ORDER
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
Upon
careful consideration of the record in this case and the
Magistrate Judge's Report and Recommendation filed July
15, 2019, and hearing no objections from the Defendant, the
Court hereby ADOPTS the Report of the Magistrate Judge and
ACCEPTS her Recommendation. Accordingly, it is hereby
ORDERED
that [12] Plaintiffs' Motion for Summary Judgment be
GRANTED. It is further
ORDERED
that [14] Defendant's Motion for Summary Judgment be
DENIED.
SO
ORDERED.
REPORT
AND RECOMMENDATION
DEBORAH A. ROBINSON UNITED STATES MAGISTRATE JUDGE.
Plaintiff
Arika Woodson commenced this action pursuant to the
Individuals with Disabilities Education Improvement Act of
2004 (“IDEA”), 20 U.S.C. §§ 1400-1482,
and the Special Education Student Rights Act of 2014
(“Student Rights Act”) D.C. Code §
38-2571.02 - 38-2573.01, seeking judicial review of a final
decision of an Independent Hearing Officer
(“IHO”) of the District of Columbia Office of the
State Superintendent of Education with respect to D.W., her
minor child, a student who is eligible for special education
and related services. See Complaint (ECF No. 1)
¶ 1.
In her
complaint, Plaintiff claims that the Hearing Officer Decision
(“HOD”) was erroneous as a matter of law, and
that the Hearing Officer erred by placing a condition on the
Plaintiff's right to have a designee observe D.W. by
finding that the Defendant, the District of Columbia Public
Schools (“DCPS”), could require the designee to
certify by signing a nondisclosure agreement that he would
not testify about the observation in a due process hearing
involving D.W. See Complaint ¶¶ 52-61.
Plaintiff requests that the court vacate the May 18, 2018 HOD
and order the Defendant to allow the Plaintiff's designee
to observe D.W. without any restrictions outside those
explicitly listed in the D.C. Code. Id. at ¶
62.
I.BACKGROUND[1]
A.
Factual Background
D.W. is
eligible for services as a student who has been diagnosed
with Angelman's Syndrome, Agenesis of the Corpus
Callosum, asthma, allergies, microencephaly, cerebral palsy
(mild), and global delays across developmental levels.
See Hearing Officer's Determination
(“HOD”) (ECF No. 10-1) at 7. During the 2016-2017
school year, D.W. attended Francis-Stevens Elementary School,
and was in a self-contained classroom with a dedicated aide.
Id. At the end of that school year, DCPS informed
the Plaintiff that it would be placing D.W. in a different
day school without the dedicated aide. Id. The
Plaintiff objected and filed a due process complaint on
August 14, 2017. Id.
The due
process hearing resulted in a determination by IHO Coles Ruff
that DCPS had denied D.W. a free and appropriate public
education (“FAPE”) when it proposed to place D.W.
in a more restrictive educational placement. Id. at
7-8. In an interim order, IHO Ruff denied the Plaintiff's
request for her education expert, Dr. Paul Livelli to observe
the student at Beers Elementary because he believed Dr.
Livelli had a potential financial interest in the litigation.
Id. at 8. As relief, IHO Ruff ordered DCPS to
conduct new evaluations, and to convene a meeting to review
and revise D.W.'s Individualized Education Plan
(“IEP”) to determine a placement for the student.
Id.
Prior
to this meeting, Plaintiff again sought to have Dr. Livelli
observe D.W. at Francis-Stevens Elementary, but on December
5, 2017, DCPS informed the petitioner that it would not allow
the observation because IHO Ruff had denied the
Plaintiff's request for Dr. Livelli to observe the
student in prior litigation. Id. at 9. At the time
of this request, there was no current litigation ongoing
between the parties. Id. On January 22, 2018, DCPS
convened a meeting to review the new evaluations, which Dr.
Livelli attended. Id.[2]
On
February 2, 2018, Plaintiff filed an administrative due
process complaint against DCPS, alleging that DCPS violated
the Student Rights Act by denying the Plaintiff's
designee the chance to observe D.W., and that this denied
D.W. a FAPE. See Due Process Complaint Notice (ECF
No. 10-1) at 28. DCPS moved on February 22, 2018 to dismiss
the complaint, alleging that the action was barred by
collateral estoppel and/or res judicata because the proposed
observation was the same kind of observation that was barred
by IHO Ruff's HOD. See HOD at 3-4. IHO Michael
S. Lazan stated that the issue to be determined was,
“[d]id DCPS deny the Petitioner's expert an
opportunity to observe the Student's classroom in
violation of the Special Education Student Rights Act,
located at D.C. Code Sect. 38-2571.03(5)(A)?” See
Id. at 7.
