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Garmany v. District of Columbia

United States District Court, District of Columbia

March 30, 2013

ROSEINIA GARMANY, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendants

For ROSEINIA GARMANY, Parent and Next Friend of D.G., Plaintiff: Robert W. Jones, LEAD ATTORNEY, JAMES E. BROWN & ASSOCIATES, PLLC, Washington, DC.

For DISTRICT OF COLUMBIA, A Municipal Corporation, Defendant: Veronica A. Porter, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.

OPINION

Page 178

RICHARD W. ROBERTS, United States District Judge.

MEMORANDUM OPINION

Plaintiff Roseinia Garmany brings this action on behalf of her son D.G. against the District of Columbia (the " District" ) under the Individuals with Disabilities in Education Act, as amended by the Individuals with Disabilities in Education Improvement Act (collectively, " IDEA" ), 20 U.S.C. § 1400 et seq. The parties have cross-moved for summary judgment, disputing whether the hearing officer erred in dismissing Garmany's due process complaint. Because Garmany has not satisfied her burden of showing that the hearing officer erred, summary judgment will be granted in favor of the District.

BACKGROUND

During the 2009 to 2010 school year, D.G. was a student at Lincoln Middle School (" Lincoln" ) in Washington D.C. Administrative Record (" AR" ) at 303. A January 3, 2010 psychological evaluation classified D.G. as a learning disabled student and stated that " frequent suspensions are not the remedy for [D.G.'s] behaviorial problems[.]" Id. at 313-14. On January 11, 2010, the District of Columbia Public Schools (" DCPS" ) convened a multi-disciplinary team (" MDT" ) meeting, attended by Garmany and D.G., to review D.G.'s 2009 individualized education program (" IEP" ) and draft a new IEP (" January IEP" ). Id. at 334-37, 362-400.[1] In conjunction with the January IEP, the MDT developed a behavioral improvement plan (" BIP" ) which includes a scheme of rewards and consequences for D.G.'s behavior in school. Id. at 335-36, 405-06. At the end of the school day on January 29, 2010, D.G. had a dispute with another student during which he accidentally struck his teacher. Id. at 920, 1067-68. Lincoln dismissed D.G. from school, id. at 920, 1068, and according to Garmany, imposed on D.G. a three-day suspension which D.G.

Page 179

served in an in-school suspension (" ISS" ) on February 1 and 2, and an out-of-school suspension on February 3. Id. at 937. D.G. got in a fight on February 4 and spent the rest of that school day in an in-school suspension. Id. at 921, 938. On February 5, 2010,[2] Garmany filed an administrative due process complaint alleging that by imposing these suspensions, DCPS failed to implement D.G.'s January IEP. Garmany's complaint also asserted that Lincoln was an inappropriate placement for D.G. and could not provide for D.G.'s educational needs. Id. at 939-40. D.G.'s new IEP (" February EIP" ) was finalized on February 19, 2010 and DCPS issued a placement notice for D.G. to attend Hamilton Academy (" Hamilton" ). Id. at 1147-48, 1158-59.

In March 2010, the hearing officer held a hearing and issued a determination and order dismissing Garmany's due process complaint. Id. at 917-30. Ruling on the issue of the propriety of Lincoln's actions on January 29 and February 4, the hearing officer found that D.G.'s January 29 dismissal was not a suspension, and that D.G. was in school attending classes in the ISS room on February 4, 2010. Id. at 924. The hearing officer stated that D.G.'s day in the ISS room on February 4 was not a suspension in violation of the January IEP because D.G. received services in school and the MDT had discussed using the ISS room after D.G.'s behavioral infractions when preparing the January IEP. Id. at 925. In addition, the hearing officer concluded that the February 3 out-of-school suspension was not a " material failure" to implement the January IEP. Id. The hearing officer also found that Hamilton was an appropriate placement for implementing D.G.'s February IEP because " it provides the small class structure and the intensive behavioral support services that [D.G.] needs . .., and the program is reasonably designed to confer educational benefit to [D.G.]." Id. at 929.

The plaintiffs move for summary judgment seeking reversal of the hearing officer's determination (" HOD" ) arguing that DCPS failed to implement D.G.'s January IEP and Hamilton is an inappropriate placement for implementing D.G.'s February IEP. In particular, Garmany asserts that the January IEP and BIP prohibited in-school and out-of-school suspensions and DCPS did not use the measures outlined in the BIP for D.G.'s misbehavior. Pl.'s Mem. of P. & A. in Supp. of its Mot. for Summ. J. (" Pl.'s Summ. J. Mem." ) at 12-13; Pl.'s Opp'n to Def.'s Cross-Mot. for Summ. J. and Reply to the Def.'s Opp'n to Pl.'s Mot. for Summ. J. (" Pl.'s Opp'n" ) at 6-7.[3] Garmany also argues that the hearing officer erred in finding that Hamilton was an appropriate placement because Garmany was not sufficiently involved in the placement decision process and because Garmany's testimony at the administrative hearing reflected that Hamilton could not implement D.G.'s February IEP. Pl.'s Summ. J. Mem. at 14-17.

Page 180

The District cross-moves for summary judgment arguing that the January IEP and the BIP did not prohibit suspensions as a punishment for D.G. and, even if they did, that DCPS did not suspend D.G. Def.'s Mem. in Supp. of Def.'s Cross-Mot. for Summ. J. and Opp'n to Pl.'s Mot. for Summ. J. at 12-17. The District also argues that even if D.G. was suspended for one day, that suspension did not deny D.G. a free and appropriate education (" FAPE" ). Id. at 17-18. In addition, the District asserts that Hamilton was an appropriate placement for D.G. and that any procedural ...


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