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DL v. District of Columbia

United States District Court, District of Columbia

June 10, 2015

DL, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

Plaintiffs in this class action challenge the District of Columbia's alleged failure to implement policies, procedures, and practices to ensure its compliance with its duties under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); and District of Columbia law.

Plaintiffs now move the Court for partial summary judgment as to the District's liability through 2007 with respect to each subclass's claims. Plaintiffs also seek judgment pursuant to Rule 52(c) of the Federal Rules of Civil Procedure on the District's liability for the period from January 1, 2008, through April 6, 2011, with respect to each subclass's claims.

The District moves the Court to exclude the expert reports and testimony of Drs. Carl Dunst and Leonard Cupingood. Defs.' Mot. to Exclude, and to grant summary judgment in its favor as to the claims of all plaintiffs from March 22, 2010 to the present.

I. BACKGROUND

A. Statutory Scheme

Plaintiffs-residents of the District of Columbia and former preschool-age children with various disabilities-filed suit in 2005, alleging that the District failed to provide them a free appropriate public education ("FAPE") in violation of the Individuals with Disabilities Education Act ("IDEA").

Congress enacted the IDEA "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). In exchange for federal funding, the IDEA requires that states and the District of Columbia "establish policies and procedures to ensure... that free appropriate public education [FAPE]... is available to disabled children." Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (internal quotations omitted); see also 20 U.S.C. § 1412(a)(1)(A). Under the IDEA, "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction." Reid, 401 F.3d at 518. Instead, the IDEA imposes an affirmative obligation on school systems to "ensure that all children with disabilities residing in the State... regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated." Id. at 519 (internal quotations omitted); 20 U.S.C. § 1412(a)(3)(A). The District's laws implementing the IDEA require that once a potential candidate for special education services is identified, the District must conduct an initial evaluation and make an eligibility determination within 120 days. D.C. Code § 38-2561.02(a). The duties to identify, evaluate, and determine eligibility for disabled children are collectively known as the "Child Find" obligation.

Children under three years of age who are identified, evaluated, and determined eligible may receive early intervention services under Part C of the IDEA. For these children, the Act requires a "smooth and effective" transition from Part C's early intervention services to Part B's preschool special education programs. 20 U.S.C. § 1412(a)(9). A smooth and effective transition is one that (1) begins no less than 90 days prior to the child's third birthday; (2) does not include a disruption in services between Part C and Part B services; and (3) involves Part B personnel. Pls.'s Mot. for Class Cert. and Reinstatement of Findings of Liability and Order Granting Relief, Ex. 6 (Expert Report of Carl J. Dunst, May 11, 2009), at 14; 34 C.F.R. 303.209. The transition process must include a conference between the child's family and school officials to determine eligibility for Part B services and to develop a transition plan and an Individualized Education Program ("IEP"). The goal is "a seamless transition between services" under Parts C and B of the Act. 34 C.F.R. 303.209.

When executed properly, the early intervention mandated by the IDEA "can work a miracle, " allowing an estimated 75-80% of disabled children to enter "kindergarten alongside every other ordinary five-year-old-without needing further supplemental special education." DL v. District of Columbia, 845 F.Supp.2d 1, 5 (D.D.C. 2011) ("2011 Opinion").

B. Procedural History

The plaintiffs allege that the District has failed in its obligations to a large number of disabled children. Specifically, the plaintiffs aver that the District has engaged in a practice of failing to identify disabled children, failing to evaluate and make eligibility determinations for identified children, and failing to provide a smooth and effective transition from Part C to Part B special education services. And because they allege that the District's failure is pervasive and systemic, plaintiffs sought to represent a class of children who, like themselves, were denied special education services by the District.

In August 2006, this Court certified a plaintiff class pursuant to Federal Rule of Civil Procedure 23(b)(2), defining the class as:

All children who are or may be eligible for special education and related services, who live in, or are wards of, the District of Columbia, and (1) whom defendants did not identify, locate, evaluate or offer special education and related services to when the child was between the ages of three and five years old, inclusive, or (2) whom defendants have not or will not identify, locate, evaluate or offer special education and related services to when the child is between the ages of three and five years old, inclusive.

DL v. District of Columbia, 237 F.R.D. 319, 324 (D.D.C. 2006), ECF No. 57.

