H.’s Fifth Amendment claim is based on Hagley allegedly grabbing and plugging his nose. Dkt. 92 at 5, 43. The District concedes that H.H. has proffered sufficient evidence to permit a reasonable jury to find a Fifth Amendment violation. See Dkt. 85-1 at 2. The Court will assume for purposes of resolving this motion that M.W. has done so as well. As with A.H., however, neither M.W. nor H.H. has proffered sufficient evidence to go to a jury on the second prong of the Monell test.

The Court now turns to that separate problem with Plaintiffs’ case.

2. Custom or Policy Causing the Constitutional Violations

Assuming that A.H., M.W., and H.H. suffered predicate constitutional violations, the next step is to determine whether these violations were caused by a “policy or custom” of the District of Columbia. The D.C. Circuit “has identified several ways in which a plaintiff may allege a municipal policy or custom”:

she may point to (1) “the explicit setting of a policy by the government that violates the Constitution,” (2) “the action of a policy maker within the government,” (3) “the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become ‘custom,’ ” or (4) “the failure of the government to respond to a need (for example, training of employees) in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations.”

Blue v. District of Columbia, 811 F.3d 14, 18–19 (D.C. Cir. 2015). Here, Plaintiffs rely on the third and fourth theories: adoption by a policymaker (the DCPS Chancellor) through his knowing failure to act and a failure to train rising to the level of deliberate indifference. Dkt. 92 at 30–31.

As an initial matter, the Court once again notes that Plaintiffs conflate the two prongs of the Monell test. In their opposition, they argue that “[a]ll five plaintiffs can show ‘conscience shocking’ behavior just based on the fact that Defendant failed to report, investigate, train and otherwise respond to individual and corporate complaints.” Id. at 20. But as explained above, that is not a cognizable theory of constitutional liability. A failure to investigate incidents or a failure to train can meet Monell's causation requirement (the second prong), but those failures still require a pattern of predicate constitutional violations (the first prong). In other words, a failure to train or a failure to investigate is not, standing alone, sufficient to state a Monell claim because the plaintiff must identify a constitutional violation and must show that it was caused by a municipal policy or custom. If a city's police officers engage in a pattern of negligent (but not unconstitutional) conduct, for example, a plaintiff could not bring a Monell claim against the city based its failure to train its officers to act with due care or based on its failure to adequately investigate instances of negligence.

Giving Plaintiffs the benefit of the doubt, however, the Court will construe A.H.’s, M.W.’s, and H.H.’s claims (as well as the related claims that their mothers assert) as satisfying the first prong of Monell based upon their allegations that the District's agents or employees violated their Fifth Amendment rights by using unreasonable force (or, possibly, in the case of A.H., violated her Fourth Amendment rights by locking her in a cabinet). The question, then, is whether Plaintiffs have offered sufficient evidence for a reasonable jury to find that the District either (1) adopted a policy or custom of improper use of force by failing to respond to past uses of improper force in similar circumstances, or (2) failed to train its agents or employees on how to avoid the improper use of force, thereby demonstrating deliberate indifference to such misconduct. But to prevail under either of these theories, Plaintiffs must proffer evidence sufficient to permit a reasonable jury to find a “persistent, pervasive practice” of similar Fifth Amendment (or Fourth Amendment) violations. Carter v. District of Columbia, 795 F.2d 116, 125 (D.C. Cir. 1986).

To establish the adoption of a custom or policy by a policymaker, Plaintiff must offer evidence of prior violations “by [the policymaker's] subordinates that [were] so consistent that they have become ‘custom.’ ” Blue, 811 F.3d at 18–19 (emphasis added). Similarly, to establish adoption of a policy or custom based on a failure to train amounting to deliberate indifference, Plaintiff must offer evidence of “[a] pattern of similar constitutional violations by untrained employees.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (emphasis added). To show a “pattern,” a plaintiff must “present concentrated, fully packed, precisely delineated scenarios.” Parker v. District of Columbia, 850 F.2d 708, 712 (D.C. Cir. 1988) (internal quotation marks omitted). Even a “catalog of disquieting events is not sufficient to demonstrate a pervasive pattern” where the “occurrences ․ do not coalesce into a discernible ‘policy.’ ” Carter, 795 F.2d at 123–24. Without a pattern of prior violations, the municipality cannot be said to have had actual or constructive notice of its employees’ misconduct or a need for training. Connick, 563 U.S. at 62. And without actual or constructive notice, the municipality cannot be said to have caused the plaintiff's constitutional injury.

Here, Plaintiffs point to the incidents involving A.H., M.W., and H.H. But three instances of alleged physical abuse, by three different individuals (one who was a teacher, one who was an aide, and one who was a contractor) at two different schools, over a period of several months, and involving different conduct, is not sufficient to establish a pattern of constitutional violations by District employees or contractors, much less that any such pattern constituted a custom of the District of Columbia that was “the moving force of the [asserted] constitutional violation[s],” Monell, 436 U.S. at 694. “ ‘[N]o hard and fast rule exists for the number of examples’ of similar unconstitutional actions,” Ryan v. District of Columbia, 306 F. Supp. 3d 334, 346 (D.D.C. 2018), but courts have generally required more than three, see Sheller-Paire v. Gray, 888 F. Supp. 2d 34, 40 (D.D.C. 2012) (four incidents insufficient); Hildreth v. Butler, 960 F.3d 420, 428 & n.6 (7th Cir. 2020) (collecting cases holding that “more than five incidents was insufficient to prove a widespread practice or custom over a variety of time frames”). Moreover, even if three incidents might, at times, suffice, those incidents would require a discernible pattern involving more than the use of improper force of some kind against a child by different employees or contractors of DCPS.

The D.C. Circuit's decision in Carter v. District of Columbia, 795 F.2d 116 (D.C. Cir. 1986), is illustrative. There, the court addressed a Monell claim against the D.C. police department based on an excessive force allegation. The plaintiffs argued—just as Plaintiffs do here—that the city “so neglected to train, supervise, investigate, and discipline police officers as to acquiesce in pervasive misconduct” and that “the inadequate response accorded to complaints of police misconduct ․ signaled to police officers that their misbehavior would not be treated by the city as a matter of large concern.” Id. at 122. As for the plaintiffs’ first theory, the court concluded that the plaintiffs’ twelve examples of alleged excessive force perpetrated by various officers (two of which involved one of the officers in plaintiffs’ case) were “scattered” and “not sufficient to demonstrate a pervasive pattern of police officer indulgence in the use of excessive force.” Id. at 123. The plaintiffs’ second theory failed because they pointed to only five allegedly inadequate investigations, and there was evidence that the District took investigatory action with respect to some of them. Id. at 124–25; see also Pineda v. Hamilton Cnty., 977 F.3d 483, 495 (6th Cir. 2020) (“ ‘[A] claim based on inadequate investigation’ requires ‘not only an inadequate investigation in this instance,’ but also ‘a clear and persistent pattern of violations’ in earlier instances. That is, ‘there must be multiple earlier inadequate investigations and they must concern comparable claims.’ ”). This evidence, the court explained, showed only “scattered fire smouldering in smoke from which no policy or custom emerges.” Carter, 795 F.2d at 125.

