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Evelyn Savoy, Parent and Next Friend of T.W v. District of Columbia

February 21, 2012

EVELYN SAVOY, PARENT AND NEXT FRIEND OF T.W., PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Evelyn Savoy filed suit as the parent and next friend of her son, T.W., seeking injunctive and declaratory relief against the District of Columbia under the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiff is appealing the Hearing Officer Determination which found that placing T.W. at Ballou Senior High School did not deny T.W. a free appropriate public education. Presently before the Court are the parties' cross-motions for summary judgment. Pl.'s Mot. for Summ. J., ECF No. [11]; Def.'s Cross-Mot. for Summ. J., ECF No. [13].*fn1 Upon consideration of the parties' briefs, the Administrative Record, and the applicable authorities, the Court finds the Hearing Officer Determination was correct. Therefore Plaintiff's Motion for Summary Judgment is DENIED and Defendant's Cross-Motion for Summary Judgment is GRANTED.

I. EVIDENTIARY ISSUES

Before addressing the merits of the parties' motions, the Court briefly turns to an issue with the Plaintiff's pleadings. In the Scheduling and Procedures Order, the Court emphasized that the parties were expected to "comply fully with Local Civil Rule LCvR 7(h)" in submitting statements of material facts not in dispute in support of their respective motions. 3/9/11 Order, ECF No. [9], at 1 (emphasis in original). The Court explained that

A party responding to a statement of material facts must respond to each paragraph with a correspondingly numbered paragraph, indicating whether that paragraph is admitted or denied. The responding party should include any information relevant to its response in that paragraph. If the responding party has additional facts that are not addressed in the corresponding paragraphs, the responding party should include these at the end of its responsive statement of facts. At all points, parties must furnish precise citations to the portions of the record on which they rely.

Id. at 1-2.

Both parties submitted statements of material facts in support of their respective motions. Pl.'s Stmt., ECF No. [11], at 16-19; Def.'s Stmt., ECF No. [14-2]. Defendant also filed a response to Plaintiff's statement, specifically indicating what paragraphs Defendant does not dispute, which assertions Defendant disputes, and in some cases correcting the inaccurate record citation supplied by Plaintiff. Def.'s Resp. Stmt., ECF No. [14-1]. By contrast, Plaintiff's Response Statement only responded to paragraphs 11 and 12 of Defendant's Statement. Pl.'s Resp. Stmt., ECF No. [15]. For the twenty five other paragraphs, Plaintiff states each paragraph "is not disputed to the extent that this paragraph contains a description of the cited documents, which speak for themselves and to which no response is necessary." Id. at ¶¶ 1-10, 13-27. Plaintiff's Response Statement is plainly deficient. The entire purpose of the statement of material facts is to enable the Court to determine which facts the parties agree upon without forcing the Court to resort to reviewing the documents individually. Plaintiff's Response Statement forces the Court to examine the administrative record to identify even non-controversial facts, defeating the entire purpose of Local Civil Rule 7(h). Moreover, it is simply disingenuous for Plaintiff to refuse to admit basic facts including T.W.'s age (Def.'s Stmt. ¶ 1), where T.W. attended school (id. at ¶ 2), or even the date of the Due Process Hearing (id. at ¶ 20). Since Plaintiff failed to follow the instructions provided by the Court and the Local Rules, the Court will treat all but paragraphs 11 and 12 of Defendant's Statement as conceded by Plaintiff.

II. BACKGROUND

A. Statutory Framework

The IDEA was enacted to "ensure that all children with disabilities have available to them a free appropriate public 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).*fn2 Once a child is identified as disabled, the school district must convene a meeting of a multi-disciplinary team ("MDT") to develop an individualized education program ("IEP") for the student. See § 1414.*fn3 The IEP must include a variety of information, including the child's current levels of academic achievement and functional performance, measurable annual goals, how the child's progress towards the goals will be measured, and the special education and related services to be provided to the child. § 1414(d)(1)(A)(I). The MDT is required to periodically review the child's IEP, at least once per year. § 1414(d)(4)(A)(I). The IDEA also provides procedures for parents of a child receiving services under the statute to contest placement decisions and the implementation of the IEP by the child's school. See § 1415.

B. Factual Background

T.W. is now a sixteen year old special education student. See Administrative Record ("A.R.") 20. T.W. attended the Children's Guild of Prince Georges County for seventh and eighth grade. Def.'s Stmt. ¶ 2. T.W. underwent a comprehensive psychological and social evaluation during the seventh grade (October 2008). Id. at ¶ 3. The evaluation team diagnosed T.W. with antisocial personality disorder. A.R. 30 (Psychological Evaluation). T.W. was further classified as having a learning disability, with low average verbal comprehension and perceptual reasoning abilities, borderline verbal comprehension, impulsiveness and oppositional tendencies. Def.'s Stmt. ¶ 3.

