United States District Court, D. Columbia.
For ROBIN MCALLISTER, Plaintiff: Douglas Tyrka, LEAD ATTORNEY, TYRKA & ASSOCIATES, LLC, McLean, VA.
For DISTRICT OF COLUMBIA, Defendant: Veronica A. Porter, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.
CHRISTOPHER R. COOPER, United States District Judge.
Plaintiff Robin McAllister claims that the District of Columbia Public Schools (" DCPS" ) denied her son, J.R., a free and appropriate public education (" FAPE" ) in violation of federal law when it changed his special education placement from a private academy to his neighborhood public high school. Following an administrative hearing at which the parties presented conflicting and, in the hearing officer's opinion, unconvincing testimony as to whether the public school could meet J.R.'s educational needs, the hearing officer dismissed McAllister's administrative complaint. Following the parties' cross-motions for summary judgment on McAllister's complaint to this Court, Magistrate Judge John M. Facciola issued a recommendation to deny McAllister's motion and to grant the District's. Finding no quarrel with how the hearing officer weighed the conflicting testimony and no reason to upset her credibility determinations, the Court adopts the magistrate judge's recommendation.
Robin McAllister brings this action under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq., claiming that the DCPS denied her son, J.R., a free and appropriate public education (" FAPE" ) as required under the Act. Compl. ¶ 1. A March 2010 Individualized Education Program (" IEP" ) recommendation determined that J.R. required a " full time therapeutic educational setting," and for the 2010-2011 school year J.R. attended Rock Creek Academy, a private special-education school. Administrative Record (AR) at 5, 35. In March 2011, however, after Rock Creek informed DCPS that it would seek an alternative placement for J.R. " due to ongoing, serious concerns with safety, security, and stabilization," DCPS notified McAllister that it would transfer J.R. to Spingarn Senior High School, J.R.'s neighborhood public school. Id. at 51-52. Dissatisfied with the new placement, McAllister declined to enroll J.R. at Spingarn, and he did not attend school at all during the first half of the 2011-2012 school year. Id. at 5. J.R. was then incarcerated in a D.C. youth detention facility for a period of 46 days, from December 26, 2011 to February 9, 2012. Id. at 260. Following his release, McAllister enrolled J.R. in another private school, Accotink Academy, which she claims provided J.R. a therapeutic environment in conformity with his IEP. Compl. ¶ ¶ 18-20.
McAllister challenged J.R.'s placement at Spingarn in a due process complaint against DCPS. At the administrative hearing, McAllister testified that she objected to sending J.R. to Spingarn because she thought it was unsafe and because her niece's IEP has not been implemented by the school, id. at 207-208, yet she admitted on cross-examination that she did not attempt to determine if the school would implement J.R.'s IEP. Id. at 210-11. McAllister added that J.R.'s IEP had not been implemented while he was incarcerated. Id. at 206.
McAllister also offered testimony from Sharon Millis, a special education advocate and expert, who testified that she had visited Spingarn " many times and . . . knew that there was not a program that could meet [J.R.'s] IEP." Id. at 147. Millis further stated that she spoke with Dr. Patricia Ohuoha, Spingarn's special education coordinator, who told her that Spingarn did not have a full time therapeutic
placement. Id. at 148, 150. Counsel for DCPS did not object to Millis's testimony.
DCPS called just one witness at the hearing: Nicole Garcia, a special education coordinator for the school system who had proposed J.R.'s placement at Spingarn. Id. at 234-35. Garcia testified that she too spoke with Dr. Ohuoha but that--contrary to Millis's testimony--Ohuoha told her that Spingarn could implement J.R.'s IEP. Id. at 247. McAllister's counsel objected to this testimony as hearsay. Id. at 242. While correctly noting that " rules of evidence are loosely construed an administrative due process hearing," the hearing officer allowed the testimony to the extent it was being " presented to show the basis for the witness' actions" --i.e., Garcia's placement of J.R. at Spingarn--but not to prove " the veracity of Dr. Ohuoha's statements." Id. at 245-46. Neither side chose to call Dr. Ohuoha.
In her written determination, the hearing officer ruled that McAllister failed to prove that Spingarn was not an appropriate placement. Id. at 13-14. The hearing officer concluded that McAllister's own testimony--that Spingarn was dangerous and did not implement her niece's IEP--was insufficient to support a finding that the school could not satisfy J.R.'s IEP. Id. at 9. Moving to Millis and Garcia, the hearing officer found neither witness credible, calling their testimony " self contradictory," " twisted," and " not totally candid." Id. at 7. The hearing officer explained that she had not considered either witness' testimony for the truth of " Dr. Ohouha's view of the program at Spingarn" and that, because neither party chose to call Dr. Ohouha herself, " neither side presented me with evidence that substantiates [its] position regarding the proposed placement at Spingarn." Id. at 8. The hearing officer thus dismissed McAllister's due process complaint.
In her complaint to this Court, McAllister seeks: (1) a declaratory judgment that DCPS has denied J.R. a FAPE since the date of the Spingarn placement, including the period of his incarceration in 2011-2012; (2) compensation for the costs of enrolling J.R. in Accotink; (3) an order that DCPS fund J.R.'s continued education there; and (4) attorney's fees and costs. Compl. at 4. Following the Court's referral of the case to Magistrate Judge John M. Facciola for pre-trial management, the parties filed cross-motions for summary judgment. Magistrate Judge Facciola concluded that " the [hearing officer's] handling of the matter was perfectly consistent with the law and logic." Report & Recommendation at 11. On the adequacy of the Spingarn placement, he observed that the conflicting testimony of Millis and Garcia " cancelled each other out" and left the hearing officer with only the " untested opinion" of McAllister. Id. at 10-11. He further found that J.R. was not entitled to compensatory education because McAllister failed to prove that Spingarn was an inappropriate placement and that McAllister had waived any claims regarding J.R.'s education while incarcerated by failing to raise them in her due process ...