Here, as in Carter, Plaintiffs have failed to identify evidence of “wrongful behavior [that] cumulatively show[s] a pattern amounting to a custom or policy,” id. at 124, or, more precisely, “a ‘persistent, pervasive practice of the city officials and [DCPS leadership], which, although not officially adopted, was so common and settled as to be considered a custom or policy,’ ” id. at 125 (alteration omitted). There are roughly 50,000 students in D.C. Public Schools, yet Plaintiffs proffer (meaningful) evidence of only three predicate violations. Dkt. 97 at 1 (Plfs’ Resp. to Def's SUMF ¶ 4). “If the evidence plaintiffs presented here were adequate to make out a § 1983 case, then practically every large metropolitan [school system], it would seem, could be targeted for such liability.” Carter, 795 F.2d at 123; see also Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002) (“Eleven incidents each ultimately offering equivocal evidence of compliance with the Fourth Amendment cannot support a pattern of illegality in one of the Nation's largest cities and police forces.”).

Moreover, even if one limits the relevant focus to students with disabilities, Plaintiffs offer no evidence of a “common or widespread pattern of” physical abuse involving a “common design.” Carter, 795 F.2d at 124. To the contrary, the three events took place over a period of five months at two different schools. One involved a teacher's aide, another involved a teacher, and the third involved a contractor who provided physical therapy services on behalf of DCPS. And the physical contact involved in each bear no common characteristics beyond the improper use of force. Accordingly, this case is unlike the paradigm cases of, for example, a large portion of a police force carrying “ ‘throw down’ guns” to use in cases of police shootings of “unarmed suspect[s],” or a case involving a smaller number of instances of misconduct but the type of “common design” that “may support an inference that the instances would not occur but for municipal tolerance of the practice in question.” Id. at 123–24.

Finally, even if these incidents were sufficient to create a pattern, Plaintiffs have not offered sufficient evidence to support a claim that DCPS's response was so “inadequate” that it “signaled [to teachers, aides, and contractors] that their misbehavior would not be treated by the city as a matter of large concern.” Id. at 122. Immediately following the incident involving Spencer and A.H., the principal of River Terrace “directed” a staff member to “call the DC Child and Family Services Agency hotline”; the vice principal “called School Resource Officers to respond to the school to investigate”; and MPD came to the school to investigate. Dkt. 97 at 4 (Plfs’ Resp. to Def's SUMF ¶¶ 31–33). DCPS and MPD conducted concurrent investigations, though MPD “closed its investigation as unsupported for physical abuse” three weeks later. Id. at 5 (Plfs’ Resp. to Def's SUMF ¶¶ 41–42). In contrast, DCPS concluded its investigation the following month and “informed [ ]Spencer that the allegations were substantiated.” Id. (Plfs’ Resp. to Def's SUMF ¶ 44). DCPS then “suspended [Spencer] without pay for nine days.” Id. (Plfs’ Resp. to Def's SUMF ¶ 45). Similarly, immediately upon learning of the incident involving Fountain and M.W., “DCPS called MPD” and M.W.’s family to come pick him up. Id. at 12 (Plfs’ Resp. to Def's SUMF ¶¶ 105, 110–12). MPD officers then arrived at the school, “took statements from staff,” and spoke to M.W.’s mother. Id. (Plfs’ Resp. to Def's SUMF ¶¶ 113–14). DCPS initiated its own investigation, in which it required Fountain and staff members who witnessed the incident to complete “incident reports” and provide “written statements.” Id. at 12–13 (Plfs’ Resp. to Def's SUMF ¶¶ 116–17). DCPS placed Fountain “on administrative leave pending the investigation,” and after DCPS concluded that she had engaged in “corporal punishment” and “deceit,” DCPS suspended Fountain “without pay for nine days.” Id. at 13 (Plfs’ Resp. to Def's SUMF ¶¶ 118–122). And, like the officers in Carter, both Spencer and Fountain were referred “to the U.S. Attorney for prosecution—hardly a mild response.” Carter, 795 F.2d at 125; Dkt. 97 at 5, 13 (Plfs’ Resp. to Def's SUMF ¶¶ 42–43, 123). DCPS also promptly responded to the incident involving Hagley and H.H. After witnessing Hagley pinch H.H.’s nose, H.H.’s aide immediately reported the incident “to DC Child and Family Services Agency, the Principal of [Walker Jones] and the Special Education Director.” Id. at 16 (Plfs’ Resp. to Def's SUMF ¶ 163). Although Walker Jones initially “failed to properly report this incident by filing [a] DCPS incident report[ ],” “[b]oth MPD and DCPS investigated the allegations.” Id. at 17–18 (Plfs’ Resp. to Def's SUMF ¶¶ 170, 178). DCPS's investigation resulted in a decision temporarily “revok[ing]” Hagley's “privileges to work with DCPS students” and “training staff on incident reporting procedures.” Id. at 19 (Plfs’ Resp. to Def's SUMF ¶¶ 189–92).

Plaintiffs, to be sure, gesture at other alleged incidents involving disabled students. Dkt. 92 at 3. These examples, however, do not show the existence of constitutional violations. See Fernandors v. District of Columbia, 382 F. Supp. 2d 63, 77 (D.D.C. 2005) (“Without evidence of actual unconstitutional searches, plaintiff cannot show that D.C. was deliberately indifferent to ongoing violations in failing to provide proper supervision.”). Plaintiffs make the following allegations in their opposition brief, without (meaningful) citations to the record,³ and without relevant dates or discussion of the relevant circumstances: (1) “staff placed a student with complex disabilities in a pool causing her to have a seizure,” (2) “[Redacted] child was abused in DCPS,” although “[t]he facts remain unclear,” and (3) “[Redacted] autistic child was abused in DCPS by a teacher who pulled him down in a bathroom stall by his legs.” Dkt. 92 at 3. Plaintiffs provide no context for these alleged incidents, nor do they argue that they are the product of behavior that was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” County of Sacramento, 523 U.S. at 847 n.8.

