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PATSEL v. DISTRICT OF COLUMBIA BD. OF EDUC.

September 15, 1981

Renee PATSEL, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF EDUCATION, et al., Defendants



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION AND ORDER

This is an action by a learning disabled child, Renee Patsel, and her parents, David and Mary Patsel, seeking an order to compel defendant District of Columbia Board of Education and the individual defendants sued in their official capacities to hold a due process hearing for the purpose of determining whether defendants' proposed placement of the child at the Prospect Learning Center is appropriate to meet Renee's unique educational needs.

 Initially a temporary restraining order had been requested by the plaintiffs. Due to the exigencies involved, including commencement of the school year on the very date of the hearing, the parties agreed that the application for preliminary relief be converted into a hearing on the merits. The necessity of formal responsive pleadings was, therefore, waived and the motion for a temporary restraining order has been deemed withdrawn as moot in light of the full hearing.

 Jurisdiction exists pursuant to P.L. 96-486 (Dec. 1, 1980), 28 U.S.C. § 1343 (Supp. III 1979), the Education for All Handicapped Children Act ("EHA"), 20 U.S.C. § 1401 et seq. (1976 and Supp. III 1979), and the Rehabilitation Act of 1973, as amended by section 504 of the Rehabilitation, Comprehensive Services and Developmental Disabilities Act of 1978, 29 U.S.C. § 794 (Supp. III 1979).

 It is uncontroverted that Renee Patsel is a learning disabled eleven year old child who has been receiving special education for several years. During school year 1979-80, she attended the St. Maurice School, a private special education school. Her tuition was paid by the District of Columbia Public Schools ("DCPS"), the state education agency responsible under the EHA for providing special education to handicapped children, pursuant to 20 U.S.C. § 1401(7) (1976). For the school year 1980-81, DCPS, with the concurrence of the Patsels, moved Renee to the Prospect Learning Center ("Prospect").

 As Mrs. Patsel states in her affidavit, however, "We made the wrong decision. Shortly after Renee started attending Prospect, we noticed her regressing in the educational area and more importantly, emotionally." Although the parent did not at first express her concerns to the school staff, during the second half of the school year she communicated to the school personnel her concerns, as well as those concerns of a psychologist who had worked with Renee for years.

 On May 18, 1981, Mrs. Patsel met with the staff of the Prospect Learning Center for the annual development of an individual education program ("IEP") for the school year 1981-82. This plan was to outline the components of an appropriate education for Renee. At that meeting Mrs. Patsel again reiterated with intensity, she avers, the concerns she had expressed earlier concerning the appropriateness of Renee's attendance at Prospect.

 Because the Patsels disagreed with the placement, they retained counsel to represent them in what is referenced as a "due process hearing." On July 7, 1981, counsel requested that due process hearing on the issue of whether defendants' proposed educational placement was appropriate to meet their child's needs.

 The hearing was scheduled for August 11, 1981, and the hearing officer sent a "Notice to Attend Due Process Hearing" to Azalee Harrison, the director of Prospect. On August 3, 1981, plaintiffs' counsel, for logistical reasons, asked that the hearing be postponed. A letter confirming the postponement was sent by defendants' representative to plaintiffs' counsel asking for a new date for the hearing. Nonetheless, on August 11, plaintiffs' counsel received a letter which, in effect, cancelled the proposed hearing. That letter informed counsel that since the defendants were "unaware" of the Patsels' desire to change Renee's program, no formal evaluation procedure had been initiated for the child. Accordingly, the letter continued, "the public schools will not be ready, nor are they required to participate at a hearing until they are given an opportunity to complete the formal evaluation/placement process." After several telephone conversations between the parties, plaintiffs' counsel received a letter again denying the right to a hearing.

 The plaintiffs' request to the court is forthright: they ask that defendants provide a "due process" hearing in which their objections to Renee's continued placement at the Prospect Learning Center would be fully ventilated. In support of their demand for a hearing, plaintiffs note that the Education for All Handicapped Children Act and the regulations promulgated thereunder require that the parents or guardian of a child be afforded a hearing whenever they have a complaint about the school district's proposal to change or refusal to change a child's educational placement, or any matter concerning the child's placement. *fn1"

 Plaintiffs further claim that without the hearing they are being denied due process guarantees mandated by the Rehabilitation Act of 1973, as amended by the Rehabilitation, Comprehensive Services and Developmental Disabilities Act of 1978. *fn2"

 The defendants, on the other hand, urging dismissal of the cause, contend the Court is without jurisdiction to order the hearing since the administrative process has not been exhausted. The appropriate procedure, the defendants assert, is essentially as ...


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