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SMITH v. HENSON

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


February 27, 1992

FRANKLIN L. SMITH, Superintendent, D.C. Public Schools, Plaintiff,
v.
ERNEST HENSON, DENISE TUCCI, CYNTHIA FORD, SAMUEL HINKLE, LUPE MCDOWELL, HOPE MARINDIN, THOMAS GMUER, GLORIA SAID, WALTER HITCHCOCK, HAROLD AND JANNIE ROHER, Defendants.

The opinion of the court was delivered by: HARRIS

MEMORANDUM ORDER

 This matter is before the Court on defendants' various motions to dismiss or, in the alternative, for summary judgment. On consideration of the entire record, the Court grants the defendants' motions. *fn1" "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56." Fed. R. Civ. P. 52(a). While the Court wishes to utilize that rule to avoid further delay in resolving the issues, largely in light of the multiplicity of parties the Court describes its holdings briefly.

 Plaintiff, the Superintendent of the District of Columbia Public Schools (DCPS), filed this action seeking review of administrative decisions under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400-1485 (1990 & Supp. 1991). Defendants are the parents or guardians of minor, learning disabled children. Pursuant to the IDEA, DCPS placed and funded the child of each defendant at the Lab School, a private, special education school, for the 1988-89 academic year. The Lab School developed and implemented an Individual Educational Program (IEP) for each student as the IDEA requires. Id. §§ 1412(4), 1414(a)(5).

 In June 1989, DCPS notified each defendant of its intention to change his or her child's placement. DCPS indicated that it would implement the IEPs developed at the Lab School at Buchanan Secondary School, which is public. The notices informed defendants of their statutory right to request a due process hearing to challenge the change in placement. The notice further provided that defendants had to exercise that right within 15 days and that DCPS would treat failure to respond within that time as a waiver of the right. The defendants each objected to the proposed placement at Buchanan. A due process hearing before an impartial hearing officer was held for each student.

 The hearing officers found that DCPS failed to participate in developing the students' IEPs as required by applicable regulations. *fn2" Specifically, DCPS failed to ensure that a representative attended the students' IEP meetings at the Lab School. That procedural error rendered the IEPs invalid to serve as a basis for changing the students' placement. Therefore, the hearing officers did not allow DCPS to present evidence that Buchanan constituted an appropriate placement for each of the students under the IDEA. Plaintiff challenges the exclusion of its evidence at the due process hearings. *fn3" Plaintiff maintains that the hearing officers' conclusion that DCPS could not review the Lab School's IEPs and implement them at Buchanan was in error. *fn4"

  The hearing officers also found that the notice of the proposed change in placement violated the defendants' due process rights. The notice improperly imposed a 15-day time limit in which to request a due process hearing, although the IDEA and the applicable regulations do not provide for any time limit. DCPS claims that the hearing officers' findings on that point were in error because the officers did not determine whether the time limit prejudiced the defendants. Furthermore, DCPS claims that the notices complied with the applicable regulations. *fn5"

 This action is moot with regard to defendants Ford, Hinkle, Gmuer, Said, Hitchcock, and Roher. Those defendants have graduated or no longer require special education. Therefore, the dispute is not capable of repetition yet evading review with regard to them. Cf. Squillacote v. Jenkins, 290 App. D.C. 137, 935 F.2d 303, 308 (D.C. Cir. 1991). Accordingly, the Court grants the motion to dismiss with regard to those defendants. *fn6"

 The motions to dismiss are granted as to the remaining defendants. *fn7" The hearing officers' conclusions were not improper, therefore plaintiff's complaint fails to state a claim for which relief may be granted. Section 1414(a)(5) of the IDEA and the regulations contained in 34 C.F.R. 300.344 and 300.347(b)(2) require DCPS to attend IEP meetings conducted at private schools. *fn8" The hearing officers properly concluded that DCPS did not comply with the procedural safeguards of the IDEA when it failed to participate in developing the students' IEPs. That procedural defect rendered DCPS's IEP and its proposed placement invalid. See Board of Education of the Hendrik Hudson School District v. Rowley, 458 U.S. 176, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1985). The hearing officers did not err in excluding evidence regarding the appropriateness of placement at Buchanan. Accordingly, the Court grants defendants' motions to dismiss as to counts one and two.

 The notices that DCPS sent to the defendants violated their due process rights under the IDEA. Plaintiff relies on Leonard v. McKenzie, 276 App. D.C. 239, 869 F.2d 1558 (D.C. Cir. 1989), for the proposition that the hearing officer should have determined whether the notices caused any prejudice to the defendants' rights. In Leonard, DCPS inadvertently sent an inaccurate notice and then corrected its error within two weeks. Id. at 1562. The Leonard court stressed that the mistake did not violate any procedural requirements and that it did not affect the parents' rights adversely. Id. at 1562 n.3. In this case, the notices attempted to impose a time limit on the right to request a due process hearing that the IDEA and the regulations do not contain. *fn9" A misleading notice of that kind violates the procedural rights afforded by the IDEA regardless of any actual prejudice. The fact that the defendants in this case protected their rights by requesting a hearing does not obviate the violation. Other parents might be unaware of their right to request a hearing at any time and might not seek a hearing after 15 days based on the notice. Thus, the hearing officers did not err in finding that the notices violated defendants' due process rights without considering the question of prejudice. The Court grants defendants' motions to dismiss with regard to counts three and four.

 Accordingly, it hereby is

 ORDERED, that the defendants' motions to dismiss are granted.

 SO ORDERED.

 Stanley S. Harris

 United States District Judge

 Date: FEB 27 1992


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