Smith v. District of Columbia ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
JAMES SMITH, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-2216 (RWR)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff James Smith brought this action on behalf of his
minor son, O.E., under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., challenging a
hearing officer’s dismissal of his due process complaint that
alleged that the District of Columbia Public Schools (“DCPS”)
denied O.E. a free, appropriate public education (“FAPE”) by
failing to timely conduct and review comprehensive psychological,
speech and language, social history, and educational
reevaluations of O.E. The parties have cross-moved for summary
judgment. Because Smith has not shown that any failure to timely
conduct the reevaluations affected his or O.E.’s substantive
rights, Smith’s motion for summary judgment will be denied and
the District of Columbia’s motion for summary judgment will be
granted.
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BACKGROUND
When Smith filed this complaint, O.E. was a twelve year-old
student eligible for special education enrolled at the Children’s
Guild, a full-time special education school. (Def.’s Stmt. of
Material Facts as to Which There is No Genuine Issue ¶¶ 1, 3.)
After Smith requested a reevaluation of O.E., a multidisciplinary
team (“MDT”) convened on May 22, 2008 to assess O.E.’s
educational progress. (Pl.’s Stmt. of Material Facts Not in
Dispute (“Pl.’s Stmt.”) ¶¶ 5-6.) Smith attended this meeting.
(A.R. at 25.) The MDT observed that O.E.’s participation,
behavior, and availability to learn had all greatly improved
since the team last convened. (Id. at 26, 28.) O.E.’s
evaluations were outdated (id. at 28), and even in light of the
positive report, the MDT determined that psychological, speech
and language, social history, and educational reevaluations of
O.E. were appropriate. (Pl.’s Stmt. ¶ 8.) The MDT noted that
O.E.’s “goals/objectives will remain the same until the
completion of the [re]evaluations.” (A.R. at 28.)
On July 23, 2008, Smith filed an administrative due process
complaint, alleging that “[s]ince May 22, 2008, DCPS ha[d] not
conducted and reviewed any of the ordered [re]evaluations.” (Id.
at 21.) A hearing officer convened a due process hearing on
August 11, 2008. (Id. at 1.) In a written decision eleven days
later, the hearing officer dismissed the complaint on the ground
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that the D.C. Code required DCPS “to perform the evaluations”
within 120 days of the request,1 concluding that DCPS had until
September 22, 2008 to conduct the reevaluations. (Id. at 5.)
Meanwhile, DCPS conducted a speech and language reevaluation on
August 6, 2008 and a comprehensive psychological reevaluation on
September 5, 2008. (See Def.’s Mem. of P. & A. in Supp. of
Def.’s Mot. for Summ. J., and in Opp’n to Pl.’s Mot. for Summ. J.
(“Def.’s Mem.”), Ex. 1; Ex. 2.) Smith brought this action,
challenging the hearing officer’s dismissal.
DISCUSSION
The parties have cross-moved for summary judgment under
Federal Rule of Civil Procedure 56(c). Rule 56(c) provides for
entry of summary judgment if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, “show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c); see also Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). “[T]he plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
1
The hearing officer cited D.C. Code § 38-2501(a) to
