Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

D.W. v. District of Columbia

United States District Court, District of Columbia

July 30, 2019

D.W., et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

          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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.