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SHAW v. DISTRICT OF COLUMBIA

November 22, 2002

SIDNEY MAYBELL SHAW, ET. AL., PLAINTIFFS,
V.
DISTRICT OF COLUMBIA, DEFENDANT



The opinion of the court was delivered by: Reggie B. Walton, District Judge.

    MEMORANDUM OPINION

The instant lawsuit presents to the Court issues concerning the education of a young child enrolled in the District of Columbia Public Schools ("DCPS") system. Despite the allegations raised by the child and her parent, the Court concludes that DCPS has met its legal obligations to the child pursuant to the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400 et seq. (2000), and therefore must deny plaintiffs' motion for summary judgment.

I. Background

Plaintiff Sidney Shaw is a four year old child with a speech and language impairment. Compl. ¶ 3. Plaintiff Antoinette Shaw is Sidney's mother. Id. ¶ 4. Currently, Sidney is enrolled at the J.O. Wilson Elementary School ("J.O. Wilson") in a program that provides her with 32 hours per week of special education. Id. ¶ 3. According to her Individualized Education Program ("IEP") Sidney is also receiving speech and language therapy sessions for thirty minutes two times a week.

Prior to attending J.O. Wilson, Sidney attended St. John's Early Intervention Program, where she received special education services and was enrolled in two day-care programs. Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion for Summary Judgment ("Pls.' Reply") at 3-4. In approximately September 2000, Ms. Shaw*fn1 enrolled Sidney at J.O. Wilson.*fn2 At the time of Sidney's enrollment at J.O. Wilson, Ms. Shaw did not inform school officials that Sidney had been enrolled at St. John's Early Intervention Program nor that she had received special education services there. Id. at 4; Administrative Record ("Admin. R."), Ex. 1, Hearing Officer's Determination dated November 20, 2001, at 3, Findings of Fact ¶ 3. In November 2000, Ms. Shaw orally requested that Sidney be evaluated for special education services. Pls.' Reply at 4, Admin. R., Ex. 1 at 3, Findings of Fact ¶ 4. On March 7, 2001, Sidney's regular education classroom teacher, Ms. Pickett, made a referral for an evaluation of Sidney. Id. Ms. Shaw subsequently made another oral request for an evaluation in April 2001. Id.

On July 17, 2001, Marsha Hosten-Carter, M.Ed., performed a psycho-educational evaluation of Sidney from which she observed that "[c]urrent testing demonstrated the presence of Mentally Deficient intellectual functioning" and "Sidney's low cognitive scores and academic performance are likely impacted by delayed language skills, and are likely to be an underestimate of her true abilities. . . . Results of a formal speech/language evaluation are deemed necessary prior to making a recommendation for an appropriate setting." Admin. Rec., Ex. SS-1, Confidential Psychoeducational Report, dated July 27, 2001, at 3. A speech and language evaluation was performed on Sidney on July 31, 2001, by Toni Carroll, M.S., who concluded that although Sidney "has mastered the skills that are precursors to language" she currently has "a moderate expressive communication and auditory comprehension delay." Admin. R., Ex. SS-2, Speech and Language Evaluation Report at 4. Based upon these findings, Ms. Carroll recommended that "Sidney receive speech and language intervention two times weekly for 30 minutes." Id.

A Building Level Multidisciplinary Team ("BLMDT") met on August 2, 2001, to conduct an IEP meeting on Sidney's behalf, at which time it was determined that Sidney was eligible for special education based upon having a speech and language disorder. Admin. R., Ex. 1 at 4, Findings of Fact ¶ 8. At this meeting an IEP was developed and a special education placement for Sidney was offered in a "95% program at J.O. Wilson Elementary School, the same school where Sidney was currently enrolled." Id. Ms. Shaw was present during the meeting, asked questions, and accepted this placement. Id. However, Ms. Shaw was distressed by the finding that Sidney's IQ fell in the mentally deficient range. Id. A 30-day review was recommended by the meeting participants. Id. ¶ 11. Ms. Vincent, the IEP Coordinator, invited Ms. Shaw on several occasions to participate in the BLMDT review meeting that was scheduled, but Ms. Shaw declined these offers based on scheduling issues. Id.*fn3

Subsequent to the initial BLMDT meeting, in September 2001, Sidney was enrolled in the 95% special education program at J.O. Wilson. Id. ¶ 12. The special education class has six students, ages 4-6, two of whom are girls, and four of whom are boys. Id. These other students are identified "as multiply disabled, speech/language impaired, and emotionally disturbed." Id. Present in the classroom are a full-time teacher, a full-time teacher's aid, and a librarian. Id.*fn4

