The opinion of the court was delivered by: John M. Facciola United States Magistrate
REPORT AND RECOMMENDATION
This case was referred to me for full case management, including a Report and Recommendation on the pending cross motions for summary judgment. For the reasons stated below, I recommend that Plaintiffs' Motion for Summary Judgment be granted and Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Defendants' Cross Motion for Summary Judgment denied.
This case involves the education of a child we will call "H.K." who was born on June 23, 1994 and who is now ten years old. H.K.'s mother and father divorced and her mother moved with H.K. from Anne Arundel County to the District of Columbia. H.K. attended the Lab School, a school that, according to the record in this case, serves learning disabled children exclusively. Transcript of Hearing held on April 24, 2003 ("Tr.") at 43. In October 2002, H.K.'s mother spoke to the principal of Horace Mann Elementary School who explained to her how H.K. should be registered as a "non-attending" student. Tr. at 50. Ultimately, a District of Columbia Public Schools ("DCPS") evaluation team, with the participation of H.K.'s mother, concluded that H.K. was a child who had a learning disability and that she was entitled to the services provided to such children by the Individuals with Disablities Education Act ("IDEA"), 20 U.S.C. §1400, et seq.*fn1 The team created an Individual Education Plan ("IEP") for her and concluded that Horace Mann was an appropriate placement for her.
H.K.'s mother challenged that determination and secured a hearing before a hearing officer. Unfortunately, the device used to record the proceedings during the hearing either was malfunctioning or was not used correctly. In fact, H.K.'s mother's counsel has counted 100 instances in the 119-page transcript where the person transcribing the tape has noted that whatever was said is inaudible. More significantly, the entire cross-examination of one of the two DCPS witnesses was not captured and therefore not transcribed.
For the reasons I will now state, I believe that the failure to provide H.K.'s mother with the verbatim transcription of the hearing that the IDEA requires deprived her of an entitlement guaranteed by the statute and that this deprivation compels the conclusion that H.K. has been denied the free appropriate public education to which she is due.
I. The Missing Portions of the Hearing Transcript
A. Testimony of the DCPS Witnesses
DCPS called two witnesses at the hearing, Harriet Lorinksy Kuhn and a woman identified in the transcript as "Mrs. Ford." Ms. Kuhn has been a DCPS school psychologist for twelve years and is assigned to five schools, one of which is Horace Mann. Mrs. Ford is the principal of that school.
Ms. Kuhn testified that she developed from what she described as "outside reports," a psycho-educational report to evaluate H.K.'s eligibility for services for the learning disabled and to assist in her placement. Tr. at 32. She concluded that H.K. would benefit from part-time special education services in reading. Specifically, Ms. Kuhn stated that H.K. should sit close to the teacher, who, in turn, should repeat visually presented directions as needed, making sure that H.K. grasped the concepts being presented. Ms. Kuhn also stated that Horace Mann should monitor H.K. carefully to increase her competence for reading and writing and that she would benefit from weekly group counseling to boost her self-esteem and self-confidence. Finally, Ms. Kuhn recommended that a speech and language review be conducted in order to determine her eligibility for additional speech and language services. Tr. at 32-33.
In Ms. Kuhn's view, H.K. has a mild learning disability, compounded by emotional issues. Tr. at 40. Ms. Kuhn also concluded that H.K.'s test scores are where they should be or close to it and that her needs would be met at Horace Mann, where she would reap the benefits of spending most of her time with non-learning disabled peers. Tr. at 41-42. In Ms. Kuhn's view, the Lab School, with its full-time program for severely learning disabled children, including a one-to-one adult-child ratio, was more than H.K. needed. Tr. at 43-44.
Mrs. Ford, the principal of Horace Mann, testified that special education was needed by only 6% of the student population at that school. Tr. at 48. She further explained that the learning disabled children are "mainstreamed" ( i.e. integrated with the other children) but that a special education teacher worked with the learning disabled children either in their regular classroom or separately. Tr. at 48. Finally, Mrs. Ford testified that Horace Mann had a speech pathologist assigned to the school ...