Settles v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
D.S., )
)
Plaintiff, )
) Civil Action No. 09-599 (EGS)
v. )
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff D.S. seeks review of an administrative decision
denying her request for relief from the District of Columbia
Public Schools (“DCPS”) for alleged violations of the Individuals
with Disabilities Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., by
failing to provide her with a free appropriate public education
(“FAPE”). Pending before the Court are cross-motions for summary
judgment. Upon consideration of the motions, the responses and
replies thereto, the applicable law, the administrative record,
the arguments made by counsel during the motions hearing held on
March 25, 2010, and for the reasons stated below, the Court finds
that the hearing officer’s dismissal of D.S.’s October 2008 due
process complaint for lack of jurisdiction was erroneous and is
hereby REVERSED. Accordingly, plaintiff’s motion for summary
judgment is GRANTED, and defendant’s motion for summary judgment
is DENIED. Because the hearing officer failed to address or make
findings on the merits of the October 2008 due process complaint,
the Court concludes that it is necessary to REMAND the case to
the hearing officer for a determination as to whether there were
any IDEA violations and, if so, the amount of compensatory
education to which D.S. is entitled.
I. BACKGROUND
A. Plaintiff’s Attendance at Cardozo
Plaintiff, D.S., is a resident of the District of Columbia,
and, at the time this action was filed, a student at Benjamin
Cardozo Senior High School (“Cardozo”).1 D.S. qualifies for
special education and related services under the IDEA as a
“learning disabled” child. Def.’s Statement of Material Facts
(“Def.’s SMF”) ¶ 1. On February 2, 2007, during the 2006-2007
school year, a Multi-Disciplinary Team (“MDT”) met and developed
an individual education program (“IEP”) for D.S. (the “February
2007 IEP”). See infra Section II.A (discussing IEPs under the
IDEA). Plaintiff’s February 2007 IEP specified that she was to
receive 21 hours of specialized education, and was to be placed
in a combination general education and resource classroom setting
at Cardozo. Def.’s SMF ¶ 2.
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The Court was informed during the motions hearing held on
March 25, 2010, that D.S. has since been placed at the High Road
Academy, a specialized alternative education school for high
school–aged students facing broad-based learning disabilities, at
the District’s expense.
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Although D.S. continued her education at Cardozo during the
2007-2008 school year, her attendance dropped considerably.
Def.’s SMF ¶ 3. Indeed, during the fall semester of 2007-2008,
plaintiff had 118 unexcused absences. Def.’s SMF ¶ 3. D.S. was
often observed by her teachers “wander[ing] the halls” and
“hiding” in the building. See Pl.’s SMF ¶ 2; Administrative
Hearing Transcript (“Hearing Tr.”) at 23-24. In January 2008, an
MDT met to review and update plaintiff’s February 2007 IEP.
Def.’s SMF ¶ 4. Due to plaintiff’s poor attendance during the
Fall 2007 semester of school, however, the MDT found no evidence
that D.S. had mastered any of the goals set forth in her February
2007 IEP. Def.’s SMF ¶ 6. The MDT therefore decided that
plaintiff’s academic goals in her January 2008 IEP should remain
the same. Def.’s SMF ¶ 6.
On May 2, 2008, concerned by plaintiff’s attendance problems
and poor grades, plaintiff’s mother filed an administrative due
process complaint alleging that DCPS failed to re-evaluate
plaintiff, failed to review plaintiff’s IEP, and failed to turn
over plaintiff’s student records (“May 2008 due process
complaint”). Def.’s SMF ¶ 10. On May 28, 2008, a hearing
officer issued a decision (the “May 2008 HOD”), which ordered
DCPS to fund independent evaluations for plaintiff in several
areas, including: a psychological evaluation, a speech and
language evaluation, and a vision screening. Def.’s SMF ¶ 11;
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Pl.’s SMF ¶ 5. The hearing officer also ordered DPCS to convene
an MDT/IEP meeting “no later than one month prior to the start of
the 2008/2009 school year” to review the evaluations, revise
plaintiff’s IEP as necessary, and discuss and determine
compensatory education. Pl.’s SMF ¶ 5.
Plaintiff received a psycho-educational evaluation and a
speech and language evaluation in July 2008. Def.’s SMF ¶¶ 13-
14. These evaluations revealed that D.S. was performing almost
eight years below in the areas of Broad Reading, Broad Math, and
Broad Written Language. Pl.’s SMF ¶ 9. The evaluations also
found a mild clinical risk in the areas of anxiety, depression,
aggression, and attention deficit hyperactivity disorder. Pl.’s
SMF ¶ 9.
