Blackman v. District of Columbia ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
MIKEISHA BLACKMAN, et al., )
)
Petitioners, )
)
v. ) Civil Action No. 97-1629 (PLF)
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DISTRICT OF COLUMBIA, et al., )
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Defendants. )
___________________________________ )
MEMORANDUM OPINION AND ORDER
This spring, a hearing officer in the District of Columbia’s Office of the State
Superintendent of Education ordered the District of Columbia Public Schools (“DCPS”) to hold
an Individualized Education Program (“IEP”) team meeting to review and revise petitioner
Jayshawn Douglas’ educational services. DCPS held a meeting, but forcibly excluded Douglas’
attorney and failed to properly implement the recommendations in his various assessments, in
clear violation of the Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C.
§ 1414(d)(1)(B)(vi).
Petitioner filed this motion seeking a preliminary injunction to require DCPS to
convene a proper IEP team meeting with his counsel present. DCPS ultimately did hold a proper
IEP team meeting, correcting their previous failures. This motion was referred to the Special
Master who recommends denying the motion. Douglas filed objections to the Special Master’s
Report, to which the District of Columbia filed a response. Upon careful consideration of the
parties’ papers, the Special Master’s Report and Recommendation, and the entire record, the
Court will deny Douglas’ motion for a preliminary injunction as moot because he has already
received his requested relief. 1
I. BACKGROUND
The Special Master and the parties generally agree on the relevant facts. Douglas
is an eighteen-year-old student with disabilities who is entitled to special education services
under the Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C. § 1400 et seq.; Mot.
at 2. 2 After an administrative due process hearing, a hearing officer ordered DCPS to, among
other things, convene a meeting of Douglas’ Individualized Education Program (“IEP”) team by
May 23, 2014 to: (1) review his various assessments; (2) determine whether additional
assessments are warranted; (3) review and revise his IEP; and (4) discuss and determine an
appropriate location of services. Mot. at 5. 3
Douglas agreed to extend the date of the IEP meeting to May 27, 2014, but was
unable to attend after his daughter fell ill. Mot. at 5; Rep. at 3. Douglas instructed Steve Nabors,
1
The papers considered in connection with the pending motion include: petitioner’s
motion for preliminary injunction (“Mot.”) [Dkt. No. 2468]; defendant’s opposition to
petitioner’s motion for a preliminary injunction (“Opp.”) [Dkt. No. 2470]; the Special Master’s
Report and Recommendation (“Rep.”) [Dkt. No. 2479]; petitioner’s objection to the Special
Master’s Report and Recommendation (“Obj.”) [Dkt. No. 2483]; and defendant’s response to
petitioner’s objections (“Obj. Opp.”) [Dkt. No. 2486].
2
In a separate case, this Court found that DCPS denied Douglas an educational
placement for the fall semester of 2013 and issued a “stay-put” injunction requiring DCPS to
maintain Douglas’ placement until the resolution of the administrative proceedings at issue here.
See Douglas v. District of Columbia, 4 F. Supp. 3d 1 (D.D.C. 2013); Mot. at 2.
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An IEP team consists of teachers of the student, a representative of DCPS, an
individual capable of interpreting the evaluation results, and, “at the discretion of the parent or
agency, other individuals who have knowledge or special expertise regarding the child.” 20
U.S.C. § 1414(d)(1)(B)(vi). Because Douglas is an adult, the discretion to determine who “has
knowledge or special expertise” is his. 20 U.S.C. § 1415(m).
2
his attorney and a member of the IEP team, to attend the meeting in his absence. Mot. at 5.
DCPS, however, refused to admit Mr. Nabors to the meeting. Id. DCPS’s attorney then
instructed the case compliance manager to call the Metropolitan Police Department, who
removed Mr. Nabors from the premises. Id. The meeting then proceeded without Douglas or his
attorney. Id. 4 Afterwards, DCPS even refused to provide Mr. Nabors with Douglas’ educational
records, although they did send an email “requesting a follow-up meeting to ensure Mr. Douglas’
participation in his educational program.” Rep. at 8. In the meantime, an IEP deemed legal by
the District was developed from the May 27 meeting. Id. at 5.
