N.G. v. District of Columbia

Decision Date31 March 2008
Docket NumberCiv. No. 06-0312(EGS).
Citation556 F.Supp.2d 11
CourtU.S. District Court — District of Columbia
PartiesN.G., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al.<SMALL><SUP>1</SUP></SMALL>, Defendants.

Diana Marjorie Savit, Savit & Szymkowicz, LLP, Bethesda, MD, for Plaintiffs.

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


EMMET G. SULLIVAN, District Judge.

N.G. and her parents Manuel Gomez and Sylvia Correa bring this action against the District of Columbia seeking reversal of a Hearing Officer's decision that the District did not violate the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA")2 or the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. Specifically, Plaintiffs allege that the Hearing Officer's determination which found that the District of Columbia Public Schools ("DCPS") had fulfilled its duties to N.G. in 2003 and separately affirmed DCPS's 2005 finding of ineligibility for special education is not supported by the evidence of record or the applicable law. See Pl.'s Mot. 2. Plaintiffs contend that the District violated the "Child Find" provision of the IDEA first in 2003 by failing to recognize N.G.'s "potentially disabling conditions, and again in 2005, when it failed either to gather relevant information or to properly interpret the information it had." Id. Accordingly, Plaintiffs contend that the District's failings required them to find and fund an appropriate placement for N.G. outside of DCPS. As is their right under the IDEA, Plaintiffs now seek reimbursement for the cost of three years of private school education for N.G. The District counters that the Hearing Officer's decision was proper and should be upheld. Both parties have moved for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the complete administrative record in this case, the Court GRANTS Plaintiffs' motion and DENIES Defendants' cross motion.

I. Legal Framework
A. The Individuals with Disabilities Education Act (IDEA)

The IDEA was enacted to assure that children with educational disabilities obtain a free appropriate public education ("FAPE") designed to meet their unique needs. See 20 U.S.C. § 1400, et seq.; see Reid v. District of Columbia, 401 F.3d 516, 524 (D.C.Cir.2005). The Act requires participating states to educate a wide spectrum of disabled children, "from the marginally hearing impaired to the profoundly retarded and palsied." Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist, Westchester County v. Rowley, 458 U.S. 176, 202, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other, with infinite variations in between. Id.

To meet this goal, all public education agencies are required to have in effect policies and' procedures to ensure that:

All children with disabilities residing in the State, including children who are homeless or wards of the state and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated and a practical method is developed and implemented to determine which children are currently receiving needed special education and related services.

20 U.S.C. 1412(a)(3)(A). This mandate is known as the "Child Find" obligation, an affirmative obligation of every public school system to identify students who might be disabled and evaluate those students to determine whether they are indeed eligible. As soon as a child is identified as a potential candidate for services, DCPS has the duty to locate that child and complete the evaluation process. Failure to locate and evaluate a potentially disabled child constitutes a denial of FAPE. See Hawkins ex rel. D.C. v. District of Columbia, 539 F.Supp.2d 108, 113-14 (D.D.C.2008)(finding that DCPS's duty to locate potentially disabled students extends to migrants, homeless students, unenrolled students, and those not yet of school age); see also District of Columbia v. Abramson, 493 F.Supp.2d 80, 85 (D.D.C.2007)(finding Child Find violation and denial of FAPE where DCPS failed to evaluate student attending a residential therapeutic private school in Connecticut when student maintained his D.C. residency).

Once potentially disabled students are identified and located, the local educational agency must conduct an evaluation to determine whether the child is a child with a disability. 20 U.S.C. § 1414(b)(2)(A)(i). In conducting the evaluation, the local educational agency "shall use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining" whether the child is disabled under the Act. Id. Once the child is determined to be eligible, a team including the child's parents and select teachers, as well as a representative of the local educational agency with knowledge about the school's resources and curriculum, develops an "individualized education program" or "IEP" for the child. Reid, 401 F.3d at 519. "The IEP must, at a minimum, provide personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Id. (quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist, Westchester County v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). While the grading and advancement system constitutes an important factor in determining educational benefit, not every handicapped child who is advancing from grade to grade in a regular public school is automatically receiving a FAPE. Rowley, 458 U.S. at 202, 102 S.Ct. 3034.

Parents of disabled children have the right to participate in the identification, evaluation, and placement process. Scorah v. District of Columbia, 322 F.Supp.2d 12, 14 (D.D.C.2004) (citing 20 U.S.C. §§ 1414(f), 1415(b)(1)). "Parents who object to their child's identification, evaluation or educational placement are entitled to an impartial due process hearing at which they have a right to be accompanied and advised by counsel." Id. (internal citations omitted). "DCPS shall bear the burden of proof, based solely on the evidence and testimony presented at the hearing, that the action or proposed placement is adequate to meet the educational needs of the student." Id. (quoting 5 D.C. Mun. Regs. § 3022.16).3 Parents aggrieved by a hearing officer's finding and decisions may bring a civil action in either state or federal court without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2). The Supreme Court has held that Section 1415(e) "confers broad discretion on the court to order relief appropriate in light of the purposes of the Act." See Minor Roca, et al, v. District of Columbia, 2005 WL 681462,*3 (D.D.C. March 14, 2005)(ordering reimbursement for private school placement when DCPS failed to properly evaluate student and formulate appropriate IEP). This includes the power "to order school authorities to reimburse parents for their expenditures on private special education for the child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.'" Florence County Sch. Dist. Four v. Carter by and Through Carter, 510 U.S. 7, 11, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (quoting School Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)).

B. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. Rule 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Too v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). In considering whether there is a triable issue of fact, the court must draw all reasonable inferences in favor of the non-moving party. Id.

In reviewing cases under the IDEA, courts will receive the records of the administrative proceedings, hear additional evidence at the request of a party, and make a decision based on the preponderance of the evidence. See 20 U.S.C. § 1415(i)(2)(C). The role of the reviewing court under the IDEA is two-fold. Scorah, 322 F.Supp.2d at 18 (citing Rowley, 458 U.S. at 206, 102 S.Ct. 3034). First, it must determine whether DCPS has complied with the procedural requirements of the IDEA. Second, it must determine whether the individualized educational program developed through the Act's procedures is reasonably calculated to enable the child to receive educational benefits. Id.

Judicial review under IDEA is more rigorous than in typical agency cases.4 Reid, 401 F.3d at 521. However, "a party challenging the administrative determination must at least take on the burden of persuading the court that the hearing officer was wrong, and the court upsetting the officer's decision must at least explain its basis for doing so." Id. (citing Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C.Cir.1989) ("Kerkam I")). Although the Court must give "due weight" to the administrative proceedings, id., a hearing officer's decision "without reasoned and specific findings deserves little deference." See Kerkam v. Superintendent, D.C. Pub. Schs....

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