Jackson v. Dist. of Columbia

• Decision Date: 28 November 2011
• Docket Number: Nos. 1:09–cv–00839 BJR,1:10–cv–00604 BJR.,s. 1:09–cv–00839 BJR
• Citation: 826 F.Supp.2d 109,279 Ed. Law Rep. 203
• Parties: Leslie JACKSON, Plaintiff v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

279 Ed. Law Rep. 203

826 F.Supp.2d 109

Leslie JACKSON, Plaintiff

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

Nos. 1:09–cv–00839 BJR

1:10–cv–00604 BJR.

United States District Court, District of Columbia.

Nov. 28, 2011.

Leslie T. Jackson, Washington, DC, pro se.

Veronica A. Porter, Office of Attorney General for the District of Columbia, Washington, DC, for Defendants.

BARBARA JACOBS ROTHSTEIN, District Judge.I. INTRODUCTION

This matter comes before the court on two motions to dismiss filed by the defendants in Jackson v. District of Columbia, et al., 1:09–cv–00839 (BJR) (“ Jackson I ”) and Jackson v. Rhee, et al., 1:10–cv–00604 (BJR) ( “ Jackson II ”).¹ Plaintiff Leslie Jackson brings this action on behalf of her minor son pursuant to the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §§ 1400 et seq. (“IDEIA”) ², 42 U.S.C. § 1983 (“ Section 1983”), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), and the Americans with Disabilities Act, 42 U.S.C. § 12132 (the “ADA”). Defendants, the District of Columbia and Michelle Rhee, in her official capacity as Chancellor of the District of Columbia Public Schools (“DCPS”), seek to partially or entirely dismiss the operative complaints in each case pursuant to Federal Rule of Civil Procedure 12(b)(6) and the doctrine of res judicata.³ Upon consideration of the motions and replies, the oppositions thereto, as well as the relevant law, the court finds as follows.

II. BACKGROUND

This matter has a long and laboured history. To date, five administrative complaints have been filed with the Student Hearing Office ⁴, three lawsuits have been filed in federal court, and an untold number of meetings and hearings have been held. At the center of this dispute is a child, AJP, who has moderate to severe physical disabilities and developmental delays. As a result, he qualifies for special education services through DCPS. The parties, despite admonishments from Hearing Officers and at least two district court judges, have been unable to agree on an individual education plan (“IEP”) and placement for AJP. This court is concerned that the parties have become so entrenched in their battle that they long ago forgot what is important here—AJP. With this in mind, the court will now address the motions before it.

A. Statutory Background

1. The IDEIA

The IDEIA aims “to ensure that all children with disabilities have available to them a free appropriate public education (“FAPE”) 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). The D.C. court of appeals has explained the crucial role that the IEP plays in providing the FAPE the statute guarantees:

If a child's initial evaluation suggests he is entitled to a FAPE, IDEA then requires the school district to create and implement an IEP, which is the “primary vehicle” for implementing the Act. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IEP is “[p]repared at meetings between a representative of the local school district, the child's teacher, the parents or guardians, and, whenever appropriate, the disabled child.” Id. It “sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” Id.; see also 34 C.F.R. § 300.343(b)(2) (requiring a “meeting to develop an IEP” within 30 days following the completion of a disabled student's initial evaluation).

Lesesne v. Dist. of Columbia, 447 F.3d 828, 830 (D.C.Cir.2006); see also Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (Congress envisioned the IEP “as the centerpiece of the statute's education delivery system for disabled children”).

The understandable hope on which the statute is based is that the implementation of an IEP will permit the child to improve. Thus, the IDEIA commands that a local educational agency ensure that a re-evaluation of each child is done when either the agency determines that “the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation,” or if the child's parents or teacher requests it. 20 U.S.C. § 1414(a)(2)(A). Such an evaluation must occur at least once every three years, unless the local educational agency and the parent agree it is unnecessary. 20 U.S.C. § 1414(a)(2)(B)(ii); 34 C.F.R. § 300.303. Furthermore, beginning with the first IEP in effect once the child is 16, and updated annually thereafter, the IEP must include the following:

(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills;

(bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and

(cc) beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m).