Following extensive discovery on the District's IDEA performance through 2007, the parties filed cross motions for summary judgment. The parties did not dispute that "the systems in place to serve the birth-to-five population in the District of Columbia were inadequately designed, supported, and facilitated across many years." DL v. District of Columbia, 730 F.Supp.2d 84, 96 (D.D.C. 2010) ("2010 Opinion"). The District's systemic failure to comply with the IDEA resulted in yearly citations for noncompliance from the federal Office of Special Education Programs ("OSEP"). Id. at 97. Finding no genuine dispute that the District's attempts to identify, evaluate, and determine eligibility for disabled children were inadequate, the Court granted summary judgment on liability as to the plaintiff class's Child Find claim. Id.

Additionally, the parties agreed that "the procedures used by [the District] to screen children exiting Part C were in many cases not necessary and delayed provision of preschool special education." Id. at 98. Moreover, these screening procedures "were unreliable and were not always aligned with accepted practices in the field." Id. The Court therefore granted summary judgment on liability as to the plaintiff class's Part C to Part B transition claim. Id. The Court also found that, at least through 2007, defendants had violated the Rehabilitation Act by demonstrating "bad faith or gross misjudgment" in failing to bring themselves into compliance with the IDEA. Id. at 100.

As the data available at the time of summary judgment was limited to the period through 2007, summary judgment and the initial findings as to the District's liability were limited to that time period.

On April 6 and 7, 2011, the Court held a bench trial to determine the District's liability for the period of 2008 through the trial date. Based on evidence presented at trial, the Court found that the District provided special education services to less than 6% of its total child population, despite statistical projections that the District should identify and serve at least 12%. 2011 Opinion at 10. Of those disabled children who were identified, the District failed to provide timely evaluations to 25-45% and timely eligibility determinations to 56.75%. Id. at 11. As for transitions from Part C to Part B services, the District provided smooth and effective transitions for 8.22% of children in 2008, 30.25% in 2009, and between 38-79% in 2010-2011. Id. at 12. The Court noted the District's efforts to reform its special education services in response to this litigation, but found that even given those reforms, the District's policies were inadequate to meet its obligations under the IDEA. Id. at 15-17. Indeed, notwithstanding its reform efforts, the District was cited by the federal OSEP for noncompliance for each of the four years prior to trial. Id. at 17. Thus, the Court found that the District's failure to institute adequate Child Find practices resulted in the denial of a FAPE to a substantial number of disabled children and that the District failed to comply with its legal duty to provide a smooth and effective transition to a significant portion of disabled children. Id. at 21-23. The Court also found that the District demonstrated bad faith or gross misjudgment by knowingly failing to comply with the IDEA and therefore violated Section 504 of the Rehabilitation Act, which prohibits discrimination in programs receiving federal funding. Id. at 23; 29 U.S.C. § 749(a).

Given these findings, the Court granted the plaintiff class declaratory relief and imposed a structural injunction enjoining the District to comply with its legal obligations under the IDEA. Id. at 24-30.

Two months after the April 2011 trial, and before this Court issued its final decision, the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), which clarified the proper interpretation of the commonality requirement for class certification under Rule 23(a)(2). Wal-Mart involved a putative class of one and a half million women, all current or former employees of Wal-Mart, alleging that "the discretion exercised by their local supervisors over pay and promotion matters violate[d] Title VII by discriminating against women." 131 S.Ct. at 2546. Noting that the pay and promotion decisions were made by thousands of geographically-dispersed managers, the Court held that "[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Id. at 2552 (emphasis in original). To establish commonality, the Court held that a class must present a common contention that is "capable of classwide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. at 2551.

Based in part on the Wal-Mart decision, the District sought to decertify the class, arguing that the plaintiff class improperly "bundled together [in their Complaint] multiple different allegations of a variety of different provisions of the IDEA, the Rehabilitation Act, and local District of Columbia law" and "amalgamat[ed]... a variety of provisions of a single statutory scheme." DL v. District of Columbia, 277 F.R.D. 38, 42 (D.D.C. 2011). In effect, the District argued that the IDEA could be violated in many different ways, and that it was improper to combine these multiple forms of IDEA violations in one broad class. The plaintiffs responded by seeking to recertify the class as four distinct subclasses, each consisting, respectively, of disabled children that the District failed to (1) identify; (2) timely evaluate; (3) determine eligibility; and (4) provide a smooth and effective transition from Part C to Part B services. This Court denied the District's motion, holding that members of the plaintiff class had suffered a common injury, namely "denial of their statutory right to a free appropriate public education." Id. at 45. Moreover, this Court held that the plaintiffs presented the common question whether class members received a FAPE and noted that the class members' "differing allegations only represent the differing ways in which defendants have caused class members' common injury." Id. At the same time, the Court extended the Court's liability through the trial date of April 6, 2011. 2011 Opinion at 1. The District appealed.

