DL v. Dist. of Columbia

• Decision Date: 10 June 2015
• Docket Number: Civil Case No. 05–1437
• Citation: 109 F.Supp.3d 12
• Parties: DL, et al., Plaintiffs, v. District of Columbia, et al., Defendants.
• Court: U.S. District Court — District of Columbia

109 F.Supp.3d 12

DL, et al., Plaintiffs,

v.District of Columbia, et al., Defendants.

Civil Case No. 05–1437

United States District Court, District of Columbia.

Signed June 10, 2015

HW, pro se.

TL, pro se.

XY, pro se.

Timothy Lantry, pro se.

Arlette Mankemi, pro se.

Kerianne Piester, pro se.

Bryan Young, pro se.

Tammika Young, pro se.

Bruce J. Terris, Todd A. Gluckman, Terris, Pravlik & Millian, LLP, Cyrus Mehri, Mehri & Skalet, PLLC, Jane M. Liu, Drinker Biddle & Reath, LLP, Jeffrey S. Gutman, George Washington University Law School, Margaret A. Kohn, Law Office of Margaret Kohn, Washington, DC, for Plaintiffs.

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

MEMORANDUM OPINION

Honorable Royce C. Lamberth, U.S. District Court 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...