After receiving these evaluations, an MDT meeting was
convened on September 2, 2008 to review and revise D.S.’s IEP.
Def.’s SMF ¶ 15. During this meeting, the MDT (i) revised
plaintiff’s IEP to include counseling services; (ii) developed a
compensatory education plan for plaintiff; and (iii) recommended
that plaintiff receive a Functional Behavioral Assessment.
Def.’s SMF ¶¶ 15-16. The Team rejected, however, plaintiff’s
mother’s request for an independent clinical psychological
evaluation of D.S.
During the September MDT/IEP meeting, plaintiff’s mother
also shared her reservations about allowing D.S. to return to
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Cardozo, informing the MDT that she had not yet enrolled her
daughter for the 2008-2009 school year. See Pl.’s SMF ¶ 15;
Def.’s SMF ¶ 20. Nevertheless, in mid-October, plaintiff’s
mother re-enrolled D.S. at Cardozo. Def.’s SMF ¶ 22. D.S.,
however, continued to avoid attending class, and routinely
wandered the hallways of the school and hid from her teachers.
See Def.’s SMF ¶¶ 25-27; see also Hearing Tr. at 48 (discussing
how D.S. “manage[d] to somehow be in the school and actually not
go to class”).
B. Plaintiff’s Due Process Complaint & Administrative
Hearing
On October 7, 2008, one week prior to formally enrolling at
Cardozo, plaintiff’s mother filed a second administrative due
process complaint (“October 2008 due process complaint”)
challenging the September 2008 IEP. Specifically, plaintiff’s
mother alleged that DCPS had failed to: (i) develop an
appropriate IEP for D.S.; (ii) place D.S. in a proper school;
(iii) properly implement the D.S.’s IEP; and (iv) evaluate D.S.
in all areas of suspected disability. See Administrative Record
(“AR”) 12-20. The October 2008 due process complaint sought,
inter alia, reasonable compensatory education, placement at an
appropriate school, an independent clinical psychological
evaluation, and revision of D.S.’s IEP. See AR 17-18.2
2
During the motions hearing held on March 25, 2010, the
Court was also informed that through the diligent efforts of
plaintiff’s mother, D.S. has now received the majority of relief
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A hearing on the October 2008 due process complaint was held
on November 10, 2008, during which plaintiff’s mother and an
educational advocate testified on D.S.’s behalf. See generally
Hearing Tr. A hearing officer’s decision was issued on November
20, 2008 (the “November 2008 HOD”), which dismissed the October
2008 due process complaint with prejudice. AR 2-7. In her
dismissal order, the hearing officer found that she “lacked
jurisdiction” over the due process complaint because D.S. was not
enrolled in any District of Columbia school at the time her
complaint was filed. AR 6. The Hearing Officer also found that
D.S.’s lack of enrollment made it “physically impossible for
Cardozo to revise [plaintiff’s] IEP, implement her IEP, evaluate
her in any area of suspected ability, or determine appropriate
placement.” AR 6. Finally, the hearing officer concluded that
the due process complaint was “frivolous” because “[c]ounsel knew
or should have known that th[e] Hearing Officer would have no
jurisdiction.” AR at 6.
Less than one week after the decision was rendered, on
November 26, 2008, D.S.’s mother filed a motion for
reconsideration. See AR 176-187. The hearing officer, however,
did not respond to the motion. See Pl.’s Compl. ¶ 21 (“Hearing
requested in her October 2008 due process complaint.
Specifically, (i) an independent clinical psychological
evaluation has been performed; (ii) plaintiff’s IEP has been
revised; and (iii) plaintiff received an appropriate educational
placement at High Road Academy. The only relief still requested
by plaintiff, therefore, is compensatory education.
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Officer Raskin failed to respond to the parent’s motion for
reconsideration within the allotted thirty-day time line and as a
result the parent brings the instant action.”).
C. This Action
Accordingly, on March 31, 2009, D.S. filed suit in this
Court alleging violations of the IDEA. Plaintiff’s three-count
complaint asks the Court to “reverse the November 2008 HOD” and
find that “DCPS owes an affirmative duty to provide FAPE despite
enrollment status.” See Compl. at 9. On July 24, 2009,
plaintiff filed a motion for summary judgment seeking reversal of
the November 2008 HOD; on August 21, 2009, the District filed a
cross-motion for summary judgment asking the Court to affirm the
November 2008 HOD. These motions are now ripe for determination
by the Court.
