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Thomas Cox, et al v. District of Columbia

December 9, 2010


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiffs, minor children and their parents and guardians,*fn1 seek to collect attorneys' fees and other costs incurred in bringing successful administrative actions under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. Defendant is the Government of the District of Columbia. This matter is before the Court on Plaintiffs' Motion for Summary Judgment. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Plaintiffs' Motion for Summary Judgment is granted.

This is a case about attorneys' fees. What undergirds the request for attorneys' fees, and what caused the extensive legal work necessary to properly and effectively represent Plaintiffs' clients are two deeply distressing stories about the failure of the District of Columbia to provide absolutely necessary special education services to two children who desperately needed them.

The Smith case presents the most egregious situation. On September 7, 2007, a thirteen-year-old girl was reported to be verbally and physically aggressive in the classroom, argumentative, hostile, and attention-seeking with a host of academic problems. A plan was formulated to curb her behavior, but she was suspended for disruptive behavior. Her parents requested, in writing, a full evaluation for special education. The necessary comprehensive psychological report was not completed until a year later and the necessary Individual Education Program was not completed until almost thirteen months later, despite the fact that the child's classroom behavior continued to deteriorate during the entire school year. Finally, some fourteen-and-a-half months after the initial incident, when the child had a particularly violent classroom episode, she was admitted to the Psychiatric Institute and was not discharged until two weeks later. She returned to the same classroom setting--and was again violent, cursed her teachers, and refused to follow any instructions or directions. Some sixteen and a half months after the initial incident, she was suspended from school for pushing a teacher, and was ultimately brought to court for similar conduct when it occurred again. Finally, some eighteen months after the initial incident, the child was determined to be eligible for special education services and received a disability certificate of Emotionally Disturbed.

It was only after the child's parents filed a Due Process Complaint, and received a full evidentiary hearing, that, thanks to the Hearing Officer, DCPS was ordered to place the child (after she lost two years of school*fn2 ) at the High Road Middle School where she would receive the services she needed and to which she was entitled.*fn3

The Johnson case, while less extreme, is equally heartbreaking. In that case, by December 4, 2008, it was recognized that this fourteen-year-old boy needed "an alternative placement" that was more restrictive and with students functioning at a level of mild mental retardation, but that he would have to be reevaluated. That re-evaluation was done in a timely fashion and the original recommendation was re-affirmed. Thereafter, no progress was made in changing the boy's placement, his Individual Education Program was not revised, and various necessary tests and meetings related to finding an appropriate placement did not take place.

Four-and-a-half months after the initial determination that an alternative placement was needed, the child was suspended from school for disruptive behavior, which the school system determined was a manifestation of his disability.

Again, it was only after the child's parent filed a Due Process Complaint, and received a full evidentiary hearing, that, thanks to the Hearing Officer (not the Hearing Officer in the former case), DCPS was ordered to place the child, after he lost almost a full school year,*fn4 at the High Road Middle School where he would receive the services he needed and to which he was entitled.*fn5

Both of these cases highlight not just the maddening inadequacies of the school system, but in relation to these Complaints, the enormously vital role that lawyers play in ensuring that their young clients obtain the educational enhancements that Congress has granted them so that they may go on to lead productive lives.


A. Factual History*fn6

1. Plaintiffs Brenda Smith, Xane Smith, and B.S.

On June 22, 2009, Plaintiffs Brenda Smith and Xane Smith filed a Due Process Complaint on behalf of B.S., alleging that the District of Columbia Public Schools ("DCPS") had denied B.S. a free appropriate public education ("FAPE") under the IDEA. At that time, B.S. was a thirteen-year-old girl attending Macfarland Middle School. B.S. Decision 2.

The events giving rise to the Smiths' Due Process Complaint began on September 1, 2007. On that day, a Student Support Team ("SST") learned from B.S.'s teacher that B.S.'s classroom behavior was, among other things, verbally and physically disruptive, verbally aggressive, bullying, easily distracted, argumentative, hostile when criticized, attention-seeking, and easily frustrated. B.S.'s classroom behavior was accompanied by a host of academic issues, including declining grades, disorganization, incomplete assignments, failure to follow directions, poor study skills, and inability to work well with others. On September 14, B.S. was also described as having a short attention span, showing difficulty with sustained reading exceeding three minutes, and constantly moving about the classroom. Id. at 3-4.

