Sch. Bd. of The City of Norfolk v. Brown
| Citation | 769 F.Supp.2d 928,268 Ed. Law Rep. 197 |
| Decision Date | 13 December 2010 |
| Docket Number | Civil Action No. 2:10cv41. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | SCHOOL BOARD OF THE CITY OF NORFOLK, Plaintiff,v.Daphne BROWN, as Parent and Next Friend of RP, Defendant. |
OPINION TEXT STARTS HERE
Derek Anthony Mungo, Office of the City Attorney, Norfolk, VA, for Plaintiff.Raymond Andrew Hartz, Legal Aid Society of Eastern Virginia, Norfolk, VA, for Defendant.
Before the Court are the Parties' cross Motions for Summary Judgment. Having carefully reviewed the Parties' pleadings and considered the oral arguments, the Court finds that this matter is ripe for judicial determination. For the reasons stated herein, Plaintiff School Board of the City of Norfolk's Motion for Summary Judgment is DENIED in part and GRANTED in part; Defendant Brown's Motion for Summary Judgment is GRANTED in part and DENIED in part; and the final decision of the due process hearing officer is AFFIRMED in part and REVERSED in part.
I. FACTUAL AND PROCEDURAL HISTORY
II. LEGAL STANDARD
III. DISCUSSION
a. The Individuals with Disabilities Education Act
b. Count II: Procedural Violation of Child Find
c. Count III: Substantive Violation of Child Find
a. Counts IV and V: MDR Procedural Violations
b. Count VI: MDR Substantive Violation
a. Count XI: Change in Placement Procedural Violation
b. Count I: Change in Placement Substantive Violation
IV. CONCLUSION
I. FACTUAL AND PROCEDURAL HISTORY
On January 20, 2010, Plaintiff, School Board of the City of Norfolk (“School Board”), filed a Complaint against Defendant, Daphne Brown (“Brown”), as the parent and next friend of minor RP, pursuant to certain provisions of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2), seeking to appeal the administrative findings of the special education due process hearing officer.
RP (“Student”) is an eleven year old student who was enrolled in Campostella Elementary School, which is operated by the School Board, from September 2004 to February 2009. Compl. ¶ 6–a. Student resides with his aunt and legal guardian, Daphne Brown. Compl. ¶ 5. Student suffers from several impairments which qualify him as a “child with disability,” pursuant to 20 U.S.C. § 1401(3)(A), including right side hemiplegia (cerebral palsy) and seizure disorder. Compl. ¶¶ 6–k, 6–1. As a result of his disabilities, Student qualifies for special education and related services under the IDEA. Compl. ¶ 6–1. In accordance with the provisions of the IDEA, Student was classified under the disability category of “other health impaired” and an initial individualized education program (“IEP”) was developed on December 20, 2006, in accordance with 20 U.S.C. § 1414. Compl. ¶¶ 6–1, 6–m. Though Student had exhibited some behavioral problems in the past, Student's initial IEP did not address any behavioral concerns. Compl. ¶¶ 6–f, 6–m. Student's IEP was subsequently modified in April 2007, January 2008, and January 2009; however none of the modifications included any behavioral goals or objectives or a behavioral intervention plan (“BIP”). Compl. ¶¶ 6–o, 6–r, 6–z.
On February 25, 2009, Student was suspended from school long term for leaving three threatening messages on the principal's voice mail. Compl. ¶¶ 6–cc, 6–ee. Student was subsequently admitted to the Virginia Psychiatric Center, after a school psychologist determined Student's behavior, in association with his disciplinary incident, to be bizarre. Compl. ¶¶ 6–dd, 6–ee. On March 3, 2009, a Manifestation Determination Review (“MDR”) was conducted concerning Student's conduct that led to the suspension, in accordance with 20 U.S.C. § 1415(k)(1)(E). Compl. ¶ 6–ff. The MDR resulted in a finding that Student's conduct was not a manifestation of his disability. Id. Consequently, in April 2009, Brown filed complaints with the Virginia Department of Education (“VDOE”), asserting, inter alia, violations of state and federal law relating to the MDR conducted on March 3, 2009. Compl. ¶ 6–jj. After substantial investigation, on June 15, 2009, the VDOE issued a Letter of Findings, holding the School Board in noncompliance with federal law for failing to consider whether the behavioral conduct “had a direct and substantial relationship to” Student's disability. Compl. ¶ 6–nn; see 20 U.S.C. § 1415(k)(1)(E)(i)(I). On June 18, 2009, the School Board determined that Student would be placed in the Chrysalis Program (“Chrysalis”) at Granby Elementary School for the 2009–2010 academic year. Compl. ¶ 6–oo. Following this determination, and in accordance with the VDOE's Letter of Findings, a second MDR was conducted on July 9, 2009. Compl. ¶ 6–pp. Again, the MDR resulted in a finding that Student's behavioral conduct was not a manifestation of his educational disability. Compl. ¶ 6–qq. Subsequently, on July 31, 2009, Brown, as parent and next friend of RP, requested a due process hearing against the School Board for violations of the IDEA.