B.
Summary of the Hearing Officer
Determination
Following
the due process hearing, IHO Lazan found on May 18, 2018 that
the Plaintiff was entitled to have her designee observe D.W.
at D.W.'s school, but before the observation, DCPS could
require the designee to sign a document under oath affirming
that he would “not use the information gathered during
the observation 1) in any subsequent special education
litigation against DCPS; and 2) in an effort to retain
additional clients so that they can engage in special
education litigation against DCPS.” HOD at 13.
In his
discussion of the case, IHO Lazan relied on his
interpretation of two sections of the Student Right's
Act, set out in D.C. Code § 38-2571.03(5)(A) and (E),
which provide that:
Upon request, an LEA shall provide timely access, either
together or separately, to the following for observing a
child's current or proposed special education program:
(i) The parent of a child with a disability; or (ii) a
designee appointed by the parent of a child with a disability
who has professional expertise in the area of special
education being observed or is necessary to facilitate an
observation for a parent with a disability or to provide
language translation assistance to a parent; provided that
the designee is neither representing the parent's child
in litigation related to the provision of free and
appropriate public education for that child nor has a
financial interest in the outcome of such litigation.
D.C. Code § 38-2571.03(5)(A), and that:
An observer shall not disclose nor use any information
obtained during the course of an observation obtained during
the course of an observation for the purpose of seeking or
engaging clients in litigation against the District or the
LEA.
Id. at (E).
IHO
Lazan determined that the reference to “such
litigation” in § 38-2571.03(5)(A) referred to
current litigation, and that because there was no current
litigation, the Plaintiff's designee could conduct an
observation. See HOD at 12. Further, IHO Lazan
determined that the § 38-2571.03(5)(E) placed a
condition on observers who intend to use the information in
future litigation. Id. IHO Lazan then determined
that because Dr. Livelli did not understand what this clause
meant and had indicated in testimony that he may use the
information in future litigation, DCPS could require Dr.
Livelli to sign a document precluding him from using the
information obtained in the observation in any subsequent
litigation against DCPS involving this student or any other
student. Id.
II.
CONTENTIONS OF THE PARTIES
A.
Contentions of the Plaintiff in her Motion for Summary
Judgment
Plaintiff
alleges that the IHO erred in interpreting the Student Rights
Act by preventing the Plaintiff's designee from observing
D.W. in his current placement and testifying about what he
observed in any subsequent due process proceeding involving
D.W. See Memorandum of Points and Authorities in
Support of Plaintiff's Motion for Summary Judgment
(“Pl.'s Motion for Summary Judgment”) (ECF
No. 12) at 1. In her Motion for Summary Judgment, the
Plaintiff claims that the HOD is contrary to the plain
language of the Student Rights Act, and that D.C. Code §
38-2571.03(5)(E) (“An observer shall not disclose nor
use any information obtained during the course of an
observation for the purpose of seeking or engaging clients in
litigation against the District or the LEA”) does not
refer to observers who have already been engaged by a
Plaintiff. See Id. at 12. In support of this
conclusion, the Plaintiff cited the legislative history of
the statute, which she alleges gives no clear indication
anything other than the plain meaning of the statute was
intended. Id. Plaintiff further contends that the
purpose of the statute was to “ensure that
‘parents have the tools they need to stay informed,
engaged, and empowered throughout the special education
process.'” Id. (quoting D.C. Council,
Report on Bill 20-723 at 1 (July 10, 2014)).
The
Plaintiff further contended that the IHO's interpretation
of the Student Rights Act would lead to unjust or absurd
consequences, because while schools would have multiple
experts who could observe the student and offer testimony at
a due process hearing, the parents would only be able to
bring in an expert if the expert had not observed the student
in the program. Id. at 18. As evidence of this
claim, the Plaintiff alleges that the IHO who issued the HOD
in question later revisited his interpretation of the Student
Rights Act in a subsequent case and determined that
“the words ...