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Sykes v. District of Columbia

October 31, 2007

EVELYN SYKES, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on the parties' cross-motions [10 and 11] for summary judgment. Upon consideration of the plaintiff's motion, defendant's motion, the oppositions thereto, the reply briefs, the applicable law, and the entire record herein, the Court concludes that plaintiff's motion will be denied and defendant's motion will be granted as to past school years but denied without prejudice as to year 2007-2008. The Court's reasoning is set forth below. As summary judgment requires that the factual record be construed in the light most favorable to the non-moving party, the factual background recited below is drawn from the defendant's and plaintiff's motions for summary judgment. Also before the court, and dealt with in this Memorandum Order, are various motions related to the summary judgment motions [17] and related to plaintiff's requested status conference [24 and 27].

STATUTORY BACKGROUND

Passed by the U.S. Congress in 2005, the Individuals with Disabilities Education Act ("IDEA") ensures that, "all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). Local school officials utilize an individualized education program ("IEP") to assess the student's needs and assign them to a commensurate learning environment. 20 U.S.C. § 1414(d)(1)(A). The IEP team, consisting of the student's parents, teachers, and other local education personnel, examines the student's educational history, progress, recent evaluations, and parental concerns prior to implementing a free appropriate public education for the student. Id.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff, Evelyn Sykes, brought this case on behalf of her grandson, D.B., under the IDEA, 20 U.S.C. § 1400 et seq., to challenge an adverse administrative ruling. D.B. is a twelve-year old resident of the District of Columbia deemed eligible for special education services. In January 2003, a psychiatric evaluation diagnosed D.B. with attention deficit hyperactivity disorder ("ADHD"). Later that year he was designated with a disability classification of emotional disturbance. D.B.'s initial IEP, dated September 17, 2003, required 20 hours of specialized instruction and one hour of psychological counseling per week. The IEP team reviewed D.B.'s plan in May 2004. Based upon the available information, the team reduced the specialized instruction for D.B. to 15 hours per week. In June 2004, an independent evaluation concluded that D.B. should receive occupational therapy services as well.

In November 2004, based upon plaintiff's dissatisfaction with the D.B.'s progress, plaintiff requested a due process hearing to evaluate the IEP. The hearing officer ruled that D.B.'s ongoing placement at Kimball Elementary School was appropriate and he had not been denied a free appropriate public education. He also mandated a review of the IEP in relation to the occupational therapy evaluation and directed compensatory education to be awarded as appropriate. The team awarded D.B. 64 hours of compensatory education services based upon the non-performance of previously awarded counseling services from the prior year.

In April 2005, a new psychological evaluation diagnosed D.B. with ADHD and depressive disorder but did not recommend a full-time special education placement for D.B. In May 2005, the annual IEP classified D.B. as having multiple disabilities. The team changed D.B.'s weekly prescribed services to 15 hours of specialized instruction, one hour of psychological services and one hour of speech language therapy.

On May 9, 2006, the IEP team convened the annual review of D.B.'s record and re-labeled the student as learning disabled. The team also reduced D.B.'s speech language service to 30 minutes per week. In addition, D.B. aged out of Kimball Elementary and received placement for the next academic year in his local school, Kelly Miller Middle School. Plaintiff opposed this local school choice for D.B. and requested placement at Rock Creek Academy, a private school that offered a full-time special education program. D.B. was accepted at Rock Creek Academy and would have been placed in a class of five students. DCPS declined to fund plaintiff's choice of Rock Creek Academy, finding that no recent IEP supported D.B.'s placement into a full-time program.

In June 2006, plaintiff filed a Due Process Complaint Notice alleging DCPS's (1) failure to provide an appropriate placement since the start of the 2003-2004 school year; (2) failure to conduct and review adequate evaluations in all areas of suspected disability; (3) failure to determine an appropriate disability classification for a qualified child with a disability since the start of the 2003-2004 school year; (4) failure to develop appropriate IEPs since the start of the 2003-2004 school year; (5) failure to provide necessary special education and related services since the start of the 2003-2004 school year; and (6) failure to provide extended school year service following the 2003-2004, 2004-2005, and 2005-2006 school years.

The Due Process Hearing convened on August 23, 2006. The hearing officer accepted into evidence 27 exhibits from the plaintiff and one exhibit from the defendant. In addition, he heard testimony from witnesses: Ms. Evelyn Sykes, Ms. Robin Rabb, Special Education Coordinator of Kimball Elementary School, and Ms. Keren Plowden, Executive Director of Rock Creek Academy,.

The hearing officer found that D.B.'s placement at Kimball was appropriate and therefore limited consideration of the claims to the 2004-2005 and 2005-2006 school years. He subsequently identified three issues for consideration:

Did DCPS deny the student a free appropriate public education by

1. failing to provide the student an appropriate IEP from December 2004?

2. failing to provide the student specialized instruction and related services from December 2004 to the end ...


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