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DIAMOND v. MCKENZIE

January 22, 1985

Daniel DIAMOND, et al., Plaintiffs,
v.
Floretta McKENZIE, 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 the Handicapped Act (EHA), 20 U.S.C. § 1400 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985(3). Plaintiffs seek to have the Court enter a permanent injunction requiring the District of Columbia Public Schools (DCPS) to place and fund the minor plaintiff Daniel Diamond (Daniel), at the Vanguard School in Lake Wales, Florida. The case is now before the Court on defendants' motion to dismiss *fn1" and after a trial on the merits. *fn2"

 I

 The underlying facts are as follows: Daniel is a 17 year old severely learning disabled and severely emotionally disturbed child and as such he is a qualified handicapped child as defined by the EHA, 20 U.S.C. § 1401(1). From September 1980 through June 1983, he attended the Lab School of Washington, formerly the Kingsbury Lab School. His placement at that school was funded by DCPS. *fn3" In August 1983, DCPS referred Daniel to three day placements, the Chelsea School, the Accotink Academy, and the Frost School. Eventually, all three schools refused to accept Daniel.

 Shortly thereafter, DCPS requested the hearing officer to continue the November 18 hearing on the grounds that "the placement of Aug. 31, 1983 for Chelsea School has been revoked." The hearing officer denied the request on November 15 noting that the proposal for placement at the Wilson Resource Program had not been withdrawn.

 A hearing was held on November 18, to determine whether the DCPS proposed placement, the Wilson Resource Program, was an appropriate placement. The hearing officer filed her determination on December 6, 1983. December Determination. The hearing officer observed that DCPS did not present any testimony regarding the Wilson Resource Program and that accordingly, DCPS failed to meet its burden of proof. Significantly, the hearing officer concluded that, "it is unclear why DCPS even chose to proceed given the fact that it is still in the process of referring Daniel for placement . . . and given the fact that these [referrals] are Level VI Placements [full-time city wide or private schools] and that the Wilson program is a Level II [Resource Room -- on site direct service to students in a regular school or career center] placement." Id. at 4. The hearing officer then went on to direct DCPS to consider a residential placement. In doing so, she noted that the DCPS Confidential Report, prepared by Dr. McElroy, recommended placement in a "fulltime special education placement in a structured program for learning disabled adolescence with secondary emotional difficulties" and that the Lab School's progress report recommended "mandatory placement in a residential facility". The hearing officer also observed that she had "requested the written submissions on residential placement because so much of the testimony presented on behalf of the parent focused on the need for residential placement and yet DCPS had not addressed that issue." She noted that although she could not recommend a specific placement, the decision "can give DCPS direction with regard to the elements of an appropriate placement, and the consideration of residential placement is such an element." Id. at 4. She further observed that DCPS had stated that "one or more of several events must occur in order to refer a case to the Residential Review Committee (Committee), i.e. , a signed written report by a professional, or a signed written report by the DCPS' multidisciplinary team." The hearing officer correctly concluded that those requirements are not contained in the Rules of the District of Columbia Board of Education Board Rules. The hearing officer remanded the case back to DCPS with the direction that on or before January 5, 1984, it was to propose another placement, "consistent with this decision". Id. at 5. She further stated that "in the event residential placement is not recommended, DCPS must include with the Notice of Proposed Placement, the report of the Residential Review Committee indicating, at a minimum, the criteria used to determine eligibility for residential placement". On January 5, 1984, DCPS wrote Mrs. Diamond over the signature of Ms. Van Buren and advised her that "in compliance with the Hearing Officer's Determination of 11-18-83, Daniel's case was presented to the Residential Review Committee 12-20-83. The Residential Review Committee found no justification for residential placement for your son." Also included with that letter was a Notice of Proposed Placement proposing Daniel's placement at the Leary School. Plaintiffs filed this action on January 23, 1984. Plaintiffs had unilaterally placed Daniel in the Vanguard School at Lake Wales, Florida, in September 1983.

 II

 Prior to addressing the merits, the Court must address the motion to dismiss filed by the defendants.

 The defendants contend that this case should be dismissed because the plaintiffs are not "aggrieved" by the findings of the hearing officer or the state education agency, see EHA 20 U.S.C. § 1415(e)(2), and because the plaintiffs have failed to exhaust their administrative remedies. These arguments must be rejected.

 First, the plaintiffs had requested the hearing officer to recommend a residential placement, but the hearing officer declined to do so, apparently because she felt that such a recommendation was beyond her power. It was obvious, however, that she felt that DCPS should consider a residential placement. In her determination, she observed that "although this decision cannot recommend a specific placement, it can give DCPS direction with regard to the elements of an appropriate placement, and the consideration of residential placement is such an element." December Determination at 4. In making those comments, the hearing officer noted that she "had requested the written submissions on residential placement because so much of the testimony presented on behalf of the parent focused on the need for residential placement and yet DCPS had not addressed that issue." Id. at 4. In remanding the matter back to DCPS, the hearing officer directed the school system to propose a placement on or before January 5, 1984, and, "in the event residential placement is not recommended, DCPS must include with the Notice of Proposed Placement, the report of the Residential Review Committee indicating, at a minimum, the criteria used to determine eligibility for residential placement." Id. at 5.

 Thus, it is clear that the hearing officer understood the plaintiffs to be seeking a residential placement but that she nevertheless declined to direct such a placement because she concluded that she did not have the power to do so. Clearly then the plaintiffs are aggrieved as that term is used in the EHA and thus they are properly before this Court.

 Second, the contention that the plaintiffs have failed to exhaust their administrative remedies must also be rejected. Defendants had originally proposed placement in the Wilson Resource Program with an alternative placement at Chelsea School. See Notice of Proposed Change in Education Program dated August 31, 1983. After the hearing officer scheduled a hearing on the appropriateness of the above two proposed placements, subsequent to her rejection of defendants' claim that Mrs. Diamond had been uncooperative, DCPS requested a postponement of the hearing on the grounds that the placement of August 31, 1983, for Chelsea had been "revoked". See Van Buren Memorandum dated November 13, 1983. In her memorandum, Ms. Van Buren noted that referrals had been made to the Leary School. The hearing officer denied the request noting that DCPS had also proposed the Wilson Resource Program, a matter which would be addressed at the hearing. The hearing, which was to address the DCPS proposed placement at the Wilson Resource Program, went forward on November 18, 1983, but DCPS presented nothing in support of that placement. Indeed, the evidence before the hearing officer reflected that Daniel required a residential placement. When the hearing officer entered the December Determination, she properly required DCPS to consider a residential placement and to set forth the criteria used in considering that issue if DCPS concluded that a residential placement was not necessary. DCPS rejected the request for residential placement but did not set forth the criteria used to consider the placement or the ...


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