Plaintiffs next point to an email that a River Terrace instructor, Rickita Perry, sent anonymously ⁴ to the DCPS Chancellor's office in the spring of 2019, after the incident with M.W. Dkt. 92 at 31–32. The email collected numerous “concerns” shared by River Terrace employees regarding students’ academic progress, insufficient resources, and insufficient training for staff. See Dkts. 85-4 at 7; 112-1 at 1–6. As relevant here, the email refers to “students getting hit by teachers,” Dkt. 85-4 at 7, but it does not describe any incidents of abuse. In this respect, the email provides even weaker evidence than the evidence the D.C. Circuit declined to credit in Carter. There, the court refused to extrapolate a pattern of excessive force based on “seven deaths,” where the plaintiffs provided “no detail at all on the[ ] incidents.” Carter, 795 F.2d at 123. Because Perry's email similarly offers no description of any incidents—let alone a description of unconstitutional conduct—no reasonable jury could infer that additional constitutional violations occurred. Perhaps the email is referring to the incident involving M.W.—or perhaps it is referring to some other incident or incidents. Without greater detail, however, a single, anonymous assertion in a letter cannot suffice to establish a policy or practice under Monell.

Plaintiffs also observe that the principal of River Terrace testified that, in her view, her staff were “not sufficiently trained for what they were required to do at” River Terrace. Dkt. 86-21 at 76 (Cepeda Dep. 75:14–20). But Cepeda did not say that her staff needed training regarding the improper use of force against students; rather, she explained that existing training was not “adequate” because it was “generalized” and did not focus on “how to best support [students’] learning” in light of their “complex[ ]” disabilities. Id. at 81–83, 154 (Cepeda Dep. 80:4–82:20, 153:4–14) (“A.•I would love for the training to be weekly,•right, so that we can stay up to speed with whatever new research is available and to make the training more comprehensive.”). This testimony does not so much as hint at a pattern of unconstitutional conduct at River Terrace. Cepeda and DCPS may have presumed, moreover, that teachers and aides know, without any additional specialized training, not to use force against students. Connick, 563 U.S. at 64–66 (explaining that, in light of prosecutors’ “professional responsibility, recurring constitutional violations are not the ‘obvious consequence’ of failing to” train them on their obligations under Brady).

As a result, Plaintiffs have failed to marshal sufficient evidence to survive summary judgment on their Monell claim.

B. Rehabilitation Act and Americans with Disabilities Act Claims

Each Plaintiff also asserts claims under the ADA and the Rehabilitation Act, which generally prohibit discrimination against disabled individuals. Title II of the Americans with Disabilities Act provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act similarly provides that a qualified individual with a disability shall not, “solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

To prevail on a claim under the ADA or the Rehabilitation Act, a plaintiff must show “(1) that [she] is qualified under the Acts; (2) that [she] was excluded from participation in or has been denied the benefits [of the] services, programs, or other activities for which the District is responsible or otherwise discriminated against; and (3) that the exclusion, denial, or discrimination was by reason of [her] disability.” Reid-Witt ex rel. C.W. v. District of Columbia, 486 F. Supp. 3d 1, 7 (D.D.C. 2020) (alterations omitted). Courts typically consider ADA and Rehabilitation Act claims together, see, e.g., Congress v. District of Columbia, 324 F. Supp. 3d 164, 169 (D.D.C. 2018), although the causation standard under the Rehabilitation Act, which requires a showing that the plaintiff was discriminated against “solely” by reason of her disability, is more stringent than the ADA's causation requirement, which is satisfied if the plaintiff shows that her disability was “a motivating factor in the alleged discrimination,” Reid-Witt, 486 F. Supp. 3d at 11. Under both statutes, however, a plaintiff may not recover compensatory damages absent evidence of “intentional discrimination.” Pierce v. District of Columbia, 128 F. Supp. 3d 250, 278 (D.D.C. 2015); see also Meagley v. City of Little Rock, 639 F.3d 384, 389 & n.4 (8th Cir. 2011) (“All circuits to decide the question have held that to recover compensatory damages under either the ADA or the Rehabilitation Act, a plaintiff must establish that the agency's discrimination was intentional.”) (collecting cases from the First, Second, Fourth, Fifth, Ninth, Tenth, and Eleventh circuits).⁵

Plaintiffs’ claims fail for two independent reasons: They have not produced sufficient evidence for a reasonable jury to find that (1) they were denied participation in, or a benefit of, the District's education programs, or that (2) any challenged actions were taken “because of” or “solely by reason of” their disabilities.

1. Denial of Educational Benefits

As Plaintiffs frame it, their “core argument” under the ADA and Rehabilitation Act is that “they have all been denied ‘meaningful access’ to an education.” Dkt. 92 at 12, 15. As evidence of this denial, Plaintiffs assert that “[a]ll of the students were [at least temporarily] forced out of their schools, and most of them out of DCPS, based on the systemic abuse and the failure of DCPS policymakers to respond to the abuse in a way that actually addressed the safety and educational concerns of parents and teaching staff.” Id. at 15 & n.7 (footnote omitted). Plaintiffs also rely on the anonymous email sent by Rickita Perry to the DCPS Chancellor's Office. The email contains a list of River Terrace teachers’ collective concerns regarding the school's lack of training, resources, and its alleged failures to meet educational goals. Id. at 15–16. Plaintiffs quote this email and its attachment extensively in their opposition brief, arguing that it shows the “obstacles” that “ ‘impeded their access’ to an education[.]” Id. at 15.

