DL v. Dist. of Columbia

• Decision Date: 25 April 2012
• Docket Number: Civil Action No. 05–1437 (RCL).
• Citation: 80 Fed.R.Serv.3d 1294,845 F.Supp.2d 1,282 Ed. Law Rep. 308
• Parties: DL, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

845 F.Supp.2d 1

80 Fed.R.Serv.3d 1294

282 Ed. Law Rep. 308

DL, et al., Plaintiffs,

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

Civil Action No. 05–1437 (RCL).

United States District Court, District of Columbia.

Nov. 16, 2011.

Order On Reconsideration In Part April 25, 2012.

Bruce J. Terris, Terris, Pravlik & Millian, LLP, Jeffrey S. Gutman, The George Washington University Law School, Margaret A. Kohn, Washington, DC, for Plaintiffs.

HW, pro se.

Timothy Lantry pro se.

Arlette Mankemi, pro se.

Kerianne Piester, pro se.

TL, pro se.

Ronald Wisor, pro se.

XY, pro se.

Bryan Young, pro se.

Tammika Young, pro se.

Chad Wayne Copeland, Daniel Albert Rezneck, Samuel C. Kaplan, Office of the Attorney General, Robert C. Utiger, DC Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROYCE C. LAMBERTH, Chief Judge.

I. INTRODUCTION

This case concerns the District of Columbia's obligations, under both federal and local law, to provide special education to some of our most vulnerable citizens at a very early and critical stage in their lives. In the first few years of a child's life, there exists a narrow window of opportunity in which special education, tailored to the child's particular needs, can work a miracle. “[S]omewhere in the neighborhood of 75 to 80 percent” of the disabled children who are found in the community and served by quality early intervention programs will go on to kindergarten alongside every other ordinary five-year-old—without needing further supplemental special education. Trial Transcript, Dunst Testimony, 115:4–116:15, Apr. 6, 2011. So that's what's at stake here.

The named plaintiffs in this lawsuit—former preschool-age children in the District with various disabilities—filed suit in July 2005, alleging that defendants had engaged in a pattern and practice of failing to provide special education and related services to them and other children, in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), implementing regulations, the Due Process Clause of the Fifth Amendment, and District of Columbia law. Am. Compl. [61] ¶ 1–2. Plaintiffs sought declaratory and injunctive relief, reimbursement for funds expended by them to obtain education services denied them by defendants' legal violations, and “compensatory education.” Id. at 33–35.

In August 2006, the Court certified a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Order [58] 1, Aug. 25, 2006, 237 F.R.D. 319 (D.D.C.2006). The plaintiff class is defined 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.

Id.

Toward the end of discovery, the parties filed cross-motions for summary judgment. In August 2010, the Court ruled upon those motions and concluded, among other things, that defendants “denied a [free appropriate public education (“FAPE”) ] to a large number of children aged 3 to 5 years old, in violation of § 1412(a)(1)(A) of the IDEA.” DL v. District of Columbia, 730 F.Supp.2d 84, 95 (D.D.C.2010). However, this ruling applied only for the period 2007 and earlier, which were the only years for which data was available. Id.

The Court scheduled a bench trial for April 2011 solely on the issue of defendants' liability for the period 2008 to the trial date, while also ordering the parties, within 30 days after issuance of the Court's decision on the merits presented at trial, to propose a procedure for addressing class members' claims for individual relief. Order [201] 2, Sept. 22, 2010.

The parties appeared before this Court for a bench trial on April 6–7, 2011. The parties presented several witnesses and a number of exhibits. At the Court's direction, each party submitted Proposed Findings of Fact & Conclusions of Law [254, 256] on June 3, 2011.

Based on all of the evidence presented, the Court makes the following findings of fact and conclusions of law and will, consistent with them, enter judgment in favor of plaintiffs and against defendants.

II. FINDINGS OF FACTA. Credibility of Plaintiffs' Experts

1. Plaintiffs retained Dr. Carl J. Dunst as an expert to study and provide statistical analysis of the District of Columbia's Child Find-related obligations as they relate to preschool children, ages three through five. Direct Testimony of Dr. Carl J. Dunst [209–1] 3, Mar. 16, 2011.