Shortly thereafter, Douglas filed this motion for a preliminary injunction. In
response, DCPS contacted Douglas directly, without the knowledge of his counsel, and offered
him an “alternative compensatory education package,” i.e., an Apple iPad, if he attended an IEP
meeting scheduled for June 5, 2014. Rep. at 4. DCPS did not inform Mr. Nabors of that
4
Counsel for Mr. Douglas described what happened as follows:
At the onset of the IFP meeting, Mr. Nabors informed the team that
Mr. Douglas could not attend because he was with his daughter,
but that Mr. Douglas had instructed him to proceed in his absence
or to request a rescheduling of the meeting. In response, DCPS’
attorney, Mr. [Daniel] McCall, instructed DCPS’ case compliance
manager to exclude Mr. Nabors and proceed with the IEP meeting.
In response, Mr. Nabors read aloud the language from the HOD
and stated that he was a member of the IEP team. DCPS’ attorney
replied, “No, you’re not.” DCPS’ attorney then stated to the case
compliance manager, “you know what to do.” The case
compliance manager then called the school’s Metropolitan Police
Department (“MPD”) resource officer. After MPD came to the
room and Mr. Nabors was instructed to leave by school personnel,
he complied with these instructions and was escorted to the main
office. DCPS then proceeded to have the IEP meeting without Mr.
Douglas or his counsel. However, DCPS counsel remained on the
phone for the remainder of the meeting.
Mot. at 5-6.
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meeting. Id. After learning of the planned meeting from his client, Mr. Nabors alerted the
Special Master who arranged for the IEP meeting to be rescheduled to June 12, 2014. Id. at 6.
Mr. Nabors, the Special Master, and Douglas attended the meeting. Id. at 6-7. Douglas’ IEP
was substantially amended as follows:
1. Douglas’ disability classification was changed from “Other Health
Impairment” to include “Specific Learning Disability,” and modified to
“Multiple Disabilities,” as had been recommended by his assessments;
2. The IEP was changed to reflect that Douglas’ attention deficit and
hyperactivity disorder “adversely affects his educational performance,”
instead of Douglas’ truancy, which had previously been listed;
3. Specific test scores, as opposed to broad ranges, were included;
4. A recommendation for an increase in behavior support services was added;
5. Douglas’ classroom and statewide assessment accommodations were
increased to require flexible scheduling, test administration over several days,
test administration at a convenient time of day for student, and breaks during
subtests as necessary; and
6. Douglas’ compensatory education award was increased to 130 hours of one-
on-one tutoring beginning in the 2014-2015 school year.
Rep. at 6-7.
The Special Master issued her recommendation soon after and concluded that
DCPS had complied with the February 24, 2014 hearing officer decision (“HOD”). Rep. at 9.
The Special Master recommended that Douglas’ motion be denied, noting that, despite the
“egregious” and “indefensible” conduct of counsel for DCPS, “the injunctive process is not the
appropriate forum to address the ethical behavior of DCPS employees, substantive effects of the
IEP, or failures in internal administrative procedures.” Id. at 8-9.
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II. DISCUSSION
A. Petitioner’s Motion for a Preliminary Injunction
Douglas seeks an injunction ordering DCPS to implement the provisions of the
February 24, 2014 HOD, which ordered DCPS to “conduct a battery of assessments and
‘convene a meeting of student’s IEP team.’” Mot. at 1, 5. Neither party disputes that the proper
assessments eventually were conducted. Douglas, however, argues that the District failed to
properly convene a meeting of his IEP team when DCPS forcibly excluded his attorney, who had
represented Mr. Douglas for eight months, from the May meeting. Id. at 8. The Court agrees.
Because Douglas designated Mr. Nabors to attend the meeting as an “individual who ha[s]
knowledge or special expertise regarding the child,” Mr. Nabors is a member of the IEP team.