On September 14, 2009, a seven-day hearing commenced before special education due process hearing officer Sarah Smith Freeman (“Hearing Officer”) to address the issue of whether Student's disciplinary placement in response to his threats against the principal constituted the least restrictive environment in which Student would receive a free appropriate public education (“FAPE”), pursuant to the IDEA. Compl. ¶ 8. The Hearing Officer heard evidence and oral arguments from both parties and issued a decision on the matter on October 23, 2009. Compl. ¶ 9. The Hearing Officer concluded, inter alia, that the School Board's disciplinary placement did not constitute the least restrictive environment for Student and that the School Board had failed to meet its requirements under the IDEA. Compl. ¶ 10.
In reaching her ultimate conclusions, the Hearing Officer found that, while the School Board's official records contained little information documenting Student's behavioral pattern, the guidance counselor's records, which were much more thorough, indicated a series of disciplinary events which placed the School Board on notice that Student was in need of a functional behavioral assessment and, ultimately a BIP, well before the disciplinary incident of February 2009. Sarah Smith Freeman, Va. Dep't of Educ., In Re Brown v. School Board of the City of Norfolk 23 (2009) [hereinafter VDOE Decision ]. Furthermore, the Hearing Officer determined that, though the School Board had evidence to suggest that Student suffered from one or more mental infirmities either in addition to or as a result of his physical ailments, the School Board, nevertheless failed to evaluate the effect of these mental difficulties on Student's behavior. Id. at 25. This failure constituted a substantial violation of the School Board's obligations under the “child find” provisions of the IDEA. Id.
With regard to Student's placement in the Chrysalis Program following the disciplinary incident of February 2009, the Hearing Officer found that the placement did not constitute the least restrictive environment in which Student would receive a FAPE. Id. at 25. The Hearing Officer determined that Student would be removed from his current general education environment and placed in an environment where he would attend school only with other children with disciplinary problems. Id. at 25–26. The Hearing Officer concluded that Student receives educational benefit from the inclusive setting, which he would not receive in the Chrysalis setting. Id. at 28. Further, the Hearing Officer also concluded that the School Board failed to comply with certain procedural requirements of the IDEA prior to changing Student's educational placement. Id. at 29–30; see 20 U.S.C. § 1415(k)(1)(E).
After determining that Student's placement in the Chrysalis Program was a direct result of the School Board's failure to implement the IEP, the Hearing Officer ordered the following forms of relief: (1) Brown to receive an independent educational evaluation of Student at public expense; (2) Brown and the school psychologist to complete ADHD testing of Student; (3) the IEP team to convene a meeting at the culmination of all ordered testing; (4) IEP team to implement Student's draft IEP of July 9, 2009; and (5) the School Board to provide Student with regular guidance counseling services as an IEP accommodation. VDOE Decision, at 33–34. Following the Hearing Officer's decision and order, the School Board filed the instant action in this Court on January 20, 2010, challenging several of the administrative findings of the Hearing Officer.
On September 13, 2010, the School Board filed its Motion for Summary Judgment seeking to set aside the administrative findings of the special education due process hearing officer. Brown, as parent and next friend of RP, filed a Response in Opposition to Plaintiff's Motion and Defendant's Motion for Summary Judgment on September 24, 2010. Oral arguments on this matter were heard before this Court on October 21, 2010. Accordingly, this matter is now ripe for judicial determination.
II. LEGAL STANDARD
The IDEA, 20 U.S.C. § 1400 et seq., provides any party aggrieved by a decision reached at a due process hearing of the state educational agency with a right to bring a civil action in a United States district court. 20 U.S.C. § 1415(i)(2). A district court reviewing a decision of the educational agency “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of ...
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