Ms. Shaw filed a request for a due process hearing pursuant to 20 U.S.C. § 1415(f)(1) on September 20, 2001. The request for the hearing was titled "Request for Appropriateness and Failure to Provide a Free Appropriate Education Hearing" ("Request"). The due process hearing was held on November 20, 2001. In the Request, plaintiffs contended, among other things, that DCPS failed to assess and evaluate Sidney in all areas of suspected disability; that the "current IEP and/or Notice of Proposed Change in Educational Placement (NOPP) fail to meet legal requirements"; and that "placement at J.O. Wilson Elementary School is not an appropriate program and/or placement for the child." Admin. R., Ex. 5 ¶¶ 12-15. Despite the numerous issues raised in plaintiffs' Request, at the hearing the hearing officer addressed only two issues:*fn5 "(1) Did DCPS violate Ms. Shaw's due process rights by failing to identify her daughter, Sidney Shaw, as eligible for special education services in a timely manner? (2) Did DCPS deny Sidney FAPE [Free Appropriate Public Education] by putting her in an inappropriate special education placement?" Admin. R., Ex. 1 at 2.

Based upon the facts presented to her, the hearing officer made the following conclusions of law:

(1) Although DCPS surpassed the time line for offering special education services to Sidney, there was no harm to the child as the time line ran into the summer months.
(2) DCPS did not err in the application of various evaluation instruments to determine Sidney's eligibility and need for special education services.*fn6
(3) Although the notice of placement issued by DCPS did not totally meet the letter of the law, the parent was provided with all information to be contained therein. Therefore, no violation is found.

(4) DCPS is providing Sidney with FAPE at J.O. Wilson Elementary School.

Admin. R., Ex. 1 at 5-6, Conclusions of Law.

II. The Parties' Arguments

Plaintiffs assert that the hearing officer erred in several respects: First, she erred in ruling as a matter of law that although DCPS surpassed the time for offering Sidney special education services, there was no harm caused by the delay because the violation occurred only while the school system was in summer recess. Compl. ¶ 26. Second, the hearing officer erred by ruling as a matter of law that although DCPS' notice of placement did not literally comply with the requirements of the law, there was no violation because Ms. Shaw was provided with all the information regarding Sidney's placement. Id. ¶ 28. Third, the hearing officer erred in concluding that DCPS is providing Sidney with a Free Appropriate Public Education ("FAPE") at J.O. Wilson Elementary School. Id. ¶ 30. Finally, the hearing officer erred in denying Ms. Shaw's request for an alternative special educational placement and tutorial services for Sidney. Id. ¶ 32.

Plaintiffs seek a ruling from this Court that DCPS failed to satisfy its burden of proof at the hearing before the hearing officer to establish that the DCPS representative was qualified to be present at the initial BLMDT meeting; that the August 2, 2001, IEP and notice of placement did not meet the requirements of the IDEA; that the Perelman Memorandum denied plaintiffs due process; that DCPS immediately place Sidney at a school of Ms. Shaw's choice and fund Sidney's attendance there; that DCPS immediately provide Sidney with one hour of paid, private tutorial services, with a tutor of Ms. Shaw's selection, for every day past the 120 day period after Ms. Shaw made her request to DCPS for an evaluation; and that the Court award plaintiff attorney's fees, expert witness fees and costs for both the administrative proceeding and the current judicial proceeding.

In opposition to plaintiffs' motion, defendant District of Columbia*fn8 raises several arguments. First, DCPS argues that the hearing officer's decision is supported by substantial evidence in the record and there is no allegation that the evaluative reports or IEP regarding Sidney are substantively deficient. Defendants' Opposition to Plaintiffs' Motion for Summary Judgment, Remand, and Injunctive Relief ("Defs.' Opp'n") at 6. In this regard, DCPS notes that Ms. Shaw "attended the [initial BLMDT] meeting, participated in [the IEP's] development, and agreed with its contents." Id. at 6-7. Next, DCPS argues that any procedural flaws in evaluating and placing Sidney past the 120-day time-line, in the notice of placement and in the alleged altering of the IEP to include Ms. Hosten-Carter's signature do not "render the IEP or placement invalid" and have not "compromised [Sidney's] right to an appropriate education, seriously hampered [Ms. Shaw's] opportunity to participate in the formulation process or caused a deprivation of educational benefit." Id. at 7-8 (internal quotation marks and citations omitted). DCPS argues there has not been a violation of the IDEA in this case because Sidney was not denied special education, Ms. Shaw was provided with all the information that needed to be contained in the notice of placement, and even if Ms. Hosten-Carter did not attend the initial BLMDT meeting, which disputes the recollection of the IEP coordinator, there is no substantive error because Ms. Hosten-Carter's extensive report was available at the meeting and the results were explained to Ms. Shaw and utilized by the Multi-Disciplinary Team ("MDT"). Id. at 9. Finally, regarding the Perelman Memorandum, DCPS argues that this issue was ...


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