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O.O. v. District of Columbia

August 27, 2008

O.O., BY HIS PARENT AND NEXT FRIEND, CLAUDIA PABO, PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs, O.O. and his mother, Claudia Pabo, bring this action against the District of Columbia, the Mayor of the District, and the Chancellor of the D.C. Public Schools ("DCPS") under the Individuals with Disabilities Education Act ("IDEA" or "the Act") as amended, 20 U.S.C. §§ 1400-1482.*fn1 They challenge an administrative determination for the 2006-2007 school year denying them tuition reimbursement for O.O.'s placement at Kingsbury Day School ("Kingsbury") instead of the school proposed by DCPS, the Prospect Learning Center ("Prospect"), and allege that the Hearing Officer failed to issue a timely decision. Currently before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the motions, the parties' memoranda, the entire record, and the applicable law, and for the reasons set forth below, the Court will deny plaintiffs' motion for summary judgment and will grant defendants' motion for summary judgment.

STATUTORY BACKGROUND

Under the IDEA, all states, including the District of Columbia, that receive federal education assistance must establish policies and procedures to ensure that "[a] free appropriate public education ["FAPE"] is available to all children with disabilities residing in the State . . . ."

20 U.S.C. § 1412(a)(1)(A). The law defines FAPE as "special education and related services that

(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required . . . ." Id. § 1401(9). Once a child is found to qualify for a FAPE, DCPS is required to develop and implement an Individualized Education Program ("IEP") for him or her. Id. § 1414(d)(2)(A). The IEP comprehensively describes the student's present academic level, details measurable annual goals for the student, specifies necessary educational and related services, and establishes the extent to which the student will participate in a regular education classroom. Id. § 1414(d)(1)(A)(i).

In order to implement the IEP, a team that includes the child's parents determines where the child should be placed. Id. § 1414(e). If no public school can meet the child's needs, DCPS is required to place him or her at an appropriate private school and pay the tuition. Id. § 1412(a)(10)(B)(i); see also Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369 (1985). If a parent disagrees with the IEP or the subsequent placement, he or she is entitled to an "impartial due process hearing" conducted by the state or local educational agency. 20 U.S.C. § 1415(f)(1)(A). Any party aggrieved by the hearing decision may bring a civil action challenging it. Id. § 1415(i)(2)(A).

FACTUAL BACKGROUND*fn2

O.O. was born in Russia and adopted at age five by Pabo. Pls.' Stmt. ¶¶ 1-2. She enrolled him at Hearst Elementary School in DCPS. Id. ¶ 2. Although five-year-olds normally start kindergarten at Hearst, O.O. began pre-kindergarten because he was not ready for kindergarten. Id. He stayed at Hearst through third grade. Id. ¶ 3. He moved to another DCPS school, John Eaton Elementary School, for fourth and fifth grades. Id. ¶ 4. For the 2005-2006 year, Pabo removed O.O. from John Eaton and enrolled him at Our Lady of Victory ("OLV"), a private school. Id. ¶ 5. There, he repeated the fifth grade, making him now two years behind his peers. Id.

Despite repeating a grade he had just completed, O.O. struggled academically at OLV. Id. ¶ 6. He did not receive special education services until 2006, although he had received English as a Second Language ("ESL") services throughout elementary school. Id. ¶ 3. In the spring of 2006, Pabo contacted DCPS to determine O.O.'s eligibility for special education and find an appropriate placement. Id. ¶ 9. On April 26, 2006, a DCPS multi-disciplinary team ("MDT") meeting was held. Id. ¶ 10. The team decided they needed to conduct evaluations and observations of O.O. before any determinations could be made. Id. The evaluations revealed that O.O. has a specific learning disability, language disorder, problems with reading social cues and peer relationships, behaviors associated with Attention Deficit Hyperactivity Disorder ("ADHD") including some oppositionality, impulsivity, variable attention, hyperactivity, and poor executive functioning. Id. ¶ 7. Additionally, O.O. is identified as having Fetal Alcohol Syndrome. Id. DCPS has identified him as a child with multiple educational disabilities and it is undisputed that he is eligible to receive special education and related services under the IDEA. See Administrative Record ("A.R.") at 351.

Before a placement decision had been made, Pabo applied to Kingsbury, a private special education school, in July 2006. Pls.' Stmt. ¶ 12. On August 10, 2006, another MDT meeting was held, but Pabo was not present.*fn3 Id. ¶ 15. During that meeting, the team agreed that O.O. was eligible for special education but did not propose a placement. Id. ¶ 16 Another MDT meeting was held on August 30, 2006 with Pabo and her educational consultant, Dr. Laura Solomon, present. Id. ¶ 17. The MDT classified O.O. as a student with multiple disabilities and determined that he needed a full-time special education program. Id. Prospect, a DCPS full-time special education school, was proposed as a placement option, and Pabo agreed to go observe the program. Id. ¶¶ 18-19. Dr. Eve Peterson, the principal of Prospect, said that there was a spot available for O.O. but that it could be held open only for a couple days. Defs.' Stmt. ¶ 15.

