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Wesleyann & Warren Gill, Parents and Next Friends of W.G v. District of Columbia

March 16, 2011

WESLEYANN & WARREN GILL, PARENTS AND NEXT FRIENDS OF W.G., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

W.G. is a special needs child who receives special education and related services from the District of Columbia Public Schools. From November 5, 2008 to March 11, 2009, W.G. was not provided a Free Appropriate Public Education ("FAPE"), as required by the Individuals with Disabilities Improvement Education Act. Because Plaintiffs presented insufficient evidence from which the Hearing Officer could determine whether, and to what extent, compensatory education should be provided to W.G., no compensatory education was ordered. Sitting in equity, this Court ordered an evidentiary hearing to fill that void. See Mem. Op. [Dkt. # 21]; Order [Dkt. # 22]. Plaintiffs have not persuaded the Court that they have a program that would compensate W.G. for an educational loss, if any, he suffered in 2008-09. Their appeal will be denied and dismissed.

I. FACTS

W.G. faces significant challenges. He is twenty years old, with an IQ of 51 and adaptive skills that range from those of a baby of seven months to a boy of eight and one-half years. Pls.' Hearing Ex. 2 (Neuropsychological Evaluation June 29, 2009) at 9. His basic receptive and expressive language skills are at an age equivalent of approximately five years. Id. at 6. His education advocate, Maria Consuelo Ortega, testified that both his cognitive skills and his working memory are in the severely low range. See also Pls.' Hearing Ex. 3 (Educational Evaluation Sept. 15, 2009). In his personal care - bathing, dressing, combing his hair - W.G. is like an eight year old; in his other daily living skills, he functions between age equivalents of 3 years, 11 months, and eight years, six months. Pls.' Hearing Ex. 2 at 9. After tests in the fall of 2008, W.G. was classified as mentally retarded and emotionally disturbed. Id. at 3. When he had a psychological evaluation in June 2009, W.G. was diagnosed as bipolar, suffering from paranoia and social anxiety. Id. at 9, 10, 12. An educational evaluation in September 2009 concluded that his "academic knowledge is negligible," "his academic skills are negligible," and his "ability to apply his academic skills is negligible." Pls.' Hearing Ex. 3 at 1.

W.G. attended the SunRise Academy in Washington, D.C. during the 2007-2008 and part of the 2008-2009 school years. At a multi-disciplinary team meeting on March 4, 2009, W.G.'s education advocate complained that SunRise was an inappropriate placement and asked for W.G. to be transferred. After initially rejecting the request, on approximately March 11, 2009, the District of Columbia agreed and transferred W.G. to the Leary School in Prince George's County. W.G.'s parents seek compensatory education for the time between W.G.'s re-classification as mentally retarded and emotionally disturbed on November 5, 2008 and his transfer to Leary on March 11, 2009.

After a due process hearing on W.G.'s complaint that his education was lacking and he should be awarded compensatory education, the Hearing Officer found that he had been denied a Free Appropriate Public Education but refused to award any compensatory education because Plaintiffs had failed to present fact-specific evidence to justify the award of 150 hours of compensatory education that they requested. On appeal, this Court upheld the finding of denial of a FAPE and, sitting in equity, set the matter for an evidentiary hearing to allow Plaintiffs to offer the necessary evidence to support their claim for compensatory education. See Mem. Op. [Dkt. # 21]; Order [Dkt. # 22].

That hearing was held on February 1, 2011.*fn1 Plaintiffs called Ms. Ortega, the education advocate who was also their sole witness before the Hearing Officer. Ms. Ortega is employed by Plaintiffs' counsel's law firm.*fn2

Ms. Ortega testified that W.G. has been schooled at the National Children's Center since December 2009. He is now 19 years old and is entitled to special education services in he District of Columbia until he turns 22. He cannot read or write, although he can copy some letters as long as they are big enough. He does not recognize the alphabet. He can count from zero to ten. He has a memory deficit that requires constant repetition, on a daily basis, for him to retain new skills. He can stack chairs and wash dishes, but even so, this requires a dedicated aide to assist him.

