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Barbara Mccrary v. District of Columbia

June 16, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Barbara McCrary, on behalf of her minor daughter S.M., filed a Due Process Complaint Notice under the Individuals with Disabilities Education Act, alleging that her daughter had been denied a free and appropriate public education as required by law. Following a due process hearing and the issuance of a Hearing Officer's Determination, Plaintiff filed this action for attorney fees under the IDEA. Because the Court finds that Plaintiff was not the prevailing party in the hearing below, the Court will deny Plaintiff's request.


A. The IDEA Statutory Framework

The purpose of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A). "Implicit" in the IDEA's guarantee "is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982). As a condition of receiving funding under the IDEA, school districts are required to adopt procedures to ensure appropriate educational placement of disabled students. See20 U.S.C. § 1413. A student's eligibility for a FAPE under the IDEA is determined by the results of testing and evaluating the student, and the findings of a "multidisciplinary team" or "individualized education program team." § 1414. Such a team consists of the parents and teachers of the disabled student, as well as other educational specialists, who meet and confer in a collaborative process to determine how best to accommodate the needs of the student and provide a FAPE. See § 1414(d)(1)(B).

School districts must also develop a comprehensive plan, known as an individualized education program (IEP), for meeting the special educational needs of each disabled student. See§ 1414(d)(2)(A). The IEP must be formulated in accordance with the terms of the IDEA and "should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204. "If no suitable public school is available, the school system must pay the costs of sending the child to an appropriate private school." Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (citation and alterations omitted).

The IDEA requires that children with disabilities be placed in the "least restrictive environment" so that they can be educated in an integrated setting with children who are not disabled to the maximum extent appropriate. See§ 1412(a)(5)(A). The IDEA also guarantees parents of disabled children the opportunity to participate in the evaluation and placement process. See§§ 1414(e), 1415(b)(1). Parents who object to their child's "identification, evaluation, or educational placement" are entitled to an impartial due process hearing, see§§ 1415(b)(6), (f)(1), at which they have a "right to be accompanied and advised by counsel" and a "right to present evidence and confront, cross-examine, and compel the attendance of witnesses."

§ 1415(h). A qualified impartial hearing officer conducts the due process hearing in accordance with the Act. 5 D.C. Mun. Regs. §§ 3030.11, 3030.13.

Parents "aggrieved by" a hearing officer's findings and decision may bring a civil action in either state or federal court. § 1415(i)(2)(A); 5 D.C. Mun. Regs. § 3031.5. The district court has remedial authority under the Act and broad discretion to grant "such relief as the court determines is appropriate" under the IDEA as guided by the goals of the Act. § 1415(i)(2)(C)(iii).

The IDEA gives this Court authority to "award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party" in an action under the IDEA. 20 U.S.C. § 1415(i)(3)(B)(i)(I). This includes the authority to award fees to a party who has prevailed in an administrative due process hearing. See Moore v. District of Columbia, 907 F.2d 165, 166 (D.C. Cir. 1990).

B. S.M.'s Education

S.M. was a disabled sixteen-year-old high-school student during the 2008-09 school year. Hearing Officer's Determination ("HOD") at 4. She had attended three schools in three years: a District of Columbia public charter school in 2006-07 (the "Public Charter"), a charter school in 2007-08 (the "Charter"), and a private school selected by her mother in 2008-09 (the "Private School"). Id. During the 2006-07 school year, while S.M. was in ninth grade at the Public Charter, she began "skipping school," accumulated "excessive absences," and "basically received all Fs there." Id. at 5. "After the Public Charter retained [S.M.] in the 9th grade, [Plaintiff] withdrew [S.M.] from the Public Charter and placed her in the Charter." Id.

During Fall 2007, the Charter conducted various evaluations of S.M. and prepared an IEP for her. Id. at 4. S.M. was classified as having multiple disabilities and, pursuant to the IEP, was "to receive 13 hours of specialized instruction, 1 hour of speech and language services, .5 hour of occupational therapy services, and 1 hour of psychological counseling services, for a total of 15.5 hours of special education and related services each week. . . . [S.M.] was also afforded planning services, which consisted of collaborations between her special education and general education teachers . . . ." Id. at 4-5. Although S.M. continued to have unexcused absences at the Charter, her "final report card for SY 2007/08 reveals that she passed all of the [required] classes she took at the Charter," and Plaintiff "did not have any concerns about [S.M.]'s progress at the Charter, because [she] was getting her work done and she was improving." Id. at 5-6.

In Fall 2008, Plaintiff was told by the Charter that S.M. had not been registered for the coming school year and, as the school was full, would have to be placed on the waiting list. Id. at 6. Instead of placing S.M. on the waiting list, Plaintiff made the unilateral decision to enroll her at the Private School. Id. Plaintiff did not, however, pay S.M.'s Private School tuition. Id. S.M. began to accumulate unexcused absences at the Private School as well, and "the head of the Private School was unable to explain exactly how the school ensures that [S.M.] receives the proper amount of specialized instruction called for by her IEP while the special education staff are rotating through the classrooms." Id. at 7.

On October 15, 2008, Plaintiff filed a Due Process Complaint Notice against DCPS and the Charter, alleging that DCPS and the Charter "denied [S.M.] a free appropriate public education ('FAPE') by failing to (1) evaluate [S.M.] as requested by [Plaintiff] through counsel, (2) complete [S.M.]'s triennial evaluations, (3) evaluate [S.M.] in all areas of suspected disability, (4) complete a comprehensive and appropriate vocational plan, (5) provide [S.M.] with an appropriate IEP, (6) provide [S.M.] with all appropriate special education and related services, develop a vocational/transition plan, and provide transition services, ...

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