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Donielle Long, et al v. District of Columbia

March 23, 2011

DONIELLE LONG, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiffs are D.L., a minor, and his mother, Donielle Long. On November 13, 2009, Plaintiffs brought suit under 20 U.S.C. § 1415(i)(2)(A) of the Individuals with Disabilities Education Act ("IDEA") against Defendants District of Columbia, Mayor Vincent Gray, Acting Attorney General Irvin Nathan, and Acting Chancellor of the Public Schools Kaya Henderson.*fn1 This matter is before the Court on Plaintiffs' Motion for Summary Judgment [Dkt. No. 12] and Defendants' Cross Motion for Summary Judgment [Dkt. No. 13]. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Plaintiffs' Motion for Summary Judgment is granted in part and denied in part, and Defendants' Motion for Summary Judgment is granted in part and denied in part.

I. Factual and Procedural Background

D.L. is a thirteen year old student currently living in the District of Columbia. See Administrative Record ("AR") at 268. D.L. began attending Brightwood Elementary School ("Brightwood") in kindergarten, transferred to Roots Public Charter School ("Roots PCS") for the second through fifth grades, and subsequently re-enrolled at Brightwood for the 2008-2009 school year. Id. at 4-5. The District of Columbia Public Schools ("DCPS") acts as the local educational agency ("LEA") for Roots PCS. Id. at 213-14.

In the fall of 2006, a Multi-Disciplinary Team ("MDT") at Roots PCS referred D.L. to Dr. Keisha Mack due to concerns about his academic performance. Id. at 268. On October 10, 2006, Dr. Mack completed a psycho-educational evaluation of D.L. and diagnosed him with a learning disorder, a developmental coordination disorder, and a possible language disorder. Id. at 268, 274. Dr. Mack recommended that D.L. receive specialized education services to address his weaknesses in reading and writing. Id. at 274. She also recommended that an MDT at Roots PCS further assess D.L. with a speech-language evaluation, an occupational therapy ("OT") evaluation, a clinical evaluation, and a behavior intervention plan ("BIP"). Id. DCPS did not complete the recommended tests or provide special education services to D.L. Id. at 267-78.

On January 22, 2009, D.L.'s mother, concerned about D.L.'s lack of academic progress at Brightwood, requested DCPS to reevaluate him for special education eligibility. Id. at 193. She asked DCPS to perform psycho-educational, clinical psychological, speech and language, social history, and OT evaluations, as well as a medical assessment. Id.

On March 20, 2009, Brightwood convened an MDT meeting, including D.L.'s mother and educational advocate, to determine D.L.'s eligibility for special education services. Id. at 212, 249. Over the advocate's objection, the MDT did not find the 2006 psycho-educational evaluation performed by Dr. Mack conclusive as to D.L.'s current eligibility for special education services and decided to withhold an eligibility determination until reevaluations were completed. Id. at 212. The MDT stated that D.L. would be awarded compensatory education services dating back to October 2006 if he was determined to be eligible for special education after testing. Id. at 214. The MDT developed a student evaluation plan ("SEP"), which included comprehensive psychological, social history, and speech and language evaluations. Id. at 219. The MDT meeting notes reflected that D.L.'s mother no longer desired that D.L. receive an OT evaluation. Id. at 215. On April 7, 2009, however, Ms. Long's counsel sent a letter to DCPS, stating that the parent's position on the OT evaluation had been misstated and that she wanted D.L. to receive the evaluation. Id. at 228.

On April 9, 2009, Plaintiffs filed a Due Process Complaint. Plaintiffs alleged that DCPS had (1) violated Child Find procedures by failing to identify D.L. as a student with a specific learning disability, develop an Individualized Educational Program ("IEP"), and/or make special education services available to the student; and (2) failed to conduct the re-evaluations requested by the parent and/or failed to conduct re-evaluations in a timely manner and reconvene an MDT to review evaluation results. Id. at 22.

On April 22, 2009, DCPS completed the speech and language evaluation of D.L. and determined that the results were not consistent with a diagnosis of speech and language impairment. Id. at 64-65. On April 30, 2009, DCPS completed the social history report, which indicated that D.L. continued to experience academic difficulties and behavior problems. Id. at 66-68. On May 12, 2009, DCPS completed the comprehensive psychological evaluation of D.L., and the results indicated that D.L. met the DCPS criteria for special education intervention. Id. at 69-83.

On May 18, 2009, DCPS convened a second MDT meeting to review the 2009 evaluations. Id. at 249. The MDT determined that D.L. was eligible for special education services as a learning disabled student. Id. at 251. Accordingly, DCPS developed an IEP consisting of fifteen hours per week of individualized instruction in and out of the general education setting, thirty minutes per week of behavioral support services, and one hour per month of speech and language consultation services.*fn2 Id. at 252-53. The MDT meeting notes indicate that the MDT thought that Brightwood would be unable to implement the IEP. Id. at 253. At the same May MDT meeting, DCPS refused to provide D.L. with compensatory education services from 2006. Id. at 252-53. DCPS also failed to complete additional testing that Plaintiffs had requested (e.g. an OT evaluation) or that Dr. Mack had recommended in her 2006 evaluation of D.L. (e.g. a BIP). Id. at 252-53.

D.L.'s mother and his educational advocate disagreed with the proposed IEP and sought a compensatory education plan including one hour per week of counseling, two hours per week of individualized tutoring in reading and math, one hour per week of independently 30 minutes provided speech-language therapy, summer camp to address social and emotional behavior deficits, and a Lindamood Bell assessment. Id. at 259. The parent and advocate also requested a BIP, which would have required completion of a functional behavioral assessment ("FBA"), and an OT evaluation. Id. at 256. The MDT declined to implement the suggested additions to the IEP. Id. at 253.

On June 4, 2009, Plaintiffs filed an Amended Due Process Complaint. Plaintiffs supplemented their initial Complaint with allegations that DCPS failed to (1) develop an appropriate IEP; (2)provide an appropriate placement for D.L.; (3) complete an OT evaluation; (4) conduct a BIP/FBA; and (5) provide D.L. with compensatory education services. Id. at 103-104.

On August 5, 2009, an administrative hearing was held. Id. at 126. Upon consideration of the evidence and testimony presented, the Hearing Officer issued a decision and order on August 15, 2009 dismissing Plaintiffs' Amended Complaint with prejudice. Id. at 11. The Hearing Officer determined that Plaintiffs had failed to show that Defendants violated the IDEA. Id.

Subsequently, on November 13, 2009, Plaintiffs brought a civil action in this Court challenging the Hearing Officer's decision pursuant to 20 U.S.C. § 1415(i)(2)(A). On March 4, 2010, Plaintiffs filed a Motion for Summary Judgment [Dkt. No. 12]. On April 2, 2010, Defendants filed a combined Cross-Motion for Summary Judgment and Opposition to Plaintiffs' Motion [Dkt No. 13]. On April 24, 2010, Plaintiffs filed a combined Reply to Defendant's Opposition and Opposition to Defendant's Cross-Motion [Dkt. No. 16]. On May 17, 2010, Defendants filed a Reply to Plaintiffs' Opposition [Dkt. No. 17].

II. Standard of Review

Summary judgment will be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). A fact is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The nonmoving party then must "go beyond the pleadings and by [its] own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotations omitted). See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (nonmoving party has affirmative duty "to provide evidence that would permit a reasonable jury to find" in its favor).

In deciding a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Ultimately, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or ...


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