Plaintiffs’ claim that they were “forced out” of DCPS, however, is at odds with the undisputed evidence. At the Court's direction, the parties filed a series of supplemental declarations regarding where each student is enrolled in school. According to Plaintiffs, every student has always attended a school funded by the District, with the exception of M.W., who now resides in Maryland. A.H. and J.D. attend St. Coletta of Greater Washington, a publicly funded charter school. Dkt. 120-2 at 1–2 (Quandt Decl. ¶¶ 4, 6–7); Dkt. 114 at 1 (Harris Decl. ¶ 1); Dkt. 116 at 1 (Jones Decl. ¶¶ 1, 3). C.U. remains a student at River Terrace. Dkt. 120-1 at 2 (Grimmett Decl. ¶ 7); Dkt. 119 at 1 (Ukegbu Decl. ¶ 1). M.W.’s family apparently moved to Maryland during the 2019 school year and enrolled him in a Maryland public school after he withdrew from River Terrace. Dkt. 122 at 1 (Whatley Decl. ¶¶ 3–7); Dkt. 21-1 at 16 (SAC ¶ 70). In April 2019, his family “withdrew him from Maryland schools,” but they seemingly still reside in Maryland. Dkt. 115 at 1 (Whatley Decl. ¶ 2); Dkt. 120-1 at 2 (Grimmett Decl. ¶ 7). Finally, following the incident involving H.H., Walker Jones informed his family that the school could no longer “fully implement the services in H.H.’s IEP due to the severity of H.H.’s medical attention, limitations, and instructional program.” Dkt. 97 at 18 (Plfs’ Resp. to Def's SUMF ¶ 180). As a result, “[a]fter the 2018-2019 School Year, H.H. was removed from [Walker Jones] and placed at Brookland Middle School,” id. (Plfs’ Resp. to Def's SUMF ¶ 181), and he is now a student at Roosevelt High School, Dkt. 123 at 1 (Alemayhu Decl. ¶ 3). The District, in other words, has always provided the students with a publicly funded education (while eligible as D.C. residents, see D.C. Mun. Regs. tit. 5-A, § 5001 (2025)).

To be sure, several Plaintiffs allege that the incidents at their respective schools caused them psychological harm, resulting in them missing school or enrolling at a new school.⁶ But “lasting emotional trauma” from an incident at school “does not create a genuine issue of material fact as to whether [the school] kept [the student] from attending or learning at school.” J. V. v. Albuquerque Pub. Schs., 813 F.3d 1289, 1296 (10th Cir. 2016). Put differently, Plaintiffs’ emotional distress and their aversion to certain schools or classrooms is not a substitute for evidence that DCPS denied them access to an education. There is no evidence that they sought to return to school but were unable to do so because DCPS failed to cooperate or to accommodate them. Nor is there evidence that they sought supplemental instruction to compensate for time they missed, but that DCPS refused to provide it. To the extent any student sought to transfer to a different D.C.-funded school, DCPS did not prevent them from doing so. In H.H.’s case, his school even affirmatively reached out to his parents to inform them that it was no longer able to meet his needs and that DCPS would facilitate his transfer to a school that could do so. Dkt. 97 at 18 (Plfs’ Resp. to Def's SUMF ¶ 180). In similar circumstances, courts have declined to find that an “isolated incident” of abuse or mistreatment at school is sufficient to “deprive[ ]” a student of her “right to equal educational opportunity,” T. W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty., 610 F.3d 588, 605 (11th Cir. 2010), especially where, as here, the student is permitted to “enroll[ ] at another ․ school after the incident,” J. V., 813 F.3d at 1296–97 (holding that incident where disabled student was “handcuff[ed] ․ to his chair,” causing emotional trauma, did not constitute “a denial of benefits under Title II”). In light of these circumstances, Plaintiffs fail to explain how their experiences at DCPS “translated into a denial of any educational benefit.” Gohl v. Livonia Pub. Schs. Sch. Dist, 836 F.3d 672, 680–81 (6th Cir. 2016) (holding that disabled student failed to raise a triable issue as to whether he was denied an education, despite evidence of his “abusive” special education teacher and the student's resulting “anxiety” and “panic”).

Moreover, as students with disabilities, Plaintiffs are each entitled to an individualized education program (“IEP”), which is a comprehensive plan “mapping out specific educational goals and requirements in light of [their] disabilities.” Jenkins v. Squillacote, 935 F.2d 303, 304–05 (D.C. Cir. 1991); see 20 U.S.C. § 1414(d). The purpose of the IEP is to ensure that public school systems provide a “free appropriate public education” (“FAPE”) to students with disabilities, as federal law requires. 20 U.S.C. § 1412(1). Yet Plaintiffs do not cite any evidence pertaining to their educational progress (or lack thereof). Plaintiffs point to no test scores, progress reports, assessments, or other objective measures of their education. Plaintiffs do not explain what level of achievement was expected of them under their IEPs, nor do they claim to have fallen short as a result of the incidents in this case. There is also no evidence that the District failed to comply with or to implement any Plaintiff's IEP, thereby depriving them of a FAPE. Indeed, if that were the case, one might have expected Plaintiffs to invoke the federal statute designed for this precise claim—the Individuals with Disabilities Education Act (“IDEA”). But Plaintiffs did not bring such a claim, nor do they claim to have ever invoked any of the IDEA'S procedures to address perceived deficiencies in the students’ FAPEs.

The other evidence Plaintiffs point to—Perry's email describing issues at River Terrace—does not show that they were denied access to an education. The email sets forth only generalized concerns about River Terrace; it does not pertain to any of the Plaintiffs (and it could not pertain to H.H. and J.D., who never attended River Terrace). In addition, a school's alleged deficiencies in training, staffing, and educational progress do not invariably rise to the level of an IDEA violation. Plaintiffs do not explain what level of training, staffing, and progress would have been required for IDEA compliance as to any student, nor have they designated an expert to opine on this issue. See, e.g., DL v. District of Columbia, 109 F. Supp. 3d 12, 28 (D.D.C. 2015) (assessing experts’ “conclusions regarding the effectiveness of the District's policies in meeting its obligations under the IDEA”).⁷ As troubling as this email may be, standing alone, it would not allow a reasonable jury to conclude that the District violated the ADA and Rehabilitation Act by denying a FAPE to A.H., C.U., or M.W.

Ultimately, Plaintiffs’ position proves too much. They maintain that because each the students suffered a traumatic incident at a DCPS school, and because that traumatic incident resulted in missed school days or an aversion to returning to the place where they endured the trauma, they were denied participation in or the benefits of a public program—namely, a free, public education. But by that same reasoning, a slip and fall caused by a wet floor or the contraction of a contagious disease due to poor enforcement of handwashing regimens could serve as the predicate for an ADA or Rehabilitation Act violation, merely because those incidents could result in lost days at school or an aversion to returning to the place of trauma. Nor is it enough to argue that the causation requirement, discussed below, could weed out such cases, since it is easy to imagine circumstances in which disabled students are particularly vulnerable to slippery floors or poor sanitation. For present purposes, the relevant point is that events may have interfered with Plaintiffs’ ability or willingness to attend a particular school or learn in a particular classroom, just as a slip and fall or a contagious disease might result in lost days of attendance. There is no evidence, however, that the District denied Plaintiffs access to a free public education or, indeed, that Plaintiffs ever requested and were denied make-up days to cover the time that they lost due to injury, trauma, or relocating to a new school.

