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ZEARLEY v. ACKERMAN

September 27, 2000

THOMAS AND JEAN ZEARLEY, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF IAN ZEARLEY, A MINOR, ET AL., PLAINTIFFS,
V.
ARLENE ACKERMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

This matter comes before the Court on the Motion To Dismiss Or, In The Alternative, For Summary Judgment filed by defendants Arlene Ackerman and the District of Columbia ("Defs.' Motion"), and the Motion For Partial Summary Judgment filed by plaintiffs Thomas and Jean Zearley, individually and as parents and next friends of Ian Zearley ("Pls.' Motion"). Upon consideration of those motions, the oppositions and replies thereto, the entire record herein and the relevant law, the Court denies defendants' motion in its entirety, and denies in part and grants in part plaintiffs' motion.

1. BACKGROUND

This is an action alleging violations of the Individuals with Disabilities Education Act, 42 U.S.C. § 1400 et seq. ("IDEA") and 42 U.S.C. § 1983. Ian Zearley is a nineteen year-old student in the District of Columbia who has been identified as disabled and whose education is therefore governed by the provisions of IDEA. (Plaintiffs' Statement of Material Facts As To Which No Genuine Issue Exists at ¶ 8 ("Pls.' Statement ¶ __"); Defs.' Motion at 2.) On July 11, 1997, Ian's diagnosis was changed from "specifically learning disabled" to "seriously emotionally disturbed" and DCPS began to evaluate the recommendation that he be moved to a 24-hour residential placement. (Pls.' Statement ¶ 24; Defs.' Motion at 2.) By the beginning of the 1997-98 school year, DCPS had issued neither notice of a new placement nor notice that Ian should continue in his current placement. (Pls.' Statement ¶ 31; Defs.' Motion Exh. 12.) The Zearleys, therefore, enrolled Ian at Little Keswick School in Virginia, and took personal financial responsibility for the yearly tuition of almost $60,000. (Pls.' Statement ¶¶ 32, 36; Defs.' Motion at 3.)

While the Zearleys were informed orally that DCPS would accept and fund Ian's placement at Little Keswick, DCPS never issued a formal placement notice for 1997-1998 and paid Ian's tuition bills sporadically and incompletely. (Pls.' Statement ¶¶ 41, 42; Defs.' Motion at 7; Defendants' Opposition To Plaintiffs' Motion For Partial Summary Judgment at 2 ("Defs.' Opp.").) In addition, DCPS never completed an interstate compact placement request form, as required by Virginia law. (Pls.' Statement ¶ 50; Defs.' Motion at 7.) On May 26, 1998, Little Keswick informed the Zearleys that unless DCPS completed the two page placement request form, Ian could not be enrolled at Little Keswick in the fall of 1998. (Pls.' Statement ¶ 50; Defs.' Motion at 7.) Furthermore, should DCPS not give written notice of Ian's fall placement, and officially accept financial responsibility, the Zearleys would be responsible for Ian's tuition. (Pls.' Statement ¶ 43; Defs' Motion at 7.) DCPS failed to complete the interstate placement form or provide any notice of Ian's fall placement before the start of the school year on September 5, 1998. (Pls.' Statement ¶¶ 50, 48, 54; Defs.' Motion at 9.)

On September 8, 1998, the Zearleys filed a complaint in this court and a motion for a temporary restraining order and preliminary injunction requiring DCPS to fill out the interstate compact placement request form. (Cplt. at ¶¶ 23-28.) The complaint also requested a declaratory judgment stating that DCPS had violated Ian's IDEA rights, permanent injunctive relief requiring DCPS to comply with IDEA and damages under 42 U.S.C. § 1983 for the violations to plaintiffs civil rights. (Cplt. at ¶¶ 21-33.) On September 14, 1998, the Zearleys filed a request to convene a due process hearing to address DCPS's failure to propose a placement for Ian for the 1998-99 year. (Pls.' Statement ¶ 61; Defs.' Motion at 9.) On September 24, 1998, this court issued a temporary restraining order requiring DCPS to complete the placement request form. DCPS subsequently completed the form and plaintiffs withdrew their request for a preliminary injunction.