1. Placement at Ballou

On January 5, 2010, during T.W.'s eighth grade year, his MDT met to revise his IEP. Def.'s Stmt. ¶ 4. The IEP classified T.W. as learning disabled, and outlined goals for T.W. in math, reading, written expression, and emotional, social and behavioral development. Id. at ¶¶ 5-6. The IEP provided that T.W. should receive 28.5 hours of specialized instruction and 1.5 hours of behavioral support services each week, both outside the general education setting. Id. at ¶ 7. In describing the "least restrictive environment" where T.W. should be placed, the IEP stated General Education Rejected possible school failure insufficient supports available General Education w Sped Component Rejected services required to support IEP are not available Separate Day school Accepted- behavior modification program, small structured class size, on staff therapists provide support to enable [T.W.] to progress academically, socially and behaviorally.

A.R. 45 (all errors in original).

At the conclusion of the 2009-2010 school year, T.W. aged out of the Children's Guild. Def.'s Stmt. ¶ 10. T.W.'s MDT met in July 2010 to discuss T.W.'s placement for the 2010-2011 school year. Id. Plaintiff proposed placing T.W. at the High Road Academy in Lanham, Maryland. Id. at ¶ 13. The District proposed, and the MDT ultimately decided, to place T.W. at Ballou Senior High School, a public school in the District of Columbia. Id. at ¶ 11.

Dissatisfied with the results of the IEP review meeting, Plaintiff filed a Due Process Complaint on August 5, 2010. Def.'s Stmt. ¶ 14; A.R. 79-84 (Due Process Complaint). The Due Process Complaint alleged DCPS failed to provide T.W. with a free appropriate public education "by failing to determine an appropriate educational placement/location of services."

A.R. 81. Specifically, Plaintiff alleged that placing T.W. at Ballou was inadequate because it was not a "separate, fulltime, special education program," and that Ballou "cannot implement the student's IEP and cannot provide him the services to which he is entitled," because "Ballou is an inclusion program and has yet to be fully developed." Id. Plaintiff requested, among other things, that (1) T.W. be placed at High Road Academy; (2) T.W. undergo a new comprehensive psychological evaluation; (3) a new MDT meeting be held to update T.W.'s IEP; and (4) all future MDT meetings be scheduled through Plaintiff's counsel. Id. at 82.

2. Due Process Hearing

The Due Process Hearing commenced on October 14, 2010 in front of Hearing Officer Frances M. Raskin. A.R. 134 (Transcript of Due Process Hearing). Corrine Anyanwu, the head of administration at High Road Academy, testified on behalf of T.W., asserting that High Road Academy would be able to implement T.W.'s IEP. Id. at 151-162. Plaintiff testified, stating that T.W. had been suspended twice while attending Ballou, for one day each time. Id. at 178:9-18. Plaintiff indicated that when T.W. initially enrolled at Ballou, she routinely received calls from T.W.'s teachers regarding his behavior, but that the calls stopped after T.W.'s second schedule change. Id. at 188:2-4. Plaintiff admitted she never visited Ballou, and did not know anything about the program in which T.W. was enrolled. Id. at 181:3-21, 183:13-184:2.

Dori Cook, T.W.'s educational advocate also testified. See id. at 191. Plaintiff's counsel asked Ms. Cook about the July 2010 meeting where T.W.'s MDT decided to place T.W. at Ballou instead of High Road Academy. Ms. Cook mentioned that T.W.'s social worker at the Children's Guild, Ms. Shaun Feltom, purportedly wanted to modify the behavioral program implemented for T.W. Id. at 200:20-201:16. The District objected to this testimony, and after clarifying that Ms. Cook was discussing what Ms. Feltom had purportedly stated at a previous MDT meeting, not the July 2010 meeting, the Hearing officer limited Ms. Cook's testimony to what Ms. Cook stated at the July meeting, and not what the social worker orally recommended on some earlier occasion. Id. at 202:16-205:5. It was clarified at this point in the Hearing record by Plaintiff's counsel that Plaintiff was not challenging the appropriateness of T.W.'s IEP. Id. at 203:7-14. Ms. Cook indicated she observed T.W. in class at Ballou on two occasions. Id. at 212:3-9. On the first occasion, Ms. Cook observed T.W. with the first iteration of his schedule, observing his math and science classes. Id. at 213:1-4. Ms. Cook observed T.W. a second time in a new math class. Id. at 219:4-9. During the second observation, Ms. Cook noted that two additional adults in the math classroom, whom she inferred were support staff, failed to provide any "academic or instructional support" to T.W. Id. at 220:12-19. T.W. apparently sat by himself and did not do any work, routinely putting his head down on his desk. Id. at 220:19-221:22. From this observation, Ms. Cook concluded T.W.'s behavior intervention plan was not being properly implemented and that he was being educated in "inclusion" classes with non-disabled students rather than a special education classes. Id. at 221:16-22, 225:11-227:12. Under ...


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