The Court, accordingly, concludes that no reasonable jury could find that Plaintiffs were denied access to a free and adequate public education or FAPE.

2. Discriminatory Purpose/Causation

Even if the Court were to assume that the students were denied FAPEs, they nonetheless cannot meet the causation requirement under these statutes.

Both the ADA and the Rehabilitation Act require Plaintiffs to prove that they were denied access to a benefit because of their disabilities. In other words, as discussed above, they must prove “intentional discrimination” based on disability. Pierce v. District of Columbia, 128 F. Supp. 3d 250, 278 (D.D.C. 2015). One way of proving intentional discrimination is through direct evidence—for example, a smoking gun admission from District officials that they impeded Plaintiffs’ education out of discriminatory animus. In the absence of direct evidence, a plaintiff may nonetheless survive summary judgment by relying on indirect or circumstantial evidence of discrimination. See Holcomb v. Powell, 433 F.3d 889, 899 (D.C. Cir. 2006); Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008). There are three predominant disability discrimination theories that rely upon indirect evidence: disparate treatment claims, disability-based harassment claims, and failure-to-accommodate claims. The type of circumstantial evidence required depends on the nature of the claim. For a disparate treatment claim, a disabled student may create an inference of disability discrimination by providing comparators to show that she was “treated differently from non-disabled students.” Jackson v. District of Columbia, 826 F. Supp. 2d 109, 125 (D.D.C. 2011), aff'd sub nom. Jackson v. Henderson, 2013 WL 500809 (D.C. Cir. Jan. 18, 2013). By way of example, a plaintiff may allege disparate treatment stemming from a school district policy of not considering disabled applicants for spots in selective public high schools, which could be illustrated by a comparison between similarly situated disabled and non-disabled applicants. See, e.g., Reid-Witt, 486 F. Supp. 3d at 11–12. Second, for claims premised upon disability-based harassment by teachers or peers, plaintiffs may prove intentional discrimination by the school district by adducing evidence that the student was “harassed based on [ ] disability” and that the school district “was deliberately indifferent to the harassment.” S.S. v. E. Kentucky Univ., 532 F.3d 445, 454 (6th Cir. 2008). These claims are similar to sexual harassment claims brought under Title IX, which are founded on the theory that severe and persistent sexual harassment “can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999). A school district will be deemed to have caused that deprivation where the district has notice of the harassment and is deliberately indifferent to it. Id. Finally, plaintiffs can show “disability-based discrimination” by proving that the defendant “fail[ed] to make reasonable accommodations” for the plaintiff's disability, thereby effectively denying them equal access to public programs or benefits. Patten v. District of Columbia, 9 F.4th 921, 928 (D.C. Cir. 2021). A failure-to-accommodate claim similarly requires a showing that the public-entity defendant was “deliberately indifferent” to the plaintiff's right to an accommodation. Montgomery v. District of Columbia, 2022 WL 1618741, at *17 (D.D.C. May 23, 2022).⁸ To show deliberate indifference, “a plaintiff [must] prove the defendant disregarded a ‘strong likelihood’ that the challenged action would ‘result in a violation of federally protected rights.’ ” A.J.T. ex rel. A.T. v. Osseo Area Sch., Indep. Sch. Dist. No. 279, 145 S. Ct. 1647, 1655 (2025).

Plaintiffs, however, do not employ any of these frameworks for their claims, and the Court is unable to discern a theory of causation from their opposition brief. Plaintiffs simply assert that they were denied a FAPE due to (1) “systemic abuse and the failure of DCPS policymakers to respond to the abuse,” and (2) “untrained staff.” Dkt. 92 at 15–17.⁹ Nonetheless, the Court will construe Plaintiffs’ allegations of “systemic abuse” and DCPS's concomitant failure to respond as a deliberate-indifference-to-harassment claim, and it will construe Plaintiffs’ allegation regarding “untrained staff” as a failure-to-accommodate claim. Neither of these theories, however, are supported by sufficient evidence for a reasonable jury to find that DCPS or any of its employees intentionally discriminated against Plaintiffs.

Turning first to Plaintiffs’ allegations of discriminatory abuse, there is no evidence that C.U. or J.D. were subjected to intentional abuse at all, let alone that they were subjected to abuse motivated by discriminatory animus. Nor is there any evidence that M.W., A.H., or H.H. were abused because of their disabilities. Although the alleged misconduct is extremely serious and likely tortious, there is no indication that any of the challenged actions were taken “by reason of” the students’ disabilities. Instead, the evidence reveals that Fountain slapped M.W. in response to his erratic behavior that day, see Dkt. 97at 11–12 (Plfs’ Resp. to Def.’s SUMF ¶¶ 101–08), Spencer apparently had “no reason to lock [A.H.] in the cabinet,” Dkt. 92 at 19; Dkt. 97 at 3–5 (Plfs’ Resp. to Def.’s SUMF ¶¶ 21, 37–40), and Hagley grabbed H.H.’s nose allegedly because he “did not seem to want to participate in physical therapy activities,” Dkt. 97at 17 (Plfs’ Resp. to Def.’s SUMF ¶ 165); Dkt. 92 at 43. Discriminatory animus, moreover, cannot be inferred from the bare fact that a teacher behaved inappropriately towards a disabled student. See T. W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty., 610 F.3d 588, 605 (11th Cir. 2010) (concluding that no reasonable jury could find that teacher's repeated abuse of disabled student was motivated by disability, rather than by the student's “disruptive or self-injurious behavior”); J. W. v. Paley, 81 F.4th 440, 450–51 (5th Cir. 2023) (holding that school employee's “inappropriate” statements and conduct towards disabled student, including tasing the student repeatedly, did not create a genuine dispute as to whether the employee had “discriminatory intent”); Gohl v. Livonia Pub. Schs. Sch. Dist., 836 F.3d 672, 683–84 (6th Cir. 2016) (holding that no reasonable jury could conclude that “disability caused the alleged abuse” when a teacher “grabbed [student's] head, jerked it back, and yelled at him,” among other abuses). Perhaps realizing that they cannot make this showing, Plaintiffs did not respond to DCPS's argument that “[t]here is no evidence that the incidents happened, even in part, because of the children's respective disabilities.” Dkt. 85-1 at 30 (emphasis in original); see Dkt. 92 at 15–17.

