J.D.G. v. Colonial Sch. Dist.

• Decision Date: 02 November 2010
• Docket Number: Civ. No. 09–502–SLR.
• Citation: 748 F.Supp.2d 362
• Parties: J.D.G. and Tiby S. Gomez, Plaintiffs,v.COLONIAL SCHOOL DISTRICT and Delaware Department of Education, Defendants.
• Court: U.S. District Court — District of Delaware

748 F.Supp.2d 362

J.D.G. and Tiby S. Gomez, Plaintiffs,

v.COLONIAL SCHOOL DISTRICT and Delaware Department of Education, Defendants.

Civ. No. 09–502–SLR.

United States District Court, D. Delaware.

Nov. 2, 2010.

J.D.G. and Tiby S. Gomez, New Castle, DE, Pro Se Plaintiffs.James H. McMackin, III, Esquire, Morris James LLP, Wilmington, DE, for Defendant Colonial School District.Catherine T. Hickey, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, for Defendant Delaware Department of Education.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.I. INTRODUCTION

Plaintiffs J.D.G. (“J.G.”) and Tiby S. Gomez (“Gomez”) (together “plaintiffs”), who proceed pro se, filed this complaint pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. and 14 Del. C. § 3120, against defendants Colonial School District, New Castle, Delaware (“the District”), and the Delaware Department of Education (“DDOE”).¹ (D.I. 2, 17) Presently before the court are motions to dismiss, for summary judgment, to stay, and to properly title. (D.I. 21, 33, 50, 51, 54, 56) For the reasons set forth below, the court will grant the motion to dismiss; deny as moot plaintiffs' motion for summary judgment against the DDOE, the DDOE's motion to stay, and the District's motion to properly title; grant the District's motion for summary judgment; and deny plaintiffs' motion for summary judgment against the District.

II. BACKGROUND

J.G. is a minor, disabled student with Down syndrome.² Under the IDEA, he is eligible for special education and related services. Gomez is J.G.'s mother. During the relevant time period, J.G. was a student at the Gunning Bedford Middle School, a school within the Colonial School District. ³ Plaintiffs allege that they were discriminated against at the onset of J.G.'s education and, again, on April 13, 2009, and that they were not afforded due process rights and/or rights under the IDEA, as follows: ⁴ (1) in May 2005, J.G. was improperly reclassified from educable mentally disabled (“EMD”) to trainable mentally disabled (“TMD”); ⁵ (2) on June 10, 2007, the Gunning Bedford Middle School Individualized Education Plan (“IEP”) Team (“IEP Team”) and Gomez met and agreed upon an IEP for the 2007/2008 school year, but the District failed to implement the plan; (3) in June 2008, the IEP Team proposed an IEP for the 2008/2009 school year without adequately completing the IEP for the 2007/2008 school year; and (4) Gomez opposed the IEP for the 2008/2009 school year and maintains that the IEP denies J.G. the right to a free appropriate public education (“FAPE”). (D.I. 2, ¶¶ 6, 9, 10–14)

On June 18, 2008, plaintiffs filed a due process complaint against the District with the DDOE and requested completion of the IEP for the 2007/2008 year, establishment of a 2008/2009 IEP, reevaluation of J.G.'s mentally disabled status, a temporary interim placement, and private tutoring. Upon the filing of the due process complaint, the “stay put” provisions of the IDEA required that the 2007/2008 IEP continue in effect.⁶ 20 U.S.C. § 1415(j). The DDOE appointed a hearing panel (“hearing panel”) to adjudicate the complaint.⁷ Hearings were held on October 14, November 18, and December 3, 2008, and January 29, 2009.⁸

The hearing panel decided the following procedural and substantive issues:

1. Was J.G. denied a timely resolution meeting?

2. Was J.G. denied a pretrial conference?

3. Was J.G. denied the right to present relevant witnesses?

4. Was J.G. entitled to have the District pay for a psycho-education evaluation by an evaluator of his choice?

5. Was J.G.'s speech and occupational therapist's evaluation improperly excluded from the evidence?

6. Did J.G. request consecutive hearing dates and, if so, was the request improperly denied?

7. Was the motion to recuse the second appointee as panel chair improperly denied?

8. Was the requirement of written closing arguments violative of J.G.'s due process rights?

9. Did the District comply with discovery requirements?

10. Were the 2005/2006, 2006/2007, and 2007/2008 IEPs implemented?

11. Was the draft 2008/2009 IEP reasonably calculated to confer meaningful education benefit to J.G.?

Issues one through nine concern procedural matters, while issues ten and eleven concern substantive matters. The hearing panel made findings of fact and cited case law in support of its decision. It issued its decision on April 13, 2009, and found no violations of plaintiffs' procedural rights. As to the substantive issues, it found that the District proved by competent evidence that the 2007/2008 IEP was implemented and that the proposed 2008/2009 IEP was appropriate.

