Fitzgerald v. Fairfax County School Bd.

• Decision Date: 23 May 2008
• Docket Number: Civil Action No. 1:07cv1117.
• Citation: 556 F.Supp.2d 543
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Kevin FITZGERALD, et al., Plaintiffs, v. FAIRFAX COUNTY SCHOOL BOARD, Defendant.

556 F.Supp.2d 543

Kevin FITZGERALD, et al., Plaintiffs, v. FAIRFAX COUNTY SCHOOL BOARD, Defendant.

Civil Action No. 1:07cv1117.

United States District Court, E.D. Virginia, Alexandria Division.

May 23, 2008.

COPYRIGHT MATERIAL OMITTED

Jonathan Gerald Martinis, Virginia Office for Protection and Advocacy, Richmond, VA, for Plaintiffs.

Andrea Dawn Gemignani, Blankingship & Keith PC, Fairfax, VA, for Defendant.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

In this IDEA¹ dispute, plaintiff Kevin Fitzgerald (a minor child) and his parents challenge the procedures and finding of the manifestation determination review ("MDR") held by Fairfax County School Board ("FCSB")² that allowed Kevin to be suspended from his school for his involvement in a paintball shooting incident at the school. Specifically, plaintiffs contend that FCSB violated the IDEA's procedural provisions in conducting the MDR hearing; they also claim that Kevin's conduct was caused by, or had a direct relationship to, Kevin's disability and hence his suspension from school was an impermissible punishment under the IDEA. The parties filed cross-motions for judgment on the administrative record and for the following reasons, defendant's motion must be granted and plaintiffs' motion must be denied.

I.

In the eighth grade, Kevin, now a senior at Annandale High School, began exhibiting elevated anxiety symptoms, including crying, panic attacks, sweating, tics, and chronic headaches. Because these symptoms interfered with his school attendance and performance, Kevin underwent an evaluation, as a result of which he was categorized as a student with an emotional disability eligible to receive special education services under the IDEA.³ Pursuant to the IDEA, Kevin's school, in cooperation with his parents, developed an Individualized Education Plan ("IEP") for Kevin, designed to ensure that he received the free appropriate public education ("FAPE") mandated by the IDEA.⁴ Also pursuant to the IDEA, Kevin's school, again in cooperation with his parents, revised the IEP annually to accommodate Kevin's changing educational needs.

After successfully completing the eighth grade, Kevin began attending Falls Church High School ("FCHS"), where, pursuant to his IEP, he continued receiving special education services. His tenth grade IEP, prepared in April 2005, noted that Kevin had "been drawn into inappropriate behaviors in some of his classes and has been known to be negative and sarcastic toward teachers." As a result, included among the 2005 IEP's objectives for Kevin were to "refrain from conversation with peers that is not on topic of class lesson" and to "distance himself from peers who are behaving inappropriately in class." His eleventh grade IEP, which issued in March 2006 and was in effect at the time of the paintball shooting incident, expressed similar concerns and included a similar objective. The 2006 IEP also provided that Kevin receive one half hour of educational services per school week in addition to his otherwise normal classroom schedule. At Kevin's request, his meeting times with his special education case manager, Pamela Wallace, were scheduled so that he would not be called out of class or otherwise singled out in front of his peers as a student receiving special education services. The services appeared to be working for Kevin, as teachers noted an improvement in his leadership qualities and maturity level.

During his eleventh grade year, Kevin engaged in the conduct that is central to this dispute. On December 16, 2006, Kevin and some friends met at a restaurant. At Kevin's suggestion, the boys decided to drive by FCHS and shoot at the school building with paintball guns.⁵ Kevin had a paintball gun in his car and offered to drive the four other boys to the school. On the way to the school, Kevin made a detour to another boy's vehicle to retrieve two more paintball guns. The five boys then proceeded to FCHS in Kevin's car where they shot paintballs at the windows of the school building and at various vehicles parked on school property, including school buses. At some point during this first visit to the school, one of the paintball guns malfunctioned, so Kevin drove the boys to retrieve supplies, including C0₂ and more paintballs, from a vehicle belonging to one of the boys. Kevin and the boys then made a second trip to the school and this time Kevin, who was driving, shot at the school while one of the boys held the wheel of Kevin's car. After this second trip, two of the boys decided to leave and asked Kevin to drive them to another location. Kevin did so, and then he and the remaining two boys returned to FCHS to shoot paintballs at the school a third time. As a result of the three attacks on the school, thirty school windows, two school buses, and one school delivery truck had been hit with paintballs. On their way home from the school, Kevin, still driving, failed to obey a stop sign and was stopped by a police officer. The officer noticed the paintball guns and questioned the boys, who denied any wrongdoing. The officer then allowed Kevin and the boys to proceed on their way. Later, when the officer heard reports of paintball vandalism at FCHS, he advised the administration and school police officer, Officer George Davis, that he believed Kevin and his friends had been involved. Officer Davis then questioned Kevin, who, after Officer Davis assured him that the school was not planning to pursue criminal charges against the boys, admitted his involvement in the affair.

