Nguyen v. Government of the District of Columbia ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HUNG HANH THI NGUYEN, :
:
Plaintiff, :
:
v. : Civil Action No. 09-0189 (JR)
:
DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
MEMORANDUM
Hung Hanh Thi Nguyen seeks review of an independent
hearing officer’s decision that her son, H.N., is not disabled
within the meaning of the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. § 1400 et seq. The parties have filed
cross-motions for summary judgment. For the reasons that follow,
the defendants’ motion will be granted.
Background
H.N., who is seventeen years old, experienced
significant turbulence in the period leading up to the
independent officer’s hearing. On February 28, 2008, he entered
a plea to a charge of simple assault for striking his brother.
A.R. 99. He admitted to smoking up to five marijuana joints
daily, and he was suspended for a period of time for drug
possession on school grounds. Id. at 146. He also had been
suspended from school on four other occasions for various
reasons. Id. Even when not suspended, he often failed to attend
class. Id. He had been held back a grade in school due to his
poor performance. Id.At the due process hearing, conducted on October 21 and
29, 2008, Nguyen suggested that H.N. suffered from an emotional
disturbance and a specific learning disability, either of which
would qualify him as disabled within the meaning of IDEA and
therefore eligible for its benefits. See 20 U.S.C. § 1401(3).
The officer held that Nguyen failed to meet her burden. A.R. 3-
10. She now seeks judicial review of that decision. See 20
U.S.C. § 1415(i)(2) (authorizing such review).
Standard of Review
In reviewing an IDEA due process hearing, a district
court must determine whether a plaintiff is entitled to judgment
based on a preponderance of the evidence. See 20 U.S.C.
§ 1415(i)(2)(C)(iii). When neither party requests that the court
hear additional evidence before ruling on a motion for summary
judgment, the motion is to be construed as a “procedural vehicle
for asking [a] judge to decide the case on the basis of the
administrative record.” Herbin v. District of Columbia, 362 F.
Supp. 2d 254, 258 (D.D.C. 2005) (internal quotations and citation
omitted). The party challenging the hearing officer’s
determination bears the burden of convincing the court that it
was incorrect. See Angevine v. Smith, 959 F.2d 292, 295 (D.C.
Cir. 1992). Judicial review under IDEA is more rigorous than
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conventional agency review. See Reid v. District of Columbia,
401 F.3d 516, 521 (D.C. Cir. 2005). However, the preponderance
of the evidence standard “is by no means an invitation to the
courts to substitute their own notions of sound educational
policy for those of the school authorities which they review.”
Bd. of Ed. v. Rowley, 458 U.S. 176, 206 (1982). Thus, I must
conduct an independent review of the evidence, but in so doing I
must give “due weight” to the administrative proceedings. Id.Analysis
A. Emotional Disturbance
To establish that a student suffers from an emotional
disturbance within the meaning of IDEA, the student first must be
shown to have exhibited one of five symptoms:
(A) An inability to learn that cannot be
explained by intellectual, sensory, or health
factors;
(B) An inability to build or maintain
satisfactory interpersonal relationships with
peers and teachers;
(C) Inappropriate types of behavior or feelings
under normal circumstances;
(D) A general pervasive mood of unhappiness or
depression;
(E) A tendency to develop physical symptoms or
fears associated with personal or school
problems.
34 C.F.R. § 300.8(c)(4)(i). Additionally, the student must be
shown to have exhibited the symptom “over a long period of time”
and “to a marked degree” such that the child’s educational
performance is adversely affected. Id. The emotional
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disturbance classification “does not apply to children who are
socially maladjusted, unless it is determined that they have an
emotional disturbance” as defined above. Id. § 300.8(c)(4)(ii).
The hearing officer was presented with evidence that
H.N. suffered from depression and a mood disorder. See A.R. 5-8.
However, the officer held that he did not suffer an emotional
disturbance within the meaning of IDEA because “[t]he record is,
at best, inconclusive that [H.N.’s] emotional problems adversely
affect his educational performance.” Id. at 9. Instead, the
officer found that “[t]he factor most affecting [his] educational
performance is his non-attendance.” Id. The officer further
stated that “[n]o credible evidence was advanced that [his]
truancy is caused by an emotional disability.” Id.; see also id.
(noting that H.N. demonstrated a “pattern of avoiding
responsibilities” in non-school contexts).
Nguyen disputes the hearing officer’s conclusion. She
argues the officer failed to mention, and thus ignored, testimony
from several witnesses favorable to her. See Mot. 13-17. She
argues that the testimony of these witnesses shows that H.N.’s
behavioral problems, including his truancy, stem from his
depression.