Moreover, even if Plaintiffs had adduced evidence of abuse motivated by animus, a deliberate-indifference-to-harassment claim requires the abuse to be systemic. See, e.g., S.S. v. E. Kentucky Univ., 532 F.3d 445, 454 (6th Cir. 2008). This requirement flows from the general rule that, to fall within the ADA's or Rehabilitation Act's ambit, the abuse or harassment must be so severe and persistent that it “can be said to deprive the victims of access to ․ educational opportunities.” Davis, 526 U.S. at 650. As a result, and as discussed above, a single incident of disability-based abuse is generally not sufficient to “deprive[ ] [the victim] of his right to equal educational opportunity.” T. W. ex rel. Wilson, 610 F.3d at 605 (holding that single incident where teacher “tripped” a disabled student did not amount to a denial of educational benefits). Thus, not only do Plaintiffs fail to raise a triable issue as to whether Fountain, Spencer, or Hagley engaged in invidious discrimination, but even if they had made that showing, no reasonable jury could find that these single incidents constituted statutory violations.

Nor have Plaintiffs raised a triable issue regarding DCPS's employees’ alleged lack of training under a failure-to-accommodate theory. Under that framework, the accommodation Plaintiffs needed in order to access educational benefits would have been improved training programs for DCPS employees. As explained above, liability for a failure to accommodate a student's disability requires evidence that the school district acted with “deliberate indifference” to the need for the accommodation. Deliberate indifference is “knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.” Pierce, 128 F. Supp. 3d at 278 (quoting Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)). “The ‘knowledge’ element is satisfied where the public entity has notice of the plaintiff's accommodation need, and the ‘failure to act’ element is satisfied by conduct that is ‘more than negligent, and involves an element of deliberateness.’ ” Id.

Plaintiffs have not made this showing as to any student. Turning first to J.D., there is no evidence in the record that DCPS had notice that its training programs at Ludlow Taylor were insufficient. Indeed, Plaintiffs seemingly disavow that DCPS had prior notice, claiming that J.D.’s parents “raised [ ] complaints” about his injury after the incident, and that these complaints “did not even touch on the lack of specialized training on the part of DCPS staff.” Dkt. 92 at 16–17. The same is true with respect to M.W. Plaintiffs provide no evidence that DCPS was aware of a need for additional training at River Terrace prior to his injury, nor is there evidence that Fountain required training in particular. As Plaintiffs concede, “[b]efore the incident” involving M.W., M.W.’s mother “did not have any negative views” of Fountain. Dkt. 97 at 13 (Plfs’ Resp. to Def's SUMF ¶ 124). Plaintiffs nonetheless insist that DCPS had notice because River Terrace's principal, Aimee Ivette Cepeda, testified that she had occasionally requested additional trainings for River Terrace employees during her tenure. But Cepeda did not testify that she requested training to prevent abuse; she requested trainings on “how to best support [the students’] learning,” such as “weekly” trainings so that teachers and staff could “stay up to speed with whatever new research is available” on teaching students with special needs. Dkt. 86-21 at 82–83 (Cepeda Dep. 81:1–82:11). These requests could not have placed DCPS on notice of a need for training to address disability-based abuse. Moreover, there is ample evidence that DCPS “required” River Terrace employees to participate in various types of trainings regarding “behavior, ADA, autism, and ․ curriculum assessment and intervention specific trainings.” Dkt. 86-22 at 136, 140–41 (Grimmett Dep. 135:13–21, 139:9–140:1); Dkt. 101-3 at 109–110 (Perry Dep. 108:20–109:7) (Q: “Are you familiar with DCPS's restraint and seclusion policies? A: They do a safety training, mostly for paraprofessionals, but there is a safety restraint training that paraprofessionals mostly take. And that's something that they did at River Terrace.”); id. at 22, 114–16 (Perry Dep. 21:9–21, 113:7–115:16) (describing various “mandatory” trainings). Plaintiffs maintain that this training was not sufficient, see Dkt. 92 at 31, but they point to no evidence DCPS had notice of any deficiencies. In light of this evidence, DCPS could not have known it was “substantially likely” that M.W. would be deprived of his right to an education. Pierce, 128 F. Supp. 3d at 278.

A.H. and C.U. each present a closer question, because their injuries occurred at River Terrace after M.W.’s injury and after the anonymous email from Perry. The email referred to “students getting hit by teachers” (which, as noted above, may have been a reference to M.W. a few months earlier), Dkt. 85-4 at 7, and it generally averred that “paraprofessionals lack training and knowledge about working with students with disabilities,” Dkt. 112-1 at 4, but it did not identify specific deficiencies in training relevant to A.H.’s or C.U.’s subsequent injuries. The email contains no mention, for example, of trainings on how to avoid improperly secluding students, or on how to avoid accidents when carrying wheelchair-bound students. Nor did the email alert DCPS to any issues with Spencer or C.U.’s aides. A.H.’s and C.U.’s injuries thus raise the question of what level of specificity is required to put a municipality on notice that “harm to a federally protected right is substantially likely” due to its deficient training program. Pierce, 128 F. Supp. 3d at 278.

The Court, however, need not resolve that question, because even assuming that this email placed DCPS on notice, Plaintiffs have insufficient evidence to prove the second element of deliberate indifference—a deliberate failure to act. The Chancellor's Office responded to the email within hours of receiving it and set up a visit with River Terrace teachers and staff to discuss their concerns. See Dkt. 85-4 at 7. After that visit, Kerri Larkin, then-Deputy Chief of Specialized Instruction at DCPS, “emailed the Concern[ed] Teachers, summarizing and listing future next steps.” Dkt. 85-4 at 4 (Larkin Decl. ¶ 19); see id. at 14 (summarizing meeting and next steps). These steps included “monthly in-person meetings at River Terrace with [the principal], River Terrace administrators, and members of the DCPS Specialized Instruction team. At these meetings, [they] discussed curriculum and assessment, technology and professional learning for staff, and staff concerns.” Id. at 4 (Larkin Decl. ¶ 20). Plaintiffs assert that the initial meeting was “unproductive,” Dkt. 92 at 33, but they fail to explain how DCPS's conduct deviated so substantially from its statutory obligations so as to evince deliberate indifference to the students’ rights.