Before she had the opportunity to visit Prospect, Pabo enrolled O.O. at Kingsbury at her own expense. Pls.' Stmt. ¶ 22. Pabo and Solomon went to visit Prospect on September 7, 2006, after the 2006-2007 school year had begun. Id. ¶ 23. They both thought that Prospect was not a suitable placement for O.O. Id. ¶ 24. The next day, DCPS invited Pabo to another MDT meeting to discuss Prospect. Id. ¶ 27. Pabo notified DCPS that she would not be attending the meeting and had rejected the placement. Id. ¶ 27.

On September 14, 2006, plaintiffs filed a due process hearing complaint, appealing DCPS's placement decision and requesting placement at Kingsbury. Id. ¶ 29. DCPS proceeded with an MDT meeting on September 21, 2006 without Pabo. Id. ¶ 28. On September 26, 2006, DCPS convened a resolution session with plaintiffs. Id. ¶ 30. No member of the MDT attended the meeting, and the only representative from DCPS present reiterated DCPS's pre-existing position that Prospect was an appropriate placement for O.O. Id. ¶ 31; A.R. at 604. Nothing was resolved at this resolution meeting. A.R. at 614.

The due process hearing commenced on January 16, 2007 before Hearing Officer Terry Michael Banks but did not conclude that day. Pls.' Stmt. ¶¶ 33, 41. The hearing reconvened on March 14, 2007, and testimony was completed that day. Id. ¶ 41. At the conclusion of the hearing, defendants provided a transcript to plaintiffs. Id. ¶ 51. However, the transcript of the first day of the hearing contained so many errors that both parties agreed that it needed to be replaced. Id. In addition to numerous misspellings, the transcript omitted a large portion of testimony that had been taken. Pls.' Reply at 9. The revised transcripts, which still contained some errors, were not completed until June 7, 2007. Pls.' Stmt. ¶ 51-52. The parties then submitted their written closing arguments, which were fully briefed by August 9, 2007. Id. ¶ 53. After plaintiffs filed this lawsuit, the Hearing Officer issued a decision ("HOD") on November 5, 2007, finding that plaintiffs are not entitled to reimbursement. A.R. at 14. Having exhausted their administrative remedies, plaintiffs appeal the HOD to this Court, alleging that DCPS failed to provide a FAPE, based on both procedural and substantive violations of the IDEA.

STANDARD OF REVIEW

Under the IDEA, "[a]ny party aggrieved by the findings and decision" rendered during administrative proceedings may "bring a civil action" in state or federal court without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2), (i)(3)(A); 34 C.F.R. § 300.516(a). The reviewing court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C); 34 C.F.R. § 300.516(c). On review of an HOD, the burden of proof falls upon the party challenging the administrative determination, who must "'at least take on the burden of persuading the court that the hearing officer was wrong.'" Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)).

The preponderance-of-the-evidence standard of review, the Supreme Court has held, does not authorize unfettered de novo review. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). Rather, consideration of the record impliedly requires courts to give "due weight" to the administrative proceedings, id., and "[f]actual findings from the administrative proceeding are to be considered prima facie correct," S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003). Therefore, courts may not substitute their own views for those of the hearing officer, see Rowley, 458 U.S. at 206; Shaw v. Dist. of Columbia, 238 F. Supp. 2d 127, 135 (D.D.C. 2002), and a court upsetting a hearing officer's decision "must at least explain its basis for doing so," Kerkam, 862 F.2d at 887. At the same time, "the district court's authority to 'hear additional evidence at the request of a party,' and 'bas[e] its decision on the preponderance of the evidence' . . . 'plainly suggest[s] less deference than is conventional' in administrative proceedings." Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887). A motion for summary judgment operates as a motion for judgment based on the evidence comprising the record and any additional evidence the Court may receive. See Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997) ("[T]he motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record.").

DISCUSSION

When a party challenges the result of an impartial due process hearing under the IDEA, the Court reviews the administrative determination in two steps. Rowley, 458 U.S. at 206. First, the Court must determine whether the procedural requirements of the Act have been followed. Id. Second, it must determine whether the IEP developed under those procedures is "reasonably calculated to enable the child to receive educational benefits." Id. at 207. If the Court finds that both requirements are satisfied, then the government "has complied with the obligations imposed by Congress and the courts can require no more." Id.

Plaintiffs allege procedural as well as substantive violations, raising challenges to both requirements. Pls.' Mot. at 13. Plaintiffs also request that this Court consider additional evidence when making its ruling. Pls.' Reply at 10. The Court takes up the latter issue first, and then weighs plaintiffs' claims on their merits.

I. Consideration of Additional Evidence

Plaintiffs ask the Court to consider one piece of evidence outside of the administrative record: the Hearing Officer's subsequent decision in February 2008 that, as to the 2007-2008 school year, DCPS must reimburse ...


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