II. STATUTORY FRAMEWORK AND LEGAL STANDARD
A. The IDEA
The IDEA was enacted to “ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further
education, employment, and independent living.” 20 U.S.C.
§ 1400(d)(1)(A). It requires all states and the District of
Columbia to provide resident children with disabilities a FAPE
designed to meet their unique needs. Id. § 1412(a)(1).
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The IDEA attempts to guarantee children with disabilities a
FAPE by requiring states and the District of Columbia to
institute a variety of detailed procedures. “‘[T]he primary
vehicle for implementing’” the goals of the statute “‘is the
[IEP], which the [IDEA] mandates for each child.’” Harris v.
District of Columbia, 561 F. Supp. 2d 63, 65 (D.D.C. 2008)
(citing Honig v. Doe, 484 U.S. 305, 311-12 (1988)). An IEP is a
written document that describes the impact of the child’s
disabilities, annual “academic and functional” goals for the
child, and the forms of individualized education and support that
will be provided to the child in view of the child’s disabilities
and in order to aid the child’s developmental and academic
progress. See 20 U.S.C. § 1414(d)(1)(A). Because the IEP must
be “tailored to the unique needs” of each child, Bd. of Educ. v.
Rowley, 458 U.S. 176, 181 (1982), it must be regularly revised in
response to new information regarding the child's performance,
behavior, and disabilities. See 20 U.S.C. §§ 1414(b)-(c).
Furthermore, the school district must take care to generate that
new information as needed, through assessments and observations
of the child. See id. §§ 1414(c)(1)-(2). To be sufficient to
confer a FAPE upon a given child, an IEP must be “reasonably
calculated to enable the child to receive educational benefits.”
Rowley, 458 U.S. at 207.
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B. Standard of Review
Under the IDEA, a party aggrieved by a hearing officer’s
decision may bring a civil action challenging it in state or
federal court. 20 U.S.C. § 1415(i)(2)(A). A court “(i) shall
receive the records of the administrative proceedings; (ii) shall
hear additional evidence at the request of a party; and (iii)
basing its decision on the preponderance of the evidence, shall
grant such relief as [it] determines is appropriate.” Id.§ 1415(i)(2)(c). If neither party introduces additional
evidence, a motion for summary judgment acts as a motion for
judgment based on the evidence in the record. Brown ex rel. E.M.
v. District of Columbia, 568 F. Supp. 2d 44, 50 (D.D.C. 2008).
The party challenging the administrative decision carries the
burden of “persuading the court that the hearing officer was
wrong.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516,
521 (D.C. Cir. 2005) (internal quotation marks omitted). A court
must give “‘due weight’” to the hearing officer's determinations
and “may not substitute its own notions of sound educational
policy for those of the school authorities.” S.S. v. Howard Road
Acad., 585 F. Supp. 2d 56, 63-64 (D.D.C. 2008) (quoting Rowley,
458 U.S. at 206).
Less deference, however, is to be accorded to the hearing
officer’s decision than would be the case at a conventional
administrative proceeding. Reid, 401 F.3d at 521. Indeed, the
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Court is “obligated by IDEA to ensure that relief set forth in
the administrative award was ‘appropriate’[.]” Id. The Court,
therefore, may not simply “rely on the hearing officer’s exercise
of discretion.” Id. “Where the administrative record lacks
pertinent findings and where neither party requested
consideration of additional evidence, the [Court] may determine
that the appropriate relief is a remand to the hearing officer
for further proceedings.” Stanton v. District of Columbia, No.
09-988, 2010 U.S. Dist. LEXIS 6609, at *10 (D.D.C. Jan. 27, 2010)
(citing Reid, 401 F.3d at 526) (internal quotation marks
omitted).
III. ANALYSIS
Plaintiff seeks reversal of the November 2008 HOD. As
discussed above, the hearing officer found that she “lacked
jurisdiction” over the October 2008 due process complaint because
D.S. was not enrolled in any District of Columbia school at the
time the due process complaint was filed. AR at 6. She also
determined that plaintiff’s lack of enrollment made it
“physically impossible” for Cardozo to revise plaintiff’s IEP,
implement her IEP, evaluate her in any area of suspected ability,
or determine an appropriate educational placement. AR at 6. In
addition, based on her finding of jurisdictional defect, the
hearing officer found that the October 2008 due process complaint
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was “frivolous.” AR at 6. Plaintiff argues that this decision
was rendered in error, and this Court agrees.