On October 4, 2007, the SST formulated a plan for B.S., which included weekly counseling, support and materials as needed for B.S.'s course work, and daily monitoring forms to be completed by B.S.'s teacher. The SST plan also called for conducting a functional behavioral assessment ("FBA"), to produce a Behavior Intervention Plan ("BIP"). Nevertheless, B.S.'s problems persisted and she was suspended for five days. Id. at 4.

On November 19, 2007, Petitioners signed a written request that B.S. be evaluated for special education. B.S. was then referred to a Multidisciplinary Team ("MDT"). By November 26, 2007, the psychologist at Macfarland had the necessary release of information form from Brenda and Xane Smith and an SST Final Meeting Report requesting evaluation and referral to the MDT. On that same date, the psychologist relayed all relevant data to a DCPS special education specialist ("SEC"). Id.

By January 24, 2008, B.S. had failed four of the core classes for that quarter. On February 6, the psychologist at MacFarland sent a memorandum to the SEC, reminding him or her that B.S. continued to have problems at school, that the SST suspected disability, and that relevant data had been submitted to the SEC back in November 2007. The psychologist indicated that a meeting with B.S.'s parents had been scheduled for February 11, 2008, and suggested that the SEC promptly schedule his or her own meeting with the Smiths to move forward with the eligibility process and to avoid litigation. Id. at 4-5.

On February 28, 2008, the MDT met to discuss B.S. and develop a Student Evaluation Plan, including psychological testing. Petitioners were present at this meeting. They informed the MDT that B.S. had been on medication for Attention Deficit Hyperactivity Disorder ("ADHD") for two years and insisted that B.S. be evaluated by the special education department. For the second time, Petitioners signed consent forms for this purpose. Id. at 5.

On April 3, 2008, the MDT met once again as a result of B.S.'s disruptive behavior. As it had done more than a month earlier, the MDT again developed a Student Evaluation Plan calling for psychological testing. This time, the MDT established a due date of May 30, 2008 for the psychological assessments. Id.

On August 13, 2008, more than two months after the MTD's deadline, the Department of Mental Health sent a letter to the SEC indicating that the Department of Mental Health Community Services Agency had diagnosed B.S. with Oppositional Defiant Disorder ("ODD") and ADHD. The letter also stated that B.S. had begun medication management in March 2008 and was under the care of a child psychiatrist.

On September 8, 2008, more than three months after the MTD's deadline, DCPS finally completed the comprehensive psychological report for B.S. Among other things, the report noted that B.S. was having social and emotional concerns relating to ADHD symptoms, that B.S. qualified for special education services based on poor performance in math testing, and that B.S. had the cognitive ability to perform at grade level, given accommodations to address restlessness and attention deficits. At that time, final recommendations were pending the convening of an MDT meeting and receipt of any outside reports from the parents. Finally, further testing was completed on September 24, 2008----nearly thirteen months after the initial incident of September 1, 2007. Id. at 5-6.

An initial individualized educational program ("IEP"), dated September 25, 2008, classified B.S. with a Specific Learning Disability ("SLD") and called for five hours per day of specialized instruction in the general education setting as well as thirty minutes per day of behavior support services. This IEP required that special education services be provided in a combination setting of general education and resources classroom. At the meeting for this IEP, on September 25, 2008, the MDT determined that ADHD was not impacting B.S.'s ability to learn. The MDT referred B.S. to the general education curriculum to develop a behavior intervention plan. Id. at 6-7.

On November 24, 2008, B.S. entered a classroom that was not hers and became angry when the teacher in that classroom asked her to leave. B.S. destroyed property, ruined work books, and threw a pencil sharpener, timer, and numerous books around the classroom. On the same day, B.S. was admitted to the Psychiatric Institute of Washington ("PIW"). She was discharged two weeks later on December 8, 2008, with a diagnosis of ODD, Mood Disorder Not Otherwise Specified ("NOS"), and ADHD, and given a prescription for medication. Id. at 7.

Upon return to school, on December 15, 2008, B.S.'s behavior again deteriorated. She exhibited frequent hitting and kicking, running away from the school, cursing, refusal to comply with authority, and disrespect toward teachers. The MDT convened again on December 18, 2008 to discuss B.S. The MDT determined that she was a danger to herself and others and recommended that she be considered for a change of school placement, once evaluations were completed. Not ...

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