Plaintiffs were advised of their right to appeal either in the Family Court of the State of Delaware or this court. Plaintiffs timely appealed the hearing panel's decision to this court. ( Id. at ¶ 6, 7, 15, 17, 18, ex.) They allege that, during the course of the hearing, the hearing panel denied and violated J.G.'s due process rights under the Fifth and Fourteenth Amendments and his rights as enumerated under 34 C.F.R. § 300. (D.I. 2)

The amended complaint alleges that the DDOE violated J.G.'s constitutional rights as a result of discriminatory practices by the hearing panel and its chair, its members having been appointed by the DDOE. Plaintiffs allege that the DDOE allowed the following discriminatory practices and negligence by the chair, who was not well-informed, when the hearing panel: (1) did not allow the examination of relevant witnesses by motion or subpoena; (2) did not allow plaintiffs to submit relevant evidence such as an independent speech therapist evaluation and occupational therapist report; (3) did not allow a public hearing or videotaping of the hearing; (4) did not allow an independent educational evaluation and reevaluation; (5) allowed into evidence the District's unsigned psycho-educational evaluation; (6) did not provide for an interim placement for the safety of J.G.; and (7) intentionally delayed the proceeding which took nearly one year to litigate. In addition, plaintiffs allege that the DDOE failed to conduct an investigation and is negligent for allowing the District to continue to fall below the minimum required standards in English, math, and reading. Plaintiffs request payment for an interim placement, related transportation, an educational reevaluation, and other related special academic services during the pendency of this litigation. They also request payment for private school placement with special academic services for the next six years. (D.I. 17)

III. IDEA

J.G. is entitled to a FAPE based upon his unique educational needs pursuant to 20 U.S.C. § 1401(9) and 34 C.F.R. § 300.17. The IDEA contemplates that school districts will achieve these goals by designing and administering a program of individualized instruction for each special education student set forth in an IEP. 20 U.S.C. §§ 1412(a)(4), 1414(d); see also Board of Educ. v. Rowley, 458 U.S. 176, 181–82, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The IDEA does not set forth definite guidelines for the formulation of an IEP but, at a minimum, an IEP “must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential,” Rowley, 458 U.S. at 189, 102 S.Ct. 3034.

Courts have characterized the IEP as the “centerpiece” of the IDEA'S system for delivering education to disabled children. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir.1988) (quoting Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). “An IEP consists of a specific statement of a student's present abilities, goals for improvement of the student's abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services.” Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir.2000) (citation omitted). A team consisting of the student's parents and teachers, a curriculum specialist from the local school district and, if requested, a person with special knowledge or expertise regarding the student, must develop an IEP. 20 U.S.C. § 1414(d)(1)(B). The IEP team will review the IEP at least annually to determine whether the stated goals for the student are being achieved. Id. at § 1414(d)(4). When appropriate, the team will revise the IEP to address, among other things, lack of progress, necessary changes arising from reevaluation of the child, and parental input. Id.

The IDEA provides that any party may present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child[.]” 20 U.S.C. § 1415(b)(6). The filing of a complaint gives rise to a resolution process, followed by a due process hearing, which is conducted in compliance with state procedures. Id. at § 1415(f)(1); 14 Del. Admin. C. § 926, et seq. Under Delaware law, once a request for a hearing is initiated, the DDOE Secretary appoints a three member hearing panel. 14 Del. C. §§ 3135, 3137; 14 Del. Admin. C. § 926.11.2. Following the hearing, the hearing panel issues its decision. Any party aggrieved by the findings and decision has the right to file a civil action in the Family Court of the State of Delaware or in the United States District Court. 20 U.S.C. § 1415(g)(1); 14 Del. C. § 3142; 14 Del. Admin. C. § 926.16.1.

IV. MOTION TO DISMISS

The DDOE moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), raising specific grounds for dismissal, as follows: (1) it is not a proper party to this action; (2) it is immune from suit as to certain claims raised; (3) the hearing panel is not an agency of the DDOE; (4) the hearing panel and its chair have judicial immunity; (5) plaintiffs failed to exhaust their administrative remedies; (6) the court lacks subject matter jurisdiction on the claims raised in the amended...