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Hunter v. District of Columbia

September 17, 2008

SHARON HUNTER, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This case was referred to me for all purposes including trial. Currently pending and ready for resolution are the parties' cross motions for summary judgment. For the reasons stated herein, both motions will be denied and the case will be remanded.

BACKGROUND

This is an action brought by a then-14 year old child ("T.H.") and his mother (collectively "plaintiffs"), who complain that, although T.H. was determined to be in need of special education by the District of Columbia Public Schools ("DCPS"), he was not provided with the Free Appropriate Public Education ("FAPE") required by the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA"), 20 U.S.C. § 1400 et seq.*fn1 Specifically, plaintiffs claim the following:

(i) DCPS failed to comply with a June 19, 2006 Hearing Officer's Determination (hereinafter "HOD");

(ii) DCPS failed to complete appropriate evaluations of the student and failed to evaluate him in all areas of suspected disability;

(iii) DCPS failed to provide T.H. with an appropriate placement for over two years;

(iv) DCPS failed to provide T.H. with [an] appropriate IEP [Individualized Education Plan], special education and related services and all his related services;

(v) The hearing officer erred in not considering the student's regression in deciding the case.

Motion for Summary Judgment ("Plains. Mot.") at 2.

Defendants argue that there are three reasons why it is clear from the Administrative Record that there has not been any denial of FAPE and that summary judgment should be granted in their favor. First, defendants contend that plaintiffs have failed to show any loss of educational opportunity. Defendants' Cross Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment ("Defs. Opp.") at 11. Second, defendants contend that DCPS complied with the administrative requirements of the IDEIA. Id. at 14. Finally, defendants contend that T.H.'s Individualized Educational Plan ("IEP") was appropriate and did provide some educational benefit. Id. at 15.

STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE

1. T.H. is an African-American male who was born in 1992. Plains. Mot. at 4.

2. On April 27, 2001, an IEP meeting was held for T.H. Administrative Record ("AR") at 76.

3. On March 6, 2002, an IEP meeting was held for T.H. AR at 53. The IEP team at the March 6, 2002 meeting consisted of 1) Isabelle Bartley, Classroom Teacher, 2) Anita Pottinger, Social Worker, 3) Reton Y. Gaffney, School Counselor, 4) Sharon Hunter, T.H.'s mother, 5) B.P. Sharma, 6) Joyce Gaillard, and 7) Ms. Johar, Special Education Teacher. AR at 53.

4. In April of 2002, T.H. was given the Stanford Achievement Test. AR at 118.

5. On April 29, 2002, T.H. was given a speech/language evaluation. AR at 140. According to Joyce Gaillard, the Examiner, "speech/language intervention services [were] not indicated." AR at 142.

6. On March 5, 2003, DCPS issued a report of its psychoeducational reevaluation of T.H. AR at 136. According to Janice Smith, the Examiner, T.H. needed "[c]ontinued services to address overall language skills including reading, spelling and written expression." AR at 139.

7. On March 20, 2003, an IEP meeting was held for T.H. AR at 46. The IEP team at the March 20, 2003 meeting consisted of 1) Isaac A. Snowden, General Education Teacher, 2) Robert Orton, Special Education Teacher, 3) Linda C. Brown, Speech Pathologist, 4) Reton Y. Gaffney, Counselor, and 5) Sharon Hunter. AR at 46.

8. In April of 2003, T.H. was given the Stanford Achievement Test. AR at 116. 9. On June 11, 2004, DCPS conducted a psycho-educational re-evaluation of T.H. AR at 133. The report issued following the re-evaluation concluded the following: "[T.H.] is an eleven year-old boy who is functioning in the Deficient to Borderline range of intelligence according to WASI results. Academically, he is currently functioning at the third to first grade according to K-TEA results. It appears that [T.H.] continues to be eligible for special education services." AR at 135.

10. On August 11, 2004, T.H. was interviewed pursuant to the standards set by the Vineland Adaptive Behavior Scales, which "measure the personal and social skills of individuals from birth to adulthood." AR at 113.

11. On September 29, 2004, an IEP meeting was held for T.H. AR at 41. The IEP team at the September 29, 2004 meeting consisted of 1) Patricia Harrower, Special Education Coordinator, 2) Marnie M. Cato, Speech Language Pathologist, 3) Jacqueline Colbourne, General Education Teacher, and 4) Marcus Mickel, Special Education Teacher. AR at 41.

12. On October 25, 2004, T.H. was given the Kaufman Test of Educational Achievement. AR at 101.

13. On October 25 and 26, 2004, DCPS conducted a psychoeducational evaluation of T.H. AR at 120.

14. On October 29, 2004, DCPS conducted a speech and language re-evaluation of T.H. AR at 94. According to Marnie M. Cato, the Speech-Language Pathologist who conducted the evaluation, T.H. needed "[d]irect language therapy twice a week for thirty minutes per session." AR at 100. Cato also recommended that T.H.'s IEP goals and objectives should address his 1) receptive and express language skills, and 2) his receptive and express vocabulary. AR at 100.

15. On October 31, 2004, DCPS conducted a psychoeducational evaluation of T.H. AR at 120.

16. On November 4, 2004, an IEP meeting was held for T.H. AR at 26. The IEP team at the November 4, 2004 meeting consisted of 1) Sharon Hunter, 2) Patricia Harrower, Special Education Coordinator, 3) Marnie M. Cato, Speech Language Pathologist, 4) Jacqueline Colbourne, General Education Teacher, 5) Marcus Mickel, Special Education Teacher, 6) Janice Smith, School Psychologist, and 7) Georgina A. Oladokun, Counsel for Hunter. AR at 26.

17. In the report on the November 4, 2004 IEP meeting, the following conclusion was reached: "Based upon the documents reviewed the MDT determined that [T.H.] continues to be eligible for special education services as a student with multiple disabilities. Specialized instruction is required in the following subjects: academic subjects[.] The total amount of specialized instruction required is: 26.5[.] Related services are required in the following ...


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