officer "failed to appropriately place the burden of proof on the school system." Plaintiffs observed that DCPS offered no testimony at the hearing, and maintained that DCPS did not meet its burden of demonstrating that its actions were proper. Defendants never responded to plaintiffs' request for reconsideration. The hearing officer denied plaintiffs' request for reconsideration.
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.
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.
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 undersigned will accordingly deem the facts identified by plaintiffs admitted.
The undersigned also finds that plaintiffs have demonstrated that they are entitled to judgment as a matter of law. The IDEA permits "any party aggrieved by the findings and decision" rendered during administrative proceedings to "bring a civil action" in state or federal court without regard to the amount in controversy. 20 U.S.C. § 1415(e)(2). The reviewing court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." Id.
The Supreme Court, in addressing the role of a reviewing court in an action brought under the IDEA, stated that
a court's inquiry in suits brought under § 1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?
Board of Education of Hendrick Hudson Central School District v. Rowley (hereinafter "Rowley "), 458 U.S. 176, 206-07, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982) (footnotes omitted); see Kerkam v. McKenzie, 274 U.S. App. D.C. 139, 862 F.2d 884, 886 (D.C. Cir. 1988); Kroot v. District of Columbia, 800 F. Supp. 976, 980 (D.D.C. 1992).
In this case, defendants' own hearing officer determined that defendants had not satisfied the procedural requirements of the IDEA. Specifically, he found that defendants had (1) failed to conduct the required triennial evaluation of minor plaintiff; (2) failed to conduct a "prompt review" of minor plaintiff's placement after the parents' July 29, 1992 hearing request; (3) delayed in "making available a free, appropriate public education" to minor plaintiff; and (4) failed to propose an appropriate special education program and placement for the 1992-93 school year. Hearing Officer's Determination (Plaintiffs' Exhibit 1) at 6-12. The first prong of the inquiry prescribed by the Supreme Court in Rowley clearly must be resolved against defendants.
The second prong of the inquiry, adapted to address the decision at issue here,
must also be resolved against defendants. The undersigned finds that the hearing officer's decision that he could not consider the appropriateness of minor plaintiff's placement at the Oakland School "without having DCPS complete the reevaluation and then determining whether an alternative placement needs to be proposed," Hearing Officer's Determination at 9, is unsupported by applicable law. The Supreme Court has held that the IDEA authorizes reimbursement of the educational and related expenses of a child covered by the Act where the school system failed to propose a placement in accordance with the Act's requirements. School Committee of the Town of Burlington, Massachusetts v. Department of Education of Massachusetts, (hereinafter "Burlington"), 471 U.S. 359, 369, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985). The authority on which the hearing officer relied in support of the contrary proposition
predates Burlington and, in any event, is not dispositive of the issue which was presented below. Defendants have offered no authority which permits a school system a second opportunity to conduct evaluations and propose an alternative placement where its failure to do so in the first instance violated the requirements of the Act. Nor have defendants offered authority which entitles a school district to attempt to corroborate the results of tests performed by others. Indeed, "nowhere in the [IDEA] regulations is there a requirement that school personnel must themselves perform the evaluation." Carroll v. Capalbo, 563 F. Supp. 1053, 1058 (D.R.I. 1983); see Hudson v. Wilson, 828 F.2d 1059, 1065 (4th Cir. 1987) (the IDEA "clearly permits parents to obtain private testing and nowhere implies that local schools must corroborate private results before using them.").
Finally, where a public school system has defaulted on its obligations under the IDEA, a private school placement is "proper under the Act" if the education provided by said school is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 176. Here, it is undisputed that minor plaintiff's grade equivalence scores on standardized tests of reading, spelling and math have increased, see Plaintiffs' Exhibit 8, and that some of her academic gains have been characterized as "significant." Id. Additionally, she "is gaining confidence in herself" and "is showing a stronger desire to cooperate." Id. For these reasons, it cannot be disputed that the Oakland School is an appropriate placement for minor plaintiff.
For the foregoing reasons, and upon consideration of the entire record herein, it is, this 5th day of May, 1994,
RECOMMENDED that Plaintiffs' Motion for Summary Judgment be GRANTED; and it is
FURTHER RECOMMENDED that Defendants' Motion to Dismiss be DENIED.
DEBORAH A. ROBINSON
UNITED STATES MAGISTRATE JUDGE
DATE May 25, 1994