As a result, the fact that A.H. and C.U. subsequently sustained injuries does not alter the analysis. The ADA and Rehabilitation Act prohibit deliberate indifference, but they do not require perfection. Courts, accordingly, have declined to find deliberate indifference where a school district “took action” to address a known risk of disability discrimination, even if its response did not immediately cure the problem. S.S. v. E. Kentucky Univ., 532 F.3d 445, 454–55 (6th Cir. 2008) (holding that school was entitled to summary judgment where it “responded to all of the alleged incidents” of abuse of disabled student, even where its responses were not effective). Even if DCPS's response at River Terrace was inadequate or negligent in some respects, something “more than negligen[ce]” or “bureaucratic slippage” is required to show deliberate indifference. Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). DCPS's actions, moreover, stand in stark contrast with cases where courts have found triable issues as to whether a school district acted with deliberate indifference. Summary judgment should be denied, for example, where there is an utter “lack of response” from the school “to the student's repeated complaints.” S.S., 532 F.3d at 455; see also K.C. ex rel. T.C. v. Bd. of Educ. of Marshall Cnty. Schs., 306 F. Supp. 3d 970, 979, 981 (W.D. Ky. 2018) (deliberate indifference is shown where “repeated reports went ignored and students continued to be abused or harassed”); Davis, 526 U.S. at 645–47, 654 (1999) (holding that school district exhibited deliberate indifference where it “made no effort whatsoever either to investigate or to put an end to the harassment”). The record here contains no similar evidence.

Finally, H.H.’s case presents the closest question as to whether his school had notice of a need for an accommodation. H.H.’s mother, Alemayhu, testified that she complained about Hagley prior to the incident on June 6, 2019. Dkt. 94-6 at 116 (Alemayhu Dep. 115:8–11) (“Q. When did you complain, before June 5th, 2019? A. Before the incident happened, yes, I remember.”). She had previously asked the school to “give [H.H.] another [physical] therapist” or for Hagley to “treat him better and to communicate, change her way of communication.” Dkt. 94-6 at 174 (Alemayhu Dep. 173:9–18); see also Dkt. 95-13 at 1 (Alemayhu Decl. ¶ 3) (“I complained to Mr. Archer, the SPED coordinator, about the way Ms. Hagley spoke down to my son, HH.”). Moreover, there is no evidence in the record that the school did anything in response to her complaints. Indeed, the District seemingly confirms that it did nothing in its statement of undisputed material facts. According to the District, “Dr. Hagley never received any communication from the staff department, the IEP coordinator, or the principal of WJEC that H.H.’s mother had complained about her treatment of H.H.” Dkt. 97 at 16 (Plfs’ Resp. to Def's SUMF ¶ 159).

The Court, however, is unpersuaded that Alemayhu's prior complaints were sufficiently detailed or serious to place Walker Jones on notice that it was “substantially likely” H.H. was being denied an education. “[S]ubjective complaints” indicating that a disabled student “d[oes] not like being in” a particular class, for example, are not sufficient to put a school on notice for purposes of assessing deliberate indifference. S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 266 (3d Cir. 2013) (holding that student's complaint that “she hated going to speech therapy” was not sufficient to place school on notice). Alemayhu's requests for a new therapist or for Hagley to “treat [H.H.] better” or her complaint that Hagley “spoke down to [her] son” are similarly vague and do not indicate that H.H. was being abused or denied physical therapy due to Hagley's inadequate training. Indeed, Plaintiffs appear to suggest the opposite: Alemayhu's declaration indicates that Hagley had not abused H.H. before the incident in June 2019. She attests that Hagley “escalated towards [H.H.] and eventually physically abused him.” Dkt. 95-13 at 1 (Alemayhu Decl. ¶ 7). And Plaintiffs assert in their opposition that, like J.D.’s parents’ complaints, Alemayhu's complaints to DCPS were limited to this instance of abuse and “did not even touch on the lack of specialized training.” Dkt. 92 at 17.

The Court, accordingly, will grant summary judgment to the District on Plaintiffs’ ADA and Rehabilitation Act claims.

C. Negligent Supervision Claim

Finally, Plaintiffs advance a negligent supervision claim against the District under D.C. common law. The elements of a negligent supervision claim are: “(1) the employee behaved in a dangerous or otherwise incompetent manner, (2) the employer knew or should have known [of] its employee's dangerous or incompetent behavior and (3) the employer, ‘armed with that actual or constructive knowledge, failed to adequately supervise the employee.’ ” Busby v. Cap. One, N.A., 772 F. Supp. 2d 268, 284 (D.D.C. 2011) (citation omitted) (quoting Brown v. Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001)). In other words, the plaintiff must prove “that the employer breached a duty to the plaintiff to use reasonable care in the supervision or retention of an employee which proximately caused harm to plaintiff.” Phelan v. City of Mount Rainier, 805 A.2d 930, 940 (D.C. 2002).

With respect to J.D. and M.W., there is no evidence that the District knew or should have known that any employee was “behav[ing] in a dangerous or otherwise incompetent manner.” Busby, 772 F. Supp. 2d at 284. Without proof of the District's actual of constructive knowledge, J.D.’s and M.W.’s negligent supervision claims cannot proceed.¹⁰ As for A.H. and C.U., the email from Perry to the Chancellor's office did not mention Spencer or C.U.’s aides, and, accordingly, may not have been sufficiently specific to place DCPS on notice of issues with their behavior. But even assuming the email provided sufficient notice, their claims cannot survive summary judgment because they do not have sufficient proof that, upon receiving this notice, the District “failed to adequately supervise the employee[s].” Id. Courts generally require expert testimony to determine whether the employer's supervision was “adequate” (that is, whether it fell below the standard of care). Expert testimony is particularly appropriate where the issues are “not within [ ] common, everyday experiences”—such as the standard for supervising and training employees who work with disabled students. Blair v. District of Columbia, 190 A.3d 212, 230 (D.C. 2018). To satisfy this requirement, an expert must offer more than “conclusory statements” or merely “declare that the District violated the national standard of care.” Id. Yet Plaintiffs’ expert on this topic, Paul Livelli, Ph.D., offers nothing more than a conclusory statement that, “in [his] opinion, DCPS fell short of the standard of care.” Dkt. 87-30 at 2 (Livelli Rep.). The bulk of his report is, instead, devoted to summarizing Plaintiffs’ allegations. Most fundamentally, however, it contains no explanation of what the standard of care requires, or how the District's actions, following receipt of this email, fell short. As explained above, the District responded immediately to Rickita Perry's email and met with River Terrace leaders and staff. Because Plaintiffs failed to establish the standard against “which the defendant's actions can be measured” in the first place, Blair, 190 A.3d at 230, no reasonable jury could conclude that the District's actions fell below that standard.