Untangling cause and effect in the context of drug use,
misbehavior, and depression can be difficult. However, I cannot
find that plaintiff has sustained her burden to show that the
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officer’s conclusion is incorrect. Much of the testimony
plaintiff cites in her effort to establish a causal link between
H.N.’s behavioral problems and emotional disturbance is
speculative. See, e.g., Tuoy testimony, A.R. Tr. 10/21/08 at 28
(“His behavior was out of control, so his depression could be
affecting his ability to go to school.”); Harmon testimony, Id.
at 187 (“[He] has a difficult time waking up in the mornings,
sleeps excessively which is the classic syndrome of depression.
And I could — that seems to be contributing to his truancy.”);
Haddad testimony, A.R. Tr. 10/29/08 at 71 (“Yes, he’s depressed.
Yes, that might be a reason why he doesn’t want to be in our
school, but it is not atypical of many students in our
school . . . .”). In contrast, the link between failure to
attend school and failure to succeed academically is far more
clear; H.N. himself admits his poor attendance and drug use
negatively impacted his academic performance. See A.R. 146l; cf.
N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11, 12-13 (2d Cir.
2008) (finding that parents failed to meet their burden to show
student’s declining academic performance stemmed from emotional
disturbance instead of drug use).
B. Specific Learning Disability
A student has a specific learning disability under IDEA
if he or she has “a disorder in 1 or more of the basic
psychological processes involved in understanding or in using
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language, spoken or written, which disorder may manifest itself
in the imperfect ability to listen, think, speak, read, write,
spell, or do mathematical calculations.” 20 U.S.C. § 1401(30).
Under regulations pursuant to IDEA, a specific learning
disability may be found if a child “does not achieve adequately
for the child's age” in basic language or mathematics skills or
if the child fails “to meet age or State-approved grade-level
standards” in such skills. 34 C.F.R. § 300.309(a). In forming a
determination, a school district should “[d]raw upon information
from a variety of sources, including aptitude and achievement
tests, parent input, and teacher recommendations, as well as
information about the child's physical condition, social or
cultural background, and adaptive behavior.” Id.§ 300.306(c)(i).
Dr. Donnelly, who evaluated H.N., diagnosed him with a
general learning disorder. See A.R. 9; see also Booker
testimony, A.R. Tr. 10/21/08 at 49-50 (also suggesting H.N. has a
learning disability). However, the hearing officer found that
H.N.’s test scores showed that any disorder he suffered was not
sufficiently pronounced for him to meet the statutory criteria.
See A.R. 9. In testing performed by Dr. Donnelly, H.N.’s
achievement scores exceeded his aptitude scores in all but two
areas, and in those two remaining areas the difference was small.
See id. Small differences between achievement scores and
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intelligence scores are insufficient to support classification as
having specific learning disability. See Kruvant v. District of
Columbia, 99 F. App’x 232, 233 (D.C. Cir. 2004). Moreover, one
of H.N.’s teachers described him as “very bright.” A.R. 161
(noting few other teachers had significant contact with H.N.).
Dr. Booker suggested that H.N.’s “scattered skills” are at least
partially caused by his poor attendance. See Booker testimony,
A.R. 10/21/08 Tr. at 117-18. While there is some evidence that
H.N. suffers from a learning disability, I cannot say that Nguyen
has met her burden. The evidence is weak that H.N. has “a severe
discrepancy between achievement and intellectual ability,” and
failures in achievement are likely at least partially driven by
poor attendance.
C. Procedural Errors
Nguyen alleges that the hearing officer committed a
number of procedural errors. First, she alleges that the hearing
officer failed to perform a “fact-specific inquiry.” This
contention is plainly meritless, as the record shows the hearing
officer reviewed and considered an extensive record. See A.R. 3-
10. Second, Nguyen alleges that the hearing officer erred by
failing to grant a continuance to allow Dr. Donnelly to present
live testimony and by refusing to qualify a social worker offered
by plaintiff. Plaintiff has failed to show any prejudice that
resulted from these procedural decisions, however. See Lesesne
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v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006) (IDEA
claim based on procedural error “is viable only if those
procedural violations affected the student's substantive
rights”).
Conclusion
For the reasons set forth above, Nguyen’s motion for
summary judgment will be denied and the District of Columbia’s
motion for summary judgment will be granted. An appropriate
order accompanies this memorandum.
JAMES ROBERTSON
United States District Judge
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