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D.S. v. District of Columbia

March 30, 2010

D.S., PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Court Judge

MEMORANDUM OPINION

Plaintiff D.S. seeks review of an administrative decision denying her request for relief from the District of Columbia Public Schools ("DCPS") for alleged violations of the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., by failing to provide her with a free appropriate public education ("FAPE"). Pending before the Court are cross-motions for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, the administrative record, the arguments made by counsel during the motions hearing held on March 25, 2010, and for the reasons stated below, the Court finds that the hearing officer's dismissal of D.S.'s October 2008 due process complaint for lack of jurisdiction was erroneous and is hereby REVERSED. Accordingly, plaintiff's motion for summary judgment is GRANTED, and defendant's motion for summary judgment is DENIED. Because the hearing officer failed to address or make findings on the merits of the October 2008 due process complaint, the Court concludes that it is necessary to REMAND the case to the hearing officer for a determination as to whether there were any IDEA violations and, if so, the amount of compensatory education to which D.S. is entitled.

I. BACKGROUND

A. Plaintiff's Attendance at Cardozo

Plaintiff, D.S., is a resident of the District of Columbia, and, at the time this action was filed, a student at Benjamin Cardozo Senior High School ("Cardozo").*fn1 D.S. qualifies for special education and related services under the IDEA as a "learning disabled" child. Def.'s Statement of Material Facts ("Def.'s SMF") ¶ 1. On February 2, 2007, during the 2006-2007 school year, a Multi-Disciplinary Team ("MDT") met and developed an individual education program ("IEP") for D.S. (the "February 2007 IEP"). See infra Section II.A (discussing IEPs under the IDEA). Plaintiff's February 2007 IEP specified that she was to receive 21 hours of specialized education, and was to be placed in a combination general education and resource classroom setting at Cardozo. Def.'s SMF ¶ 2.

Although D.S. continued her education at Cardozo during the 2007-2008 school year, her attendance dropped considerably.

Def.'s SMF ¶ 3. Indeed, during the fall semester of 2007-2008, plaintiff had 118 unexcused absences. Def.'s SMF ¶ 3. D.S. was often observed by her teachers "wander[ing] the halls" and "hiding" in the building. See Pl.'s SMF ¶ 2; Administrative Hearing Transcript ("Hearing Tr.") at 23-24. In January 2008, an MDT met to review and update plaintiff's February 2007 IEP. Def.'s SMF ¶ 4. Due to plaintiff's poor attendance during the Fall 2007 semester of school, however, the MDT found no evidence that D.S. had mastered any of the goals set forth in her February 2007 IEP. Def.'s SMF ¶ 6. The MDT therefore decided that plaintiff's academic goals in her January 2008 IEP should remain the same. Def.'s SMF ¶ 6.

On May 2, 2008, concerned by plaintiff's attendance problems and poor grades, plaintiff's mother filed an administrative due process complaint alleging that DCPS failed to re-evaluate plaintiff, failed to review plaintiff's IEP, and failed to turn over plaintiff's student records ("May 2008 due process complaint"). Def.'s SMF ¶ 10. On May 28, 2008, a hearing officer issued a decision (the "May 2008 HOD"), which ordered DCPS to fund independent evaluations for plaintiff in several areas, including: a psychological evaluation, a speech and language evaluation, and a vision screening. Def.'s SMF ¶ 11; Pl.'s SMF ¶ 5. The hearing officer also ordered DPCS to convene an MDT/IEP meeting "no later than one month prior to the start of the 2008/2009 school year" to review the evaluations, revise plaintiff's IEP as necessary, and discuss and determine compensatory education. Pl.'s SMF ¶ 5.

Plaintiff received a psycho-educational evaluation and a speech and language evaluation in July 2008. Def.'s SMF ¶¶ 13-14. These evaluations revealed that D.S. was performing almost eight years below in the areas of Broad Reading, Broad Math, and Broad Written Language. Pl.'s SMF ¶ 9. The evaluations also found a mild clinical risk in the areas of anxiety, depression, aggression, and attention deficit hyperactivity disorder. Pl.'s SMF ¶ 9.

After receiving these evaluations, an MDT meeting was convened on September 2, 2008 to review and revise D.S.'s IEP. Def.'s SMF ¶ 15. During this meeting, the MDT (i) revised plaintiff's IEP to include counseling services; (ii) developed a compensatory education plan for plaintiff; and (iii) recommended that plaintiff receive a Functional Behavioral Assessment.

Def.'s SMF ¶¶ 15-16. The Team rejected, however, plaintiff's mother's request for an independent clinical psychological evaluation of D.S.

During the September MDT/IEP meeting, plaintiff's mother also shared her reservations about allowing D.S. to return to Cardozo, informing the MDT that she had not yet enrolled her daughter for the 2008-2009 school year. See Pl.'s SMF ¶ 15; Def.'s SMF ¶ 20. Nevertheless, in mid-October, plaintiff's mother re-enrolled D.S. at Cardozo. Def.'s SMF ¶ 22. D.S., however, continued to avoid attending class, and routinely wandered the hallways of the school and hid from her teachers. See Def.'s SMF ¶¶ 25-27; see also Hearing Tr. at 48 (discussing how D.S. "manage[d] to somehow be in the school and actually not go to class").

B. Plaintiff's Due Process Complaint & Administrative Hearing

On October 7, 2008, one week prior to formally enrolling at Cardozo, plaintiff's mother filed a second administrative due process complaint ("October 2008 due process complaint") challenging the September 2008 IEP. Specifically, plaintiff's mother alleged that DCPS had failed to: (i) develop an appropriate IEP for D.S.; (ii) place D.S. in a proper school; (iii) properly implement the D.S.'s IEP; and (iv) evaluate D.S. in all areas of suspected disability. See Administrative Record ("AR") 12-20. The October 2008 due process complaint sought, inter alia, reasonable ...


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