H.H., in contrast, has raised a triable issue (albeit only barely so) as to whether the District had notice that its contractor was behaving in an incompetent or dangerous manner. As noted above, Alemayhu testified that she complained to the District about Hagley, yet the record indicates that her complaints were met with only silence and inaction. Alemayhu's complaints were too vague and insubstantial to alert DCPS to risk that H.H. was being denied a free and appropriate public education for purposes of the ADA and Rehabilitation Act. The standard for negligent supervision, however, is more forgiving and, among other things, does not demand a showing that the District was alerted to a deprivation of H.H.’s right to an education. Plaintiffs must show only that DCPS “knew or should have known” that its employee was “dangerous or incompetent.” Busby, 772 F. Supp. 2d at 284. Moreover, expert testimony is not required where “common knowledge and everyday experience” would allow the jury to infer negligence. District of Columbia v. Tulin, 994 A.2d 788, 795 (D.C. 2010) (citation omitted). Thus, regardless of what standard applies to measure the adequacy of the District's response to the complaints from River Terrace, a reasonable juror could find that a complete failure to respond to complaints about Hagley was negligent. Id. What, if any, injury causally flowed from any such negligence is a question for another day.

The Court will, accordingly, deny summary judgment on H.H. and Alemayhu's negligent supervision claim.

CONCLUSION

The Court does not doubt that Plaintiffs have suffered significant harm as a result of the incidents at issue here. The questions in this case, however, are whether the District of Columbia violated Plaintiffs’ constitutional rights, discriminated against them based on their disabilities, or failed to supervise employees whom the District knew to be dangerous or incompetent. Although the Court concludes that the District cannot be held liable on these theories as to C.U., A.H., M.W., or J.D., and cannot be held liable for constitutional or statutory violations as to H.H., the Court's decision does not affect any right to recovery Plaintiffs might have against the individuals involved in the incidents. The Court expresses no view on that question.

For the reasons explained above, the District's motion for summary judgment, Dkt. 85, is GRANTED as to claims involving C.U., A.H., M.W., and J.D. and their mothers; GRANTED as to H.H. and Alemayhu's constitutional, ADA, and Rehabilitation Act claims; and DENIED as to H.H. and Alemayhu's negligent supervision claims under D.C. common law.

SO ORDERED.

FOOTNOTES

1.   The Second Amended Complaint repeats the same numbering after the first 51 paragraphs. To avoid confusion, the Court will refer to the second iteration of each numbered paragraph with the letter “a”—e.g., ¶ 1 and ¶ 1a.

2.   An IEP is a comprehensive written plan for students with special needs, developed jointly by the child's parents and the school district. It outlines the child's special educational needs and the specially designed instruction and services to be provided by the school system to meet those needs. 20 U.S.C. § 1414(d).

3.   Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record[.]”). Although Plaintiffs include a citation to one of these assertions, the citation is incomplete, and the Court cannot locate the referenced material. It is not the Court's role, moreover, to sift through the entire record in the hope of finding a needle in the haystack.

4.   Perry created an email address named “rtecconcernedteachers@gmail.com” to send the email anonymously, but she later came forward as the sender. Dkt. 85-4 at 7; Dkt. 101-3 at 65 (Perry Dep. 64:1–16).

5.   Although Plaintiffs initially sought injunctive relief, see Dkt. 21-1 at 29 (SAC) (Prayer for Relief), the District argues in its motion for summary judgment that Plaintiffs lack standing to pursue this form of relief. Because Plaintiffs failed to respond to this argument in their opposition, see Dkt. 92, the Court will treat the argument as conceded, see Crisman v. Dep't of Just., 332 F. Supp. 3d 139, 149 (D.D.C. 2018) (“Where a party fails to address arguments raised by the opposing party's motion for summary judgment, the Court may treat those arguments as conceded.”).

6.   To support this claim, Plaintiffs rely on their expert, Karyn Harvey, Ph.D., “who opined that all of the children display symptoms of post-traumatic stress disorder after being assaulted, secluded, restrained and injured.” Dkt. 92 at 51. Harvey, however, never evaluated any of the students, and only briefly “glimpse[d]” some of them in the background during video calls with their mothers. See Dkt. 93-4 at 54–56 (Harvey Dep. 53:19–55:20) (“Q: Okay. And so you never interviewed the children? A: I did not.”). Her conclusions are, instead, based “solely on what [their] parents told [her].” Id. at 56 (Harvey Dep. 55:1–20).

7.   The only potentially relevant expert Plaintiffs offer is Paul Livelli, Ph.D., whom Plaintiffs retained to “establish a standard of care for each school.” Dkt. 92 at 51. Livelli's report, however, does not pertain to Plaintiffs’ educations; it merely recites that River Terrace teachers “expressed concerns” about staff training, “care of students,” and “protocols associated with ․ reporting” incidents, and he concludes that “DCPS has a duty to exercise reasonable care to supervise and control the staff.” Dkt. 87-30 at 2–3 (Livelli Rep.). Livelli does not claim to have reviewed any minor Plaintiff's IEP or any other documents regarding their academic progress. See id. at 2.

8.   In the special education context, courts previously required plaintiffs seeking damages to show that the school district acted with “bad faith or gross misjudgment” in failing to provide an accommodation, which is a “more stringent standard” than “deliberate indifference.” Reid-Witt, 486 F. Supp. 3d at 8. The Supreme Court recently clarified, however, that “ADA and Rehabilitation Act claims based on educational services should be subject to the same standards that apply in other disability discrimination contexts,” and the Court observed that “ ‘a majority’ of the Courts of Appeals to have weighed in on the question ․ find the requirement to show ‘intentional discrimination’ satisfied by proof that the defendant acted with ‘deliberate indifference.’ ” A.J.T. ex rel. A.T. v. Osseo Area Sch., Indep. Sch. Dist. No. 279, 145 S. Ct. 1647, 1655 (2025). In light of A.J.T., and because the parties agree that deliberate indifference is the appropriate standard, the Court will apply that standard to Plaintiffs’ claims.

9.   Plaintiffs do not argue that DCPS should be held liable on a respondeat superior theory. See Dkt. 92 at 15–17. The Court, accordingly, will assess DCPS's direct liability under these statutes.

10.   Plaintiffs also argue that J.D.’s and C.U.’s claims can be proven under the doctrine of res ipsa loquitur, reasoning that “their injuries are the type that would not have occurred but for the negligence of their caretakers.” Dkt. 92 at 56. But their negligent supervision claim turns on the negligence of DCPS, not the negligence of the students’ caretakers.

RANDOLPH D. MOSS United States District Judge