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JACOBSEN v. DISTRICT OF COLUMBIA BD. OF EDUC.

April 28, 1983

Simon JACOBSEN, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF EDUCATION, et al., Defendants



The opinion of the court was delivered by: PENN

 The plaintiffs filed this action pursuant to the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. § 1401 et seq., the Fifth Amendment, 42 U.S.C. § 1983, and the decision and plan entered in Mills v. District of Columbia Board of Education, 348 F. Supp. 866 (D.D.C.1972). The case is now before the Court on cross motions for summary judgment.

 I

 Simon Jacobsen is a 17 year old specifically learning disabled child who had been placed and funded by the District of Columbia Public Schools (DCPS) at the Kingsbury Lab School (Kingsbury), a private special education school, from 1971 to 1981. At the end of the 1980 -- 1981 school year, it was apparent that Simon could not return to Kingsbury since he had completed the most advanced course at the school, and both his parents and DCPS undertook to find a new special education placement for him.

 In May 1981, an Individualized Education Program (IEP) was prepared which called for a residential placement. The IEP was prepared at Kingsbury without the participation of DCPS. On August 5, 1981 DCPS sent the parents a Notice of Proposed Change of Educational Program in which it proposed to place Simon in the Coolidge Senior High Learning Disabilities Program.

 On August 19, the parents appealed the proposed placement and requested a due process hearing. A hearing was scheduled for September 4, but was continued to October 19 at the request of the plaintiffs in order that the child could be independently evaluated. During the same month, Simon's parents placed him at Forman School, a private boarding special education school in Litchfield, Connecticut. The hearing scheduled for October 19 was continued to November 25 at the request of DCPS, and on November 25 the case was closed when counsel for the parents failed to appear at the due process hearing.

 A new hearing was scheduled for January 13, 1982. At that hearing, the parties concluded that the Kingsbury IEP was defective and it was agreed that a new IEP conference would be scheduled in one week and that DCPS would thereafter propose a placement within 20 working days. A new IEP was drafted on January 22 and DCPS advised counsel for the plaintiffs that a placement decision would be rendered on or before February 24. On February 24, 1982 DCPS advised the plaintiffs that it had "made an administrative decision to assume financial responsibility for Simon Jacobsen at the Forman School. Further recommendations will be rendered as deemed appropriate." See Defendants' Motion Exhibit 7.

 On July 21, 1982, DCPS informed plaintiffs that Simon had been accepted for evaluation for placement at the Chelsea School in Silver Spring, Maryland. The letter also advised the parents "that our review does not support a need for continued residential placement for Simon, and therefore, we will not assume any further financial responsibility for such placement." See Defendants' Motion Exhibit 8. Just a few days after sending the July 21 letter, DCPS sent the parents a Notice of Proposed Change in Educational Program advising them that DCPS was recommending the Coolidge Senior High Learning Disabilities Program as Simon's placement for the 1982 -- 1983 school year. *fn1" On August 1, 1982, plaintiffs' counsel advised DCPS that plaintiffs had appealed the decision to place Simon at Coolidge. Counsel also questioned the referral to Chelsea and the recommendation for Coolidge and noted that the parents' attempts to contact the Chelsea representative had been unsuccessful in that they had been advised that he was on vacation. Plaintiffs' counsel also advised DCPS that plaintiffs would expect funding at Forman pending a final determination on Simon's educational placement.

 By letter dated September 1, 1982, plaintiffs were informed that a due process hearing was scheduled for September 10. In another letter dated September 1, DCPS advised plaintiffs that another appointment had been scheduled for Simon at Chelsea School. Plaintiffs responded on September 3 noting their confusion over the DCPS referral to Chelsea in view of its recommendation for Coolidge. They also complained that DCPS was late in responding to their letters.

 The due process hearing was continued at plaintiffs' request; they requested the continuance because of the confusion concerning the referral of Simon to Chelsea and the recommendation for placement at Coolidge. Simon was interviewed at Chelsea between September 7 and 10, 1982, and accepted by that school by letter dated September 16. DCPS then sent a Notice of Proposed Change in Educational Program on September 15 recommending Simon's placement at Chelsea. Plaintiffs re-enrolled Simon at Forman on or about September 17.

 On October 15, a due process hearing was held to address the appropriateness of the DCPS proposed placements at Coolidge and Chelsea. Plaintiffs appeared and requested a continuance of the hearing so they could file the instant action in order to require DCPS to fund Simon at Forman for the 1982 -- 1983 school year based on their contention that Forman constituted Simon's "current" placement. See 20 U.S.C. § 1415(e)(3). The hearing officer granted a ten day continuance. This action was filed on October 18, but although it is captioned a complaint for declaratory and injunctive relief, a motion for preliminary injunction was not filed. Defendants answered the complaint on November 10 and plaintiffs' motion for summary judgment was filed on December 16, 1982. *fn2" DCPS filed a cross motion for summary judgment and the motions were heard on March 22, 1983.

 The final due process hearing was held on November 5, 1982. The hearing officer determined that the DCPS IEP dated January 1982 did not "conform to the requirements of the law" and directed DCPS to prepare a new IEP within 20 school days. The hearing officer refrained from deciding the appropriateness of either Coolidge or Chelsea due to a lack of sufficient information. Finally, he determined that DCPS had adopted the Forman School as Simon's placement. He directed DCPS to fund Simon at Forman until "it has placed Simon in an appropriate special education program." The hearing officer based this determination on his finding that Forman was Simon's present educational placement.

 II

 The parties agree that the sole issue presented in this case is whether DCPS is financially responsible for Simon's placement at Forman School for the 1982 -- 1983 school year, where it had agreed to fund the ...


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