During the course of the litigation, DCPS has reimbursed the Zearleys for their out-of-pocket expenses associated with the tuition for Little Keswick, paid Ian's tuition in full and issued a 1998-99 placement order for Ian. (Pls' Statement ¶¶ 42, 48, 57; Defs.' Mot. at 2.) However, DCPS has been sanctioned twice thus far in the litigation: first, for its failure to waive service of process under FRCP 4(d)(2) and second, for its failure to provide appropriate discovery responses. (Order Granting Motion For an Award of Costs and Fees; Order Granting Motion For Discovery Sanctions.) In addition, Ian left Little Keswick in November of 1999 due to worsening emotional problems. (Pls.' Statement ¶ 62; Defs.' Reply to Opp. at 2.) While the Zearleys have requested a meeting to revise his IEP, no such meeting had, as of March 2000, been scheduled. (Pls.' Opp. at 12, Exh. T & U.)

On February 29, 2000, defendants filed a motion to dismiss or, in the alternative, for summary judgment. On March 8, 2000, plaintiffs filed a motion for partial summary judgment. As explained in more detail below, the Court denies defendants' motion in its entirety, and denies in part and grants in part plaintiffs' motion for partial summary judgment.

2. ANALYSIS

There are four issues raised by the parties' cross-motions for dispositive judgment. These issues are (1) whether plaintiffs' IDEA claims are moot; (2) whether any material disputed facts remain regarding plaintiffs' IDEA claims; (3) whether alleged IDEA violations can constitute a claim for relief under 42 U.S.C. § 1983; and (4) whether defendants and plaintiffs have met their summary judgment burden with regards to plaintiffs' section 1983 claim.

1. Mootness

Defendants argue that since DCPS has complied with the requirements of IDEA by agreeing to Ian's placement and paying his educational costs, plaintiffs' IDEA claims are moot, and defendants are entitled to judgment as a matter of law. (Memorandum Of Points And Authorities In Support Of Defendants' Motion To Dismiss Or, In The Alternative, For Summary Judgment at 8 ("Defs.' Memo.").) Plaintiffs argue that an IDEA proceeding is a short-term action that falls under the doctrinal exception to mootness for action that is "capable of repetition yet evading review." (Plaintiffs' Memorandum of Points and Authorities In Opposition To Defendants' Motion To Dismiss Or, In The Alternative, For Summary Judgment at 12 ("Pls.' Memo.").)

The issue of mootness arises "when the issues presented are no longer `live' or the parties lack a cognizable interest in the outcome." United States Parole Commission v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). In such a case, a court has no jurisdiction because Article III of the Constitution limits federal judicial power to resolution of cases and controversies. The doctrine of "capable of repetition yet evading review" is an exception to mootness for cases where the party can demonstrate that "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again." United States v. Weston, 194 F.3d 145 (D.C.Cir. 1999).

The challenged action here is DCPS' failure to comply with its IDEA obligations to Ian Zearley over the 1997-1998 school year. It is well established that violations of IDEA satisfy both prongs of this test. See, e.g., Honig v. Doe, 484 U.S. 305, 322-23, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) Jenkins v. Squillacote, 935 F.2d 303, 306 (D.C.Cir. 1991); Petties v. District of Columbia, 881 F. Supp. 63, 69 (D.D.C. 1995) (holding that DCPS' history of delayed payments in identical circumstances created a "sufficient likelihood" that the behavior would be repeated): First, DCPS' failure to comply with its IDEA obligations is action too short to be fully litigated prior to its cessation. See, e.g., Jenkins, 935 F.2d at 306 (D.C.Cir. 1991) ("there can be no doubt that a one-year placement order under the IDEA is, by its nature, too short in duration to be fully litigated prior to its expiration") (quoting Honig, 484 U.S. at 322-23, 108 S.Ct. 592). Second, Ian is eligible to receive educational placements under IDEA until his 21st birthday, and there is therefore a "reasonable expectation" that Ian and his parents will be subject to the same action again. See Jenkins, 935 F.2d at 308 (holding that when a child would remain eligible under IDEA for at least eleven more years, there was a reasonable ...


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