20 U.S.C. § 1414(d)(1)(A)(i)(VIII); see also 34 C.F.R. § 300.320(b).

2. Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. § 794; see also Robinson v. District of Columbia, 535 F.Supp.2d 38, 41 (D.D.C.2008) ( “Section 504 prohibits programs and entities that receive federal funding from denying benefits to, or otherwise discriminating against, a person ‘solely by reason’ of that individual's handicap.”). In the context of cases involving children who receive benefits pursuant to the IDEIA, courts have consistently recognized that in order to establish a violation of § 504, “ ‘something more than a mere failure to provide the free appropriate education required by [the IDEA] must be shown.’ ” Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1580 (D.C.Cir.1984) (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir.1982)); see also Robinson, 535 F.Supp.2d at 42 (citing cases). “Specifically, plaintiffs must show either bad faith or gross misjudgment on the part of the governmental defendants.” Robinson, 535 F.Supp.2d at 42.

3. The Americans with Disabilities Act

The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To show that the exclusion was “by reason of” his or her disability, an individual must establish that the disability “actually play[ed] a role in the ... decision making process and [had] a determinative influence on the outcome.” Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir.2008) (quoting Soledad v. U.S. Dep't of Treasury, 304 F.3d 500, 503–04 (5th Cir.2002)); see also Cummings v. Woodson Senior High School, 563 F.Supp.2d 256, 260 (D.D.C.2008) (observing that a plaintiff must show she was discriminated against on the basis of her disability); Hinson v. Merritt Educational Center, 521 F.Supp.2d 22, 31 (D.D.C.2007) (same).

B. Factual Background and Procedural History

When AJP was two years old he was diagnosed with Pervasive Developmental Disorder. See Jackson II Compl., Dkt. No. 1 at ¶ 3. As such, he was entitled to receive special education services from DCPS pursuant to 20 U.S.C. § 1401(3)(B). He was enrolled in the District of Columbia Infant and Toddler Child Find Program and received language, occupational, and technical services. Id. In August 2004, when AJP was three years old, DCPS developed an IEP for him. It included speech therapy, occupational therapy, assistive technology, sign language instruction, behavioral management services, and a full time, one-to-one dedicated aide. See Jackson I Complaint, Dkt. No. 1 at ¶ 27. The IEP was signed by Ms. Jackson, and AJP was placed in Stoddert Elementary School. See Jackson II Complaint, Dkt. No. 1 at ¶ 4.⁵

In March 2005, DCPS notified Ms. Jackson that it would be changing AJP's placement because Stoddert Elementary School no longer offered the services that AJP needed per his IEP. See Plaintiff's Opposition to Dismiss in Jackson I (“ Jackson I Opp.”), Dkt. No. 11 at 2. Thereafter, on August 10, 2005, DCPS issued a new IEP, placing AJP in the citywide autism program at Barnard Elementary School. Jackson I Comp., Dkt. No. 1 at ¶ 30. The IEP also changed AJP's classification from “developmentally delayed” to “autistic.” Id.

Ms. Jackson did not agree with the new classification and placement. Id. at 32. On September 13, 2005, she filed an administrative due process complaint with the Student Hearing Office asserting AJP's “stay put” rights. ⁶ Ms. Jackson alleges that DCPS denied her request. Jackson II Comp. at ¶ 8. One week later, on September 22, she filed suit in the United States District Court for the District of Columbia, Laster v. District of Columbia, 1:05–cv–01875 (Urbina), and moved for a temporary restraining order. Judge Urbina granted her request for a “stay put” injunction on September 28, 2005. Jackson II Compl., Dkt. No. 1 at ¶ 10. Thereafter, Judge Urbina issued an order requiring that “DCPS fund all related services and supplemental aids on [AJP's 2004 IEP] ... until [the] administrative due process complaint [before the Student Hearing Office] is decided and any appeal therefrom...