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D.R. v. Government of the District of Columbia

July 27, 2009

D.R., BY HER PARENT AND NEXT FRIEND DOLORES ROBINSON, ET AL., PLAINTIFFS,
v.
GOVERNMENT OF THE DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiffs D.R. and her mother and next friend, Dolores Robinson, bring this action against the District of Columbia and Michelle Rhee, the Chancellor of the District of Columbia Public Schools ("DCPS"). Plaintiffs allege that defendants denied D.R. a free appropriate public education ("FAPE") within the meaning of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, and they challenge a Hearing Officer's Determination ("HOD") that dismissed their case on April 17, 2007. Now before the Court are the parties' cross-motions for summary judgment. For the reasons discussed below, the Court will grant defendants' cross-motion for summary judgment and deny plaintiffs' motion for summary judgment.

BACKGROUND

I. The Individuals with Disabilities Education Act

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 Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 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 in federal district court challenging it. Id. § 1415(i)(2)(A).

II. Factual Background*fn1

Plaintiff D.R. is a student who has been classified as emotionally disturbed for the special education purposes of the IDEA. Pls.' Stmt. ¶ 1. She was seventeen years old when the due process complaint that began this lawsuit was filed on February 1, 2007. Id. At that time, D.R. was enrolled at D.C. Alternative Learning Academy. Compl. ¶ 6. That school closed before the 2007-08 school year, so D.R. enrolled at Ballou Senior High School ("Ballou"), a DCPS school. Defs.' Mem. Ex. C at 2. During that school year, however, she transferred to Monroe School, a private school. Id. D.R. then re-enrolled at Ballou for the 2008-09 school year. Id. Prior to the due process complaint that began this lawsuit, D.R.'s most recent IEP was completed on December 22, 2004. Pls.' Stmt. ¶ 8. For each week, this IEP called for twenty-seven hours of specialized instruction, two hours of counseling, and one hour of speech and language therapy. Id. ¶ 1.

Plaintiffs have filed three due process complaints seeking a revision of D.R.'s IEP and the evaluations necessary to make that revision. Pls.' Stmt. ¶¶ 2, 3; Defs.' Mem. Ex. A at 3. On April 24, 2006, plaintiffs filed the first due process complaint through attorney Steven Boretos. Administrative Record ("A.R.") at 84-86. On July 11, 2006, the Hearing Officer issued a Determination ("HOD #1") requiring defendants to complete a comprehensive psychological evaluation, a speech and language evaluation, and a vocational assessment. Id. at 86. If defendants did not complete these tests within forty-five days, they were to fund independent evaluations. Id. The Hearing Officer further ordered defendants to convene a team meeting within fifteen days of receiving all of the evaluations for the purpose of revising D.R.'s IEP. Id. D.R. received the required independent evaluations during the fall of 2006. Id. at 90, 98, 103. However, DCPS's special education coordinator did not receive the results of these evaluations until November 20, 2007, more than a year after the last evaluation was complete. Defs.' Mem. Ex. A at 3.*fn2

Meanwhile, defendants filed a second due process complaint on February 1, 2007, through attorney Fatmata Barrie. A.R. at 12. The allegations in this complaint were essentially the same as the allegations in the April 24, 2006 complaint, except that they expressly included the 2006-07 school year. See Defs.' Mem. at 5-6 (comparing allegations in the two due process complaints). The complaint stated that D.R. had yet to receive her evaluations, A.R. at 14, which, according to the record, was not true at the time plaintiffs filed the complaint. Id. at 90, 98, 103. At the hearing on this due process complaint, Ms. Barrie and Ms. Robinson, D.R.'s mother, suggested that the change of attorneys may have caused some of the confusion. Id. at 117. The Hearing Officer ruled on April 17, 2007 ("HOD #2") that in light of HOD #1 res judicata barred the issues raised in the second complaint, despite plaintiffs' objections that HOD #1 did not encompass the 2006-07 school year. See id. at 128. Plaintiffs timely appealed HOD #2 to this Court on July 16, 2007.

While that action was pending in this Court, plaintiffs filed a third due process complaint on October 1, 2007, through Mr. Boretos, plaintiffs' attorney for HOD #1. Defs.' Mem. Ex. A at 1. That due process complaint itself is not part of the administrative record. Nonetheless, HOD #3 resolves the same issues raised in the first two due process complaints, in addition to the question whether defendants had violated HOD #1 by not timely updating D.R.'s IEP. Id. at 3. The Hearing Officer issued a Determination ("HOD #3") on December 17, 2007 requiring defendants to convene a team meeting within ten school days to update D.R.'s IEP based on the evaluation results that defendants had received on November 20, 2007. Id. Defendants convened this meeting on September 23, 2008, more than nine months after the original deadline, and revised D.R.'s IEP to include specialized instruction and remove her from general education. Defs.' Mem. Ex. B at 1. In a subsequent team meeting on October 14, 2008, defendants agreed to provide D.R. with, among other things, eighteen months of compensatory education at three sessions per week. Defs.' Mem. Ex. C at 1.

The present case is an appeal of HOD #2. This Court dismissed a portion of plaintiffs' complaint on February 26, 2008. Robinson ex rel. D.R. v. Dist. of Columbia, 535 F. Supp. 2d 38, 42 (D.D.C. 2008) (dismissing plaintiffs' claims under 42 U.S.C. § 1983 and 29 U.S.C. § 794). After those proceedings, defendants filed an answer, plaintiffs moved for summary judgment, and defendants cross-moved ...


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