Mclean et al v. District of Columbia

Cross MOTION for Summary Judgment

D.D.C.April 7, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) SHANIKA MCLEAN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 16-cv-2067 (APM) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) ) DEFENDANT DISTRICT OF COLUMBIA’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Defendant, through counsel, respectfully moves this Court pursuant to Fed. R. Civ. P. 56, for an order of judgment in its favor in the above-captioned case. As established by the administrative record and the accompanying supporting memorandum, the challenged administrative determination under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., should be affirmed. Summary judgment should be granted for Defendant, because Plaintiffs had a right to independent evaluations, which they failed to exercise, and consequently Plaintiffs submitted no evaluative data to support their request for compensatory education. Further grounds in support of Defendant’s motion are as stated in the attached memorandum of points and authorities. These arguments and factual points are also relied upon, as indicated, in the supporting memorandum of points and authorities in opposition to Plaintiffs’ motion for summary judgment. Respectfully submitted, KARL A. RACINE Attorney General for the District of Columbia Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 1 of 10 2 GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division /s/ Veronica A. Porter VERONICA A. PORTER [412273] Acting Chief, Civil Litigation Division Section II Suite 630 South 441 Fourth Street, NW Washington, D.C. 20001 (202) 724-6651 (202) 730-0644 (fax) E-mail: veronica.porter@dc.gov April 7, 2017 Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 2 of 10 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) SHANIKA MCLEAN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 16-cv-2067 (APM) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Defendant, through counsel, respectfully moves this Court pursuant to Fed. R. Civ. P. 56, for an order of judgment in its favor in the above-captioned case. As established by the administrative record and the accompanying supporting memorandum, the challenged administrative determination under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., was appropriate. Summary judgment should be granted for Defendant, because Plaintiffs had a right to independent evaluations, which they failed to exercise, and consequently Plaintiffs submitted no evaluative data to support their request for compensatory education. INTRODUCTION The facts pertinent to the resolution of this appeal are simpler than Plaintiffs’ brief suggests. In February of 2014, Plaintiffs asked the District of Columbia Public Schools (DCPS) to evaluate D.M. AR at 36-51. DCPS evaluated D.M., and did not find him to be a student with a disability in need of special education and related services. AR at 53. During the 2015-2016 school year, DCPS again evaluated D.M., this time finding him eligible. AR at 142. On April 18, 2016, Plaintiffs filed an administrative due process complaint asserting one claim: “Whether Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 3 of 10 4 DCPS denied the student a FAPE when DCPS failed to comprehensively evaluate the student and/or conduct comprehensive evaluations following the initial referral for evaluations in April/May 2014.” AR 5. Plaintiffs asked the hearing officer to order independent evaluations and compensatory education “for [D.M.] not being determined eligible for special education and provided appropriate services beginning in the summary of 2014.” Id. During the administrative hearing, Plaintiffs presented the testimony of Dr. Wilma Gaines, who was qualified as an expert in special education related to evaluating students for eligibility and Dr. Martha Ozer, who was qualified as an expert in clinical and school psychology related to evaluating students with special needs. AR at 349. Plaintiffs’ experts testified that the evaluation conducted in 2014 was insufficient. AR 351-358; 425-438. Dr. Gaines opined that to remedy the insufficient 2014 evaluation, D.M. should receive compensatory education in the form of 370 hours of specialized tutoring and 37 hours of counseling. AR 255-256, 371. The hearing officer agreed with Plaintiffs that the May 2014 evaluation “was not sufficiently comprehensive to meet the evaluation requirements of the IDEA.” AR 14. But he found that Plaintiffs failed to present evidence that D.M. met IDEA eligibility criteria in 2014. AR 15. Consequently, the hearing officer concluded that Plaintiffs failed to show that the student was denied a free appropriate public education (FAPE). AR 17. STANDARD OF REVIEW Summary Judgment Under Rule 56(c) of the Federal Rules of Civil Procedure, a party is entitled to summary judgment if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Although a court should draw all reasonable inferences from the records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 4 of 10 5 477 U.S. 242, 248 (1986). To be genuine, the issue must be supported by sufficiently admissible evidence such that a reasonable trier of fact could find for the nonmoving party; to be material, the factual assertion must be capable of affecting the substantive outcome of the litigation. See id.; see also Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). In cases such as this, the IDEA dictates that “the court [ ] shall receive the records of the administrative proceedings; [ ] shall hear additional evidence at the request of a party; and [ ] basing its decision on the preponderance of the evidence, shall grant such relief as the court determines appropriate.” 20 U.S.C. §1415(i)(2)(B). When, as here, neither party has requested that this Court hear additional evidence, the “motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record.” Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). The Review of Administrative Decisions under IDEA The IDEA provides for judicial review in state or federal court for “[a]ny party aggrieved by the findings and decision” rendered in a due process hearing. 20 U.S.C. §1415(i)(2)(A). In conducting such review, the “preponderance of the evidence” standard of 20 U.S.C. §1415(i)(2)(B)(iii) “is by no means an invitation to the court to substitute their own notions of sound educational policy for those of the school authorities which they review.” Board of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). Stated differently, the court should not “reverse the hearing officer’s findings simply because [the court] disagree[s] with them.” Board of Educ. of Arlington Heights Sch. Dist. No. 25 v. Illinois State Board of Educ., 2001 U.S. Dist. LEXIS 6994, 12 (N.D. Ill. March 19, 2001). The party challenging the hearing officer’s determination bears the burden of persuading the court that the hearing officer was incorrect. Angevine v. Smith, 292 U.S. App. D.C. 346, 959 F.2d 292, 295 (1992); Kerkam v. McKenzie, 274 U.S. App. D.C. 139, 862 F.2d 884, 887 (1988); Lyons v. Smith, 829 F. Supp. 414, 417 (D.D.C. 1993). While the Court is authorized to make an Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 5 of 10 6 independent determination, “it must also give ‘due weight’ to the administrative proceeding and afford some deference to the expertise of the hearing officer and school officials responsible for the child’s education.” Lyons v. Smith, supra, 829 F. Supp. at 418. As explained in S.H. v. State-Operated School Dist. of the City of Newark, 336 F.3d 260, 269-271 (3d Cir. 2003), a district court reviewing an HOD is “required to defer to the ALJ’s factual findings unless it can point to contrary non-testimonial extrinsic evidence on the record.” This deference results from Congress’ recognition of the “specialized knowledge and experience” required to make complicated educational choices. Rowley, supra, 458 U.S. at 207-08. Accordingly, before this Court may reverse the hearing officer’s decision, Plaintiffs must show by a “preponderance of the evidence,” giving the hearing officer’s finding “due weight,” that the hearing officer was wrong. 1 ARGUMENT The Hearing Officer Did Not Err In Denying Plaintiffs’ Request For Independent Evaluations and Compensatory Education, Because Plaintiffs Failed To Exercise Their Statutory Right To Independent Evaluations And The Record Evidence Fails To Support Their Request For Compensatory Education. There is no dispute that DCPS evaluated D.M. in May of 2014. See Pl. Mot. at 5. And there is no dispute that this evaluation was insufficient; the hearing officer so concluded and the District has not appealed that conclusion. See AR 3-16. There is also no dispute that this was a procedural violation of the IDEA. See Pl. Mot. at 15. The only dispute is what, if any, relief does the administrative record support for this violation. The answer is none. The relief available to Plaintiffs after the 2014 evaluation and without any due process hearing was a statutory right to an independent evaluation paid directly by DCPS. With the data from that evaluation in hand, Plaintiffs could have (1) requested another eligibility determination (which 1 The D.C. Special Education Rights Act of 2014 effected changes to the burden of proof in due process hearings for cases filed after July 1, 2016. See D.C. Acts 29-486, § 103(6). This case was filed before the effective date. Thus, the burden of proof was on Plaintiffs. Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 6 of 10 7 ultimately happened without independent evaluations), and (2) sought compensatory education under the Reid standard. Instead, Plaintiffs bypassed their independent evaluation from DCPS, and following a 2016 eligibility finding, now ask this Court for independent evaluations and compensatory education. It is unclear why Plaintiffs did not simply request an independent evaluation directly from DCPS, which is a parent’s right under the IDEA’s implementing regulations. “The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child.” 34 C.F.R. §300.502(b)(1). That provision is automatically triggered “if the parent disagrees with an evaluation obtained by the public agency.” Id. The consequences of Plaintiffs’ failure to exercise this right are twofold: 1) it rendered their due process claim for independent evaluations superfluous (and two years late) and 2) it resulted in the lack of evaluative data they needed to support their request for compensatory education. It makes no sense for Plaintiffs to seek independent evaluations for 2014 evaluations from a hearing officer in 2016 when she had a statutory right to simply ask DCPS to fund them in 2014. Nor does it make sense to file a due process complaint two years after the insufficient evaluation and one year after a 2016 evaluation that she has not challenged. Therefore, regardless of the hearing officer’s reasoning, there is no error in his denial of independent evaluations. With respect to compensatory education, because Plaintiffs did not obtain independent evaluations to challenge the 2014 evaluation, they have no evidentiary support for anything beyond the fact that the 2014 evaluation was insufficient. Compensatory education is an available remedy once it has been shown that a child is entitled to services under the IDEA and the child was denied those services. Reid v. District of Columbia, 310 F. Supp. 2d 137, 149 (D.D.C. 2004). However, an award of compensatory education must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 7 of 10 8 services the school district should have supplied in the first place.” Reid at 524. Thus, to support a claim for compensatory education, Plaintiffs at the very least need to show (1) D.M.’s education level in 2014 and the educational level that D.M. would have enjoyed had he been comprehensively evaluated and received specialized instruction beginning in 2014; and (2) the type and amount of services D.M. would need now to bring him to that educational level. Unfortunately, Plaintiffs only produced enough evidence to show that the 2014 evaluation was insufficient. And that does not meet the Reid standard to support a claim for compensatory education. Plaintiffs completely bypass their statutory right to an independent evaluation and the Reid standard. Instead they argue that the hearing officer should have found that DCPS’s failure to conduct an evaluation impeded the parental opportunity to participate in the decision-making process. See Pl. Mot. at 15-19. Plaintiffs’ argument misses the point. Even if the hearing officer had found that the insufficient evaluation impeded parental participation in the eligibility process, Plaintiffs still failed to produce the evidence required by Reid to support their request for compensatory education. CONCLUSION For these reasons, the hearing officer’s decision should be affirmed. Summary judgment should be entered for Defendant on all counts. KARL A. RACINE Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 8 of 10 9 /s/ Veronica A. Porter VERONICA A. PORTER [412273] Acting Chief, Civil Litigation Division Section II Suite 630 South 441 Fourth Street, NW Washington, D.C. 20001 (202) 724-6651 (202) 730-0644 (fax) E-mail: veronica.porter@dc.gov April 7, 2017 Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 9 of 10 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) SHANIKA MCLEAN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 16-cv-2067 (APM) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) ) ORDER Upon consideration of Plaintiffs’ Motion for Summary Judgment, Defendant’s Opposition, Defendant’s Motion for Summary Judgment, and the record herein, it is, by this Court this day of , 2017; ORDERED that Plaintiffs’ Motion for Summary Judgment is DENIED. It is FUTHER ORDERED that Defendant’s Motion for Summary Judgment is GRANTED. And it is FURTHER ORDERED that judgment is entered for Defendant, and the above-captioned case is DISMISSED WITH PREJUDICE. United States District Judge Amit P. Mehta Case 1:16-cv-02067-APM Document 12 Filed 04/07/17 Page 10 of 10