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WIRTA v. DISTRICT OF COLUMBIA

May 5, 1994

CONSTANCE WIRTA, et al., Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.


ROBINSON


The opinion of the court was delivered by: DEBORAH A. ROBINSON

This action was referred to the undersigned United States Magistrate Judge for full case management. Currently pending for consideration by the undersigned are Plaintiff's Motion for Summary Judgment and Defendants' Motion to Dismiss.

 Plaintiff Constance Wirta is a minor child with disabilities, and is eligible for services under the Individuals With Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1461, and the Rehabilitation Act, 29 U.S.C. § 794. Complaint, P 2. Plaintiffs, in this action, allege that defendants violated the IDEA and the Rehabilitation Act through their failure to provide minor plaintiff a free appropriate education (Count I); to make findings of fact and conclusions of law based solely on the evidence presented during the due process hearing before defendants' hearing officer (Count II); to address the issues presented at the hearing (Count III); to properly allocate the burden of proof at the due process hearing (Count IV); and to order reimbursement of parent's expenses at the Oakland School, the minor plaintiff's "limited placement," for the 1992-93 school year (Count V). Plaintiffs' Motion for Preliminary Injunction, in which plaintiffs sought an order requiring defendants to fully fund the minor plaintiff's placement at the Oakland School during the pendency of this litigation, was granted. See February 24, 1994 Order of the trial court, adopting the February 3, 1994 Report and Recommendation of the undersigned.

 Background

 The District of Columbia Public Schools ("DCPS") has funded the placement of minor plaintiff in private schools since 1988, when she was found eligible for special education services. For the 1991-92 school year, DCPS funded and placed the minor plaintiff at the Lab School of Washington, a private day school for students with specific learning disabilities. Lab School personnel conducted a number of assessments of minor plaintiff, including academic testing, speech and language testing, psychological testing and an occupational therapy assessment. In June, 1992, the Lab School determined that it could no longer meet the minor plaintiff's educational needs. On July 29, 1992, her parents requested that DCPS conduct a hearing, and alleged that DCPS had failed to provide "an appropriate special education and Due Process of Law." The minor plaintiff was thereafter placed by her parents at the Oakland School, a private special education school in Boyd Tavern, Virginia, for the 1992-93 school year.

 DCPS did not conduct a due process hearing until January 14, 1993. The hearing officer, in his February 3, 1993 determination, found that DCPS had failed (1) to conduct the required triennial evaluation of minor plaintiff; (2) to conduct a "prompt review" of minor plaintiff's placement, notwithstanding reasonable notice of her parents' desire for a change in placement; and (3) to propose an appropriate special education program and placement for the 1992-93 school year.

 However, the hearing officer declined to make any finding with respect to the appropriateness of the minor plaintiff's placement at the Oakland School. The hearing officer found that the appropriateness of the Oakland School could not be determined without a DCPS reevaluation of the minor plaintiff, and determination of whether an alternative placement should be proposed. The hearing officer further found that the minor plaintiff was receiving special education and related services at the Oakland School, and that the school meets state standards. The hearing officer determined that the Oakland School could serve as the minor plaintiff's "limited placement," but declined to order that DCPS retroactively reimburse the parents of the minor plaintiff.

 In their motion for summary judgment, plaintiffs maintain that the hearing officer's decision to afford DCPS further opportunity to conduct additional evaluations of the minor plaintiff and to propose an alternative placement, and, in the interim, to defer consideration of whether the placement proposed by plaintiffs was appropriate, was improper. Additionally, plaintiffs maintain that the hearing officer's decision to not order retroactive reimbursement of minor plaintiff's educational and related expenses was improper. *fn1" In support of their motion, they rely upon an accompanying statement of material facts as to which they contend there is no genuine issue, which includes references to the portions of the record on which they rely to support the statement.

 Defendants oppose plaintiffs' motion on the ground that there is a genuine issue of material fact, particularly with respect to the appropriateness of a private, residential, special education placement for the minor plaintiff; however, their statement of material facts as to which they contend a genuine issue exists includes no references to the portions of the record on which they rely in support of their statement. In a separate motion to dismiss, defendants maintain that the hearing officer conducted the hearing in a fair and efficient manner; that his determination was supported by the evidence and was otherwise proper; and that this action should be remanded for further administrative proceedings, that is, determination of the appropriateness of minor plaintiff's placement at Oakland School. Defendants' motion is accompanied by a nearly one-inch thick stack of materials outside the pleadings. Plaintiffs, in their opposition to defendants' motion, maintain that defendants have not shown why further tests and assessments of minor plaintiff are necessary. Additionally, they maintain that defendants' motion is procedurally deficient in that defendants rely exclusively on matters outside the pleadings, yet their motion is not accompanied by a statement of material facts as to which there is no genuine issue.

 Discussion

 A moving party is entitled to summary judgment where the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In order to defeat a motion for summary judgment, the nonmoving party must present affirmative evidence sufficient to demonstrate the existence of a material fact as to which there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The undersigned finds that there is no genuine issue as to any material fact. Plaintiffs submit that there is no genuine issue with respect to the following facts: (1) that minor plaintiff is a child with disabilities and is eligible for special education services; (2) that defendants were required to conduct a triennial evaluation of minor plaintiff by November, 1991, but failed to do so; (3) that on July 29, 1992, the minor plaintiff's parents requested a due process hearing based upon defendants' failure to provide "an appropriate special education and Due Process of law"; (4) that defendants' hearing officer concluded that defendants failed to conduct a "prompt review" of minor plaintiff's placement and "failed to propose an appropriate special education program and placement for the 1992-93 school year"; and (5) between September, 1992 and May, 1993, minor plaintiff's grade equivalence scores on standardized tests have increased. Plaintiffs support their Statement of Material Facts as to Which There is No Genuine Issue with cites to the record; indeed, they principally rely upon the determination of defendants' hearing examiner.

 Significantly, defendants do not controvert any of the material facts set forth by plaintiffs in their statement. Instead, they maintain simply that there remains a genuine issue of material fact, "particularly regarding the appropriateness of a private residential special education placement" for minor plaintiff. However, neither that contention nor any of the remaining ones set forth in defendants' Statement of Material Facts as to Which There is a Genuine Issue includes any reference to any portion of the record which purportedly supports the contentions. The ...


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