W.G. was absent from school on numerous occasions in 2008. See Pls.' Hearing Ex. 2 at 9. He was hospitalized for two weeks at Children's Hospital in February 2008. Id. Due to his frequent truancy, his mother was investigated by Child Protective Services in 2008 and truant officers were utilized to improve his attendance. Id.

As she did in the administrative hearing, at the evidentiary hearing before this Court, Ms. Ortega recommended 150 hours of compensatory education for W.G. She suggested it could be provided as life skills training by Future Leaders of America, a non-profit organization, during the summer, since W.G. cannot absorb more than he is already presented at National Children's Center. See Pls.' Hearing Ex. 1 (Life Skills Plan developed for W.G. by Future Leaders of America). The Life Skills Plan developed for W.G. states that the plan "will put [W.G.] on the correct path to gain more social awareness, [and provide] effective life skills training with meaningful experiences that help [W.G.] to develop his independent living skills." Id. at 1. The life skills in question are "Traveling (i.e., Metro Bus/Rail, Taxi, and Amtrak), Public Safety, 'Real Life' Math, Community Service, Obtaining Appropriate Identification, Employment Etiquette, and Job Training." Id. The "resource material" used by Future Leaders of America "is Life Skills Activities for Secondary Students with Special Needs for ages 5-18." Id. at 3.

The Life Skills Plan for W.G. contains an outline of a completed lesson with the objective of having a student "explain how a person with a disability could make adaptations to do well in school or on the job." Id. Its introductory activity is to "[h]ave students make a list of disabilities with which they are familiar." Id. Its next activity is to have students "read five examples on the worksheet 'Working with a Disability' about people with disabilities in a school or work situation." Id. at 4. The Plan gives examples of "Life Skill Descriptors" such as (1) "planning a trip" in which the student lists a place he would like to go and lists three cost considerations and (2) "local transportation" in which the student lists ways people travel in the city, identifies one way and then lists an alternative, and finally lists three forms of transportation and how the student or his family member use them and lists ten places the student would like to go. Id. at 3. The Life Skills Plan also identifies various services and their costs, such as a trip to the National Aquarium in Baltimore on a Marc Train; trips on Metrorail in the District of Columbia to various venues; use of a taxi cab; and grocery shopping, for which "Student will devise grocery list and make a purchase (ex. $20 can feed a family of six)." Id. at 4-5. The Plan indicates that it will "provide optimal opportunity for the student to take trips outside of his/her neighboring community, conduct research at the Martin Luther King Public Library, as well as utilize public transportation." Pls.' Hearing Ex. 1 at 5.

II. LEGAL STANDARDS

The Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA"), 20 U.S.C. § 1400 et seq., ensures that, "all children with disabilities have available to them a free appropriate pubic education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). The IDEIA guarantees children with disabilities the right to a free appropriate public education, i.e. FAPE. Id. In designing an appropriate education for students with disabilities, the child's parents, teachers, school officials, and other professionals collaborate to develop an individualized educational program ("IEP") to meet the child's unique needs. See 20 U.S.C. § 1414(d)(1)(B) & (d)(2)(A). Local school officials utilize the IEP to assess the student's needs and assign a commensurate learning environment. See 20 U.S.C. § 1414(d)(1)(A). The IEP team, consisting of the student's parents, teachers, and other local education personnel, examines the student's educational history, progress, recent evaluations, and parental concerns prior to implementing a FAPE for the student. Id. To determine whether a FAPE has been provided, courts must determine whether: (1) the school complied with the IDEIA's procedures; and (2) the IEP developed through those procedures was reasonably calculated to enable the student to receive educational benefits. Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1312 (11th Cir. 2003).

While the District of Columbia is required to provide students with a public education, it does not guarantee any particular outcome or any particular level of education. Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 192 (1982); Dorros v. District of Columbia, 510 F. Supp. 2d 97, 100 (D.D.C. 2007). If the parent objects to the identification, evaluation, or educational placement of the student, or the provision of a free appropriate public education, 20 U.S.C. § 1415(b)(6), the parent may seek an impartial due process hearing. Id. § 1415(f)(1). If the parent is ...


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