See 20 U.S.C. § 1414(d)(1)(B)(vi). The “IEP team” therefore did not meet as required by the
HOD when DCPS barred Mr. Nabors from attending. The Court therefore disagrees with the
Special Master’s conclusion that “an IEP meeting was convened on May 27th.” Rep. at 9. The
May 27, 2014 meeting was a nullity. See, e.g., M.L. v. Fed. Way Sch. Dist., 387 F.3d 1101, 1115
(9th Cir. 2004) (holding that an IEP team that excludes “the individuals identified by Congress as
necessary participants” is “illegally constituted”).
A meeting of the IEP team did occur, however, on June 12, 2014, although DCPS
missed the deadline imposed by the HOD. Rep. at 6-7. As noted, supra at 4, Douglas’ IEP was
substantially amended as a result of that meeting. Douglas’ motion therefore is moot because he
has already received the relief he requests: a proper meeting of the IEP team that correctly
implements the recommendations of Douglas’ assessments. See Rep. at 6-7 (describing the
corrections and changes made to Douglas’ IEP at the June 12 meeting); see also Monzillo v.
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Biller, 735 F.2d 1456, 1459 (D.C. Cir. 1984) (“In general, a case becomes moot where the
activities for which an injunction is sought have already occurred and cannot be undone.”).
Douglas nevertheless argues that he is entitled to relief because DCPS failed to
implement the HOD within the allotted time frame. Obj. at 4-7. He also argues that an
injunction is still necessary because DCPS has not updated Douglas’ IEP to reflect the changes
made at the June 12, 2014 IEP meeting. Id. at 7. An injunction, however, would not be a proper
remedy for any harm caused by DCPS’s delay in updating the IEP. See 11A CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.1
(2d ed. 1995) (“A preliminary injunction usually will be denied if it appears that the applicant
has an adequate alternative remedy in the form of money damages or other relief.”). And it
appears that DCPS has now corrected the IEP to properly reflect the increase in Douglas’
services as a result of the June 12 IEP team meeting. Obj. Opp. Ex. 1.
B. Sanctions and Attorneys’ Fees
The Court agrees with the Special Master that defendants’ conduct in this case
was “totally indefensible” and “egregious.” Rep. at 8. Enlisting the police to forcibly remove a
disabled student’s attorney from a meeting concerning that student’s special education needs —
a meeting that the attorney has a statutory right to attend — is deplorable, particularly when a
lawyer for the District of Columbia directed that such action be undertaken. Moreover, this
Court is deeply concerned that DCPS later approached petitioner, who DCPS knew was
represented by counsel, ex parte and offered him an iPad in what appears to have been an effort
to bribe him to attend an IEP team meeting alone and avoid the student’s attorney because DCPS
“staff was frustrated by the counsel’s tactics.” Rep. at 8-9. DCPS therefore will be ordered to
show cause why sanctions under 28 U.S.C. § 1927 or this Court’s inherent authority, in the form
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of attorneys’ fees and costs, should not be awarded for petitioner’s counsel’s time and effort in
this case, and why appropriate sanctions including, but not limited to, possibly the referral to the
Office of Bar Counsel, should not be imposed on DCPS Assistant General Counsel Daniel
McCall.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that [Dkt. No. 2468] petitioner Jayshawn Douglas’ motion for a
preliminary injunction is DENIED AS MOOT; it is
FURTHER ORDERED that [Dkt. No. 2479] the Special Master’s Report and
Recommendation is ADOPTED in part and REJECTED in part; it is
FURTHER ORDERED that [Dkt. No. 2483] petitioner’s objections to the Special
Master’s Report and Recommendation are OVERRULED IN PART and SUSTAINED IN
PART; and it is
FURTHER ORDERED that, on or before November 28, 2014, the defendant shall
show cause in writing why sanctions, in the form of attorneys’ fees and costs and appropriate
sanctions with respect to Daniel McCall, should not be imposed. The plaintiff shall file a
response on or before December 12, 2014. The defendant shall file a reply, if any, on or before
December 19, 2014.
SO ORDERED.
/s/____________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: November 4, 2014
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