As the District acknowledges, DCPS is required to “make a
[FAPE] available to each child with a disability, ages three to
twenty-two, who resides in, or is a ward of, the District.” D.C.
Mun. Regs. tit. 5, § 3002.1(a); see also Def.’s Cross-Mot. at 16
(agreeing with plaintiff’s assertion that “DCPS is required to
provide FAPE to disabled students who reside in the District”).
The obligation to provide a FAPE, therefore, is triggered by a
child’s residency in the District – not the child’s enrollment in
a public school in the District. Indeed, regardless of a child’s
enrollment status, DCPS is required to “ensure that procedures
are implemented to identify, locate, and evaluate all children
with disabilities residing in the District who are in need of
special education and related services, including children with
disabilities attending private schools,” id. § 3002.1(d), and
must make a FAPE available “to any child with a disability who
needs special education and related services, including children
who are suspended or expelled, and highly mobile children[.]”
Id. § 3002.1(e).
Because DCPS has an ongoing, affirmative obligation to
locate children with disabilities residing in the District and to
provide them with a FAPE, a child’s school enrollment status has
never been a condition precedent to the filing of a due process
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complaint. To the contrary, the IDEA affords parents the
opportunity to file administrative complaints and request due
process hearings “with respect to any matter relating to the
identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education to
such child.” 20 U.S.C. § 1415(b)(6)(A); see also D.C. Mun. Regs.
tit. 5, § 3029.1 (same).
The Court, therefore, concludes that the hearing officer
erred in ruling that she lacked jurisdiction to consider the
October 2008 due process complaint based on D.S.’s enrollment
status. Nothing in IDEA or the case law interpreting its
administrative review procedures suggests such a limitation, and
it was error for the hearing officer to dismiss D.S.’s complaint
on those grounds. The hearing officer also erred, therefore, in
finding that plaintiff’s complaint was “frivolous.”
While conceding that “the hearing officer’s conclusion that
Plaintiff’s non-enrollment in a D.C. Public School meant that the
hearing officer had no jurisdiction to hear the case, was in
error,” Def.’s Cross-Mot. at 15 (emphasis added), the District
nevertheless urges the Court to uphold the November 2008 HOD.
See Def.’s Cross-Mot. at 12 (admitting that the Hearing Officer
relied on “two inapplicable statutes,” but arguing that “the
hearing officer’s decision to dismiss Plaintiff’s due process
complaint was the correct one”). Specifically, the District
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contends that summary judgment should be entered in its favor
because D.S. failed to adduce sufficient evidence to prove, by a
preponderance of the evidence, that her IEP was inappropriate,
was not being implemented, and that Cardozo was an inappropriate
placement for her. See Def.’s Cross-Mot. at 16-19 (analyzing how
plaintiff failed to meet her burden of proof).
Lacking “‘the expertise of the hearing officer and school
officials responsible for the child’s education,’” Def.’s Mot. at
14 (quoting Lyons v. Smith, 829 F. Supp. 414, 418 (D.D.C. 1993)),
the Court concludes that the District’s motion for summary
judgment must be DENIED because the November 2008 HOD fails to
address the merits of plaintiff’s due process complaint.
Consequently, “a remand for further consideration of the
evidence, and for further findings of fact and conclusions of
law, is the only vehicle by which review consistent with the
applicable statutory scheme can be accomplished.” Options Pub.
Charter Sch. v. Howe, 512 F. Supp. 2d 55, 57-58 (D.D.C. 2007);
see also, e.g., Stanton, 2010 U.S. Dist. LEXIS 6609 (remanding
case to hearing officer for supplementation of the record and for
a determination on compensatory education); Peak v. District of
Columbia, 526 F. Supp. 2d 32, 33 (D.D.C. 2007) (remanding case to
hearing officer, where the hearing officer made no findings as to
whether DCPS denied the child a FAPE); Goldstrom v. District of
Columbia, 319 F. Supp. 2d 5, 6 (D.D.C. 2004) (same).
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Accordingly, the November 2008 HOD is hereby REVERSED, and
the action is REMANDED to the hearing officer for a determination
on the merits. The hearing officer is directed to determine
whether D.S. was denied a FAPE and, if so, the amount of
compensatory education to which she is entitled.
IV. CONCLUSION
For the reasons set forth above, the Court REVERSES the
November 2008 HOD and REMANDS this action to the hearing officer
for consideration on the merits. Plaintiff’s motion for summary
judgment is hereby GRANTED, and defendant’s motion for summary
judgment is DENIED.
SIGNED: Emmet G. Sullivan
United States District Court Judge
March 30, 2010
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