2. Dr. Dunst holds a Bachelor's degree in Education from Temple University, a Master's degree in Early Childhood SpecialEducation from the George Washington University, and a Doctorate in Developmental Psychology from the George Peabody College at Vanderbilt University. Id. at 1.

3. Dr. Dunst has worked as an early intervention practitioner, has directed an IDEA Part C early intervention and an IDEA Part B preschool special education program, and has taught numerous courses on infant and preschool development, assessment, and intervention practices. Id.

4. Dr. Dunst was the Principal Investigator of a seven-year study funded by the U.S. Department of Education, Office of Special Education Programs (“OSEP”) called the Tracking, Referral and Assessment Center for Excellence (“TRACE”). Id. at 2. TRACE investigated Child Find-related practices in IDEA Part C early intervention and IDEA Part B preschool special education programs in all 50 states, the District of Columbia, and other jurisdictions, and researched and developed evidence-based practices for improving Child Find-related activities. Id. He has also been the Principal Investigator or Co–Principal Investigator at two other OSEP-funded research and training centers that focus on early childhood intervention practices. Id.

5. Dr. Dunst is currently a Research Scientist and Co–Director at the Orelena Hawks Puckett Institute in Asheville, North Carolina, which conducts research, evaluation, and intervention development and training in Part C, Part B, Early Head Start, Head Start, Even Start, childcare and preschool practices. Id.

6. Due to his extensive experience, Dr. Dunst is a recognized expert in infant and early childhood assessment practices, family systems intervention practices, infant and early childhood intervention practices, family-centered help-giving practices, and Child Find, referral, and outreach practices. Id. at 3.

7. Dr. Dunst has received a number of awards from a variety of professional organizations for his research and practice. Id. He has an extensive list of publications in prominent journals, reports, and books about Child Find-related policies and practices. See Carl J. Dunst, Recent Publications (2001–2011), Pls.' Ex. 211 at 1–5.

8. Based on Findings Nos. 1–7, this Court finds that Dr. Dunst is a qualified expert in analyzing the District of Columbia's Child Find-related obligations, as they relate to preschool children, ages three through five.

9. This Court finds that Dr. Dunst testified credibly, demonstrated specific knowledge of the relevant literature, and explained clearly how his conclusions were based on both his research and personal experience in the field.

10. Plaintiffs retained Dr. Leonard A. Cupingood as an expert to study and provide statistical analysis of the timeliness of defendants in determining the eligibility for special education and related services of children ages three through five with suspected disabilities. Direct Testimony of Dr. Leonard A. Cupingood [209–2] 2, Mar. 16, 2011.

11. Dr. Cupingood holds a Bachelor's degree in Mathematics from Rutgers University and a Master's and a Doctorate in Statistics from Temple University. Id. at 1.

12. He has extensive experience in conducting statistical analysis in a variety of litigation matters, including employment discrimination cases and audits of insurance companies regarding claims processing. Id. at 1–2. Dr. Cupingood has provided deposition and trial testimony both as a database expert and as a statistician. Id. at 1.

13. Dr. Cupingood is a member of the American Statistical Association and has published several statistics-based articles in reputable journals. Id. at 2; see also Leonard A. Cupingood, Updated CV, Pls.' Ex. 213 at 2–3.

14. Based on findings Nos. 10–13, this Court finds that Dr. Cupingood is a qualified expert in statistics and that he provided credible and compelling testimony during trial regarding defendants' Child Find-related obligations, including the timeliness of defendants in determining the eligibility for special education and related services of children ages three through five with suspected disabilities.

15. This Court also finds that Dr. Cupingood provided credible testimony regarding the number of preschool-age children who were referred each year for special education services.

16. This Court also finds that although there was an error in labeling Table 2 of Dr. Cupingood's Direct Testimony, Cupingood Direct Testimony [209–2] 10, this error was minor and had no effect on Dr. Cupingood's calculations regarding the timeliness of eligibility determinations summarized in Tables 1–6.

17. Ruth Anderson Wilcox testified concerning her three-year-old son, DW, who experienced delays in evaluation and provision of special education services from the District of Columbia, during the 2010–11 school year. Direct Testimony of Ruth Anderson Wilcox [209–3] 8, Mar. 16, 2011. Ms. Wilcox stated that in September 2010, within three weeks after her son began his first day of school at Randle Highlands Elementary School, she asked...