Virginia law requires the school board to "expel from school attendance for a period of not less than one year any student whom such school board has determined ... to have possessed ... a pneumatic gun as defined in [Va Code § 15.2-915.4(E)] on school property." Va.Code § 22.1-277.07(A). Because a paintball gun is statutorily defined as a type of pneumatic gun,⁶ the school principal suspended Kevin with a recommendation of expulsion. This recommendation triggered the provisions of the IDEA, which prohibits disciplining a disabled student for more than ten days if the "conduct in question was caused by, or had a direct and substantial relationship to, the child's disability." 20 U.S.C. § 1415(k)(1)(E)(i)(II). Accordingly school officials scheduled an MDR hearing for January 5, 2007, to determine whether Kevin's conduct in the paintball gun affair was a manifestation of his emotional disability. In accordance with FCSB policies, which required the attendance of certain categories of school personnel at an MDR hearing, the school designated the following people to participate in the MDR hearing: (i) Karen Allison, the special education department chair, (ii) Daniel Eberling, the assistant principal who handled the investigation of the paintball gun incident, (iii) Pamela Wallace, Kevin's special education teacher, (iv) Emily Trudeau, Kevin's eleventh-grade History teacher, and (v) Sonja Hamilton, a school psychologist.

Ms. Allison, on behalf of the school and FCSB, sent Kevin's parents the district's "Parent Notification of Manifestation Determination Review Meeting" form, advising Kevin and his parents of the date of Kevin's MDR hearing and listing the categories of school personnel who would be attending, without naming specific individuals. The form also explained that "[additional individuals may attend at the request of the parent or FCPS [Fairfax County Public Schools]." Included with the Parent Notification was the Virginia Department of Education's "Virginia Procedural Safeguards Notice." The notice advised plaintiffs that Kevin could not be disciplined for more than ten days unless "the school division, the parent, and relevant members of the IEP Team (as determined by the parent and the school division)" determined that Kevin's conduct was not a manifestation of his disability. Ms. Allison did not speak with Kevin or his parents concerning the MDR procedures, believing the materials she had sent adequately described their procedural rights. Similarly, Kevin's parents did not contact Ms. Allison or anyone else at FCHS for clarification or additional information on the procedures, nor did they bring any-one—or seek to bring anyone—to the MDR hearing.

The MDR hearing was held on January 5, 2007, and was attended by the five FCSB members, Kevin, and his parents. The parties dispute the length of the MDR hearing; at a later due process hearing, Kevin's father stated that the MDR hearing lasted only 10 minutes, whereas the FCSB members stated that it lasted 30 to 45 minutes. The FCSB members' recollection is more plausible, as the MDR hearing included a careful review of Kevin's record. As the FCSB members later testified at the due process hearing, the MDR hearing included a presentation by Ms. Hamilton of the history of Kevin's disability, his qualification for special education services under the IDEA, and his educational and cognitive test results. Due Process Transcript at 478-85. The record also reflects that the MDR committee members reviewed evidence regarding Kevin's disciplinary history and inspected reports from Kevin's teachers describing his behavior in class. Id. at 480-81, 484. Finally, the team discussed Kevin's involvement in the paintball incident. Id. at 352.

Although Kevin and his parents contended at the MDR hearing that Kevin's conduct in the paintball gun incident was a manifestation of his disability, they did not argue that Kevin had somehow been induced or inveigled by his classmates to participate in the paintball shooting incident. At the conclusion of the MDR hearing, the FCSB members determined, contrary to plaintiffs' view, that Kevin's behavior was not a manifestation of his disability. This MDR finding that Kevin's behavior was not a manifestation of his emotional disability allowed the school to discipline Kevin as it would any other student. 20 U.S.C. § 1415(k)(1)(C). Accordingly, the school principal's...