On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed and remanded this Court's certification of the plaintiff class, holding:

After Wal-Mart it is clear that defining the class by reference to the District's pattern and practice of failing to provide FAPEs speaks too broadly because it constitutes only an allegation that the class members "have all suffered a violation of the same provision of law, " which the Supreme Court has now instructed is insufficient to establish commonality given that the same provision of law "can be violated in many different ways." Wal-Mart, 131 S.Ct. at 2551. In the absence of identification of a policy or practice that affects all members of the class in the manner Wal-Mart requires, the district court's analysis is not faithful to the Court's interpretation of Rule 23(a) commonality.

DL v. District of Columbia, 713 F.3d 120, 126 (D.C. Cir. 2013). The Circuit therefore vacated the class certification order and remanded the case to this Court "for reconsideration of whether a class, classes, or subclasses may be certified, and if so, thereafter to redetermine liability and appropriate relief." Id. at 129.

On remand, plaintiffs sought certification of four subclasses for their claims for declaratory and injunctive relief under Rule 23(b)(2), as well as reinstatement of the Court's previous findings of liability and order granting relief. Pls.' Mot. to Certify Class and for Reinstatement of Findings of Liability and Order Granting Relief, ECF No. 358. The Court granted plaintiffs' request for the certification of subclasses, certifying four classes. Briefly, the classes include children who did not or will not: (1) be identified and/or located; (2) receive an initial evaluation within 120 days of referral; (3) receive a determination of eligibility within 120 days of the date of referral; and (4) have a "smooth and effective" transition from part C to Part B by the child's third birthday. DL v. District of Columbia, 302 F.R.D. 1, 18 (D.D.C. 2013) ("2013 Opinion"). However, the Court denied plaintiffs' request for reinstatement of the Court's previous findings of liability, stating that "[r]einstatement of the prior liability and remedial orders would [ ] be plainly inappropriate." Id. The Court stated:

The Court has made findings of fact regarding the District's IDEA performance through April 2011, but it is clear that much has changed since that time. As such, the Court will, as specified in a separate order issued this date, commence proceedings to make findings of fact on the District's IDEA compliance with respect to each subclass since April 2011. The Court will then, as instructed by the Circuit, redetermine liability and the appropriate remedy.

Id. at 19.

The parties then conducted discovery: Fact discovery closed on August 29, 2014, and expert discovery closed on September 26, 2014.

II. PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO DEFENDANTS' LIABILITY THROUGH 2007

Plaintiffs move the Court for partial summary judgment as to the defendants' liability through 2007 with respect to each subclass's claims.

A. Summary Judgment Standard

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party's evidence is to be believed, and all reasonable inferences from the record are to be drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

B. Analysis

As noted above, this Court previously granted summary judgment in favor of plaintiffs. See 2010 Opinion. Plaintiffs rely on these findings in arguing for summary judgment in their favor. The District argues that this would be inappropriate because upon decertifying the single class, the D.C. Circuit vacated this Court's orders finding liability and ordering relief. Furthermore, this Court previously declined to automatically reinstate liability after the D.C. Circuit remanded the case.

While automatic reinstatement would have been inappropriate, plaintiffs are not precluded from moving for summary judgment on remand. As this Court stated, "[e]ach of the claims asserted by the subclasses was part of the initial complaint" and has been "since the inception of this case." 2013 Opinion at 22. "The district therefore conducted discovery, deposed and cross examined witnesses, and made motions to this court knowing that these four claims were the subject of this case." Id. The four new subclasses merely correspond to four separate duties that have been the subject of the plaintiffs' claims from the beginning and were indeed stated in their Amended Complaint. First Am. Compl., ECF No. 61 at 24-27, 29-31. The District has not explained why this changes the substance of plaintiffs' complaint or its answer.

Of course, on remand the plaintiffs are again held to the standards of Rule 56 and must demonstrate an absence of material fact as to each of the individual subclass claims. Indeed, the District seems to concede that plaintiffs would be entitled to the relief they seek for this period if "the facts and analysis justifying [the previously granted] summary judgment to Plaintiffs' now-decertified class... are legally sufficient to justify summary judgment as to each of Plaintiffs' subclass claims." Defs.' Opp'n to Pls.' Mot. S.J. 2.

1. IDEA Claims

The IDEA, in conjunction with implementing regulations and the D.C. Code and Regulations, sets forth duties and processes schools must follow in offering special education services to children with disabilities. Pursuant to these laws and regulations, the District is required to put in effect policies and procedures to ensure that all children with disabilities who are in need of special education and related services are identified, located, and evaluated. 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. 300.125(a). The IDEA also requires that defendants ensure a "smooth and effective transition" from Part C to Part B services for disabled infants and toddlers by their third birthday. 20 U.S.C. § 1412(a)(9). Plaintiffs have the burden of proving a violation of the IDEA. See Schaffer v. Weast, 546 U.S. 49, 51 (2005).

In its prior grant of summary judgment, this Court analyzed the District's compliance with each of the four obligations at issue under the IDEA with respect to each of the four duties. After extensive discovery, the Court set forth material undisputed facts supporting its conclusion that there was no genuine dispute that the District's attempts to identify, evaluate, determine eligibility of, and transition disabled children were inadequate through and including 2007. These facts are sufficient to establish the District's liability under the IDEA on each subclass's claim.

a. Identifying children

In 2010, this Court found no genuine issue of material fact on the issue of the District's failure to identify children. This Court held: "There is no genuine dispute that defendants' attempts to find disabled children in the District... were inadequate. Further, there is no genuine dispute that defendants actually failed to find these disabled children." 2010 Opinion at 97.

The Court reasoned that "[t]he parties agree that, at least through and including the year 2007, defendants' refusal to accept and act on referrals made by primary referral sources was impeding identification of children eligible for preschool special education.'" Id. at 96. The parties also agreed that "[d]efendants h[ad] pursued the same Child Find activities for several years without achieving a significant increase in the number of preschool-age children served under Part B." Id.

Thus, plaintiffs have already shown and the Court has already found that there is no material dispute: Prior to 2007, the District failed to adequately identify children pursuant to its duties under the IDEA.

b. Initial evaluations and eligibility determinations

Similarly, this Court held: "[T]here is no genuine dispute that defendants' initial evaluations were inadequate." Id. at 97.

The parties agreed that in 2001, OSEP determined that the District had not met the requirement for timely evaluations under their Compliance Agreement, and thus designated the District as a "high risk grantee." Id. at 96. OSEP thus attached special conditions to the District's federal grant for that year, including requirements to ensure that the District conducted timely evaluations. Id. The parties agreed that OSEP cited the District for their failure to comply in each subsequent year through and including 2008. Id.

Relatedly, the Court found no genuine issue of material fact as to the issue of eligibility determinations.

Plaintiffs assert that [f]rom 2000 through 2008, 62.02% of all children ages 3 through 5 received an eligibility determination within 120 days of referral. Plaintiffs further assert that [f]rom 2000 through 2008, only 65.80% of children ages 3 through 5 deemed eligible for special education received an eligibility determination within 120 days of referral. Defendants challenge these two assertions solely on the basis that they are based on Dr. Cupingood's testimony, which they argue is inadmissible. The Court held in a separate order issued this same date, however, that Dr. Cupingood's testimony is admissible as expert testimony. The Court therefore agrees with plaintiffs' assertions.

Id. at 97 (quotations omitted). The District did not dispute-then or now-that it failed to timely make initial evaluations and eligibility determinations through 2007. These two subclasses have therefore met their burden under Rule 56.

c. Transitions

Finally, the Court specifically held that at least through and including the year 2007, "defendants failed to comply with their obligation to ensure a smooth and effective transition for disabled children from Part C to Part B, in violation of § 1412(a)(9) of the IDEA." Id. at 98. This Court stated:

There is no genuine dispute that defendants failed to ensure effective transitions from Part C to Part B, as an overwhelming majority of disabled children in certain years did not have an individualized education plan and enrollment in preschool special education by their third birthdays. There is no genuine dispute that the District's procedures to facilitate these transitions were inadequate.

Id. The Court explained this holding by noting several undisputed facts. The parties agreed that:

• Defendants' actions "didn't result in effective transitions for children into Part B from Part C." Id. at 98.
• For the 2004-05 school year, only 17% of the eligible children referred by Part C to Part B had an individualized education plan developed and ...

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