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PARKER v. DISTRICT OF COLUMBIA

July 29, 1983

Pamela PARKER, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, District Judge.

 The plaintiffs filed this action pursuant to the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. § 1400 et seq., to obtain a declaratory judgment, injunctive relief, and damages, as the result of the alleged failure of the District of Columbia Public School (DCPS) to provide Pamela Parker (Pamela) with a free appropriate public education for school year 1978-1979, and to make provisions for providing her with such an education for school year 1979-1980. Pamela attended Kingsbury Lab School (Kingsbury) in 1978-1979 at her parents expense. This case was filed in July 1979 and in September, the Court granted plaintiffs motion for a preliminary injunction and directed DCPS to place and fund Pamela at Kingsbury pending further order of the Court. See Memorandum Order filed September 10, 1979 and Order filed September 12, 1979. Pursuant to that Order, DCPS placed and funded Pamela at Kingsbury for the 1979-1980 school year.

 The only remaining issue is whether the plaintiffs are entitled to damages and/or reimbursement for the 1978-1979 school year and whether they are entitled to attorneys fees. The case is now before the Court on plaintiffs' motion for summary judgment and the defendants' cross motion for partial summary judgment.

 I

 Briefly, the undisputed facts are as follows: At the time this action was filed, Pamela was eleven years old and had been diagnosed as severely learning disabled with severe emotional problems. In December 1977, she was attending special education classes four days a week at the Whittier Learning Center and regular classes one day a week at Shepard School. Both schools were operated by DCPS. At that time, her parents became very concerned about her schooling and they notified DCPS officials that Pamela was having severe emotional and educational problems including a lack of academic progress and fear of going to school. The parents made arrangements to have Pamela evaluated at Kingsbury and at Children's Hospital and thereafter requested that she be placed at Kingsbury for the 1978-1979 school year. Pamela had attended summer school at Kingsbury in 1977 and in 1978. DCPS proposed Whittier-Shepard for the 1978-1979 school year and the parents requested a due process hearing. The hearing was held on July 10, 1978, and the Hearing Officer filed his determination (1978 Determination) on July 28, 1978. DCPS had proposed that Pamela remain at Whittier but increase her participation in the mainstream up to two hours per day as stated in the Individual Education Program (IEP).

 The Hearing Officer found that Pamela was handicapped, that she required special education, and that the IEP failed "to address the emotional component associated with Pamela's deficiencies." 1978 Determination at 15. He noted that DCPS and the IEP failed to recognize the importance of Pamela's emotional problem. Id. He concluded that DCPS "has failed to adequately recognize this component, has not assessed it properly, and must include it as an integral part of Pamela's educational program." Id. The Hearing Officer also found that "as far as the overall program . . . at [Whittier] is concerned, . . . the weight of the evidence and testimony is in favor of [DCPS]." Id. at 16. The Hearing Officer then went on to find that the notion of mainstreaming Pamela and the "least restrictive environment" are "valid components in special education programs" but that the record before him revealed that "the attempt to mainstream Pamela this past year [1977-1978] has not been successful and in fact has been harmful to her, perhaps even intensifying her extant emotional and academic difficulties." Id. He "concluded and determined that similar mainstreaming efforts for Pamela will similarly be unsuccessful." Id. Finally, he directed that "[DCPS] must produce an alternative proposal with respect to mainstreaming Pamela." Id.

 DCPS never contacted the plaintiffs from the date of the 1978 Determination to the beginning of the school year in September 1978. Parker Affidavit, para. 6. In early September 1978, plaintiffs wrote DCPS and in the second week of September, DCPS responded assuring them that Pamela would "be taken care of" but failing to address the substance, timing or location of her placement. Id. para. 8. DCPS did not send a new proposed program until March 1979 and at that time proposed a program virtually the same as that proposed in June 1978. Id. para. 9.

 A second due process hearing was held on April 17, 1979, and the same Hearing Officer who conducted the initial hearing, filed his Determination on June 11, 1979 (1979 Determination). The plaintiffs state that they placed Pamela in Kingsbury during the 1978-1979 school year because she had no other appropriate placement and they were concerned that DCPS was not going to act.

 Significantly, the Hearing Officer found that DCPS failed to follow through on the 1978 Determination, "particularly in time for Pamela to have an appropriate placement by the opening of school last fall [1978]." 1979 Determination at 6. He also found that, "it is determined that when Pamela started her attendance at [Kingsbury], there was no program developed by [DCPS] to adequately meet her educational needs since the current IEP is determined to be inappropriate." Id. at 7.

 II

 Although the EAHCA is not intended generally to provide for a money award for plaintiffs, there are rare occasions when such relief is proper and warranted. The EAHCA, specifically 20 U.S.C. § 1415(e)(2), provides that a party aggrieved by the administrative determination may file a civil suit in any state court of competent jurisdiction or in a district court of the United States and that the court "shall grant such relief as the court determines is appropriate." In most cases brought before it, the Court, where the plaintiffs prevailed and relief was appropriate, has ordered DCPS to place and fund a child in a particular school or program. In at least one case, the Court has found that upon an appropriate showing, it could direct that a child receive what amounts to "compensatory education" when a child has already reached her 22nd birthday. See Bennett v. District of Columbia Board of Education, No. 82-0224 (D DC April 22, 1983). And in the latter case, the Court noted that compensatory education is virtually indistinguishable from tuition reimbursement, which is what the plaintiffs seek here. Id., slip op at 3.

 The EAHCA allows the Court to grant tuition reimbursements if it determines that such relief is appropriate. See Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981); Parks v. Pavkovic, 536 F. Supp. 296 (ND Ill.1982). Such relief, however, is usually given only under exceptional circumstances such as when to allow the child to remain in her prior placement would result in serious risks to the child's health or where the defendants have acted in bad faith. Anderson, supra, 658 F.2d at 1213-1214. Moreover, this Court agrees with the determination of the above courts that such relief is not foreclosed by the Eleventh Amendment to the Constitution. See Bennett v. District of Columbia Board of Education, supra, slip op. at 3-5. Of course, any award is in effect an award against the District of Columbia.

 The facts in this case support an award for tuition reimbursement. Pamela had been in a DCPS placement at Whittier Learning Center and Shepard School for the 1977-1978 school year. Her parents requested a change in placement and recommended that she be placed in Kingsbury, where she had attended summer school, for the 1978-1979 school year. DCPS rejected that recommendation and advised the parents of its intention to return her to Whittier - Shepard. Up to this point, Pamela's "present educational placement" was Whittier - Shepard, and normally she would be required to remain there pending the completion of the proceedings. See 20 U.S.C. § 1415(e)(3) and 34 CFR § 300.513. But Section 1415(e)(3) contemplates that the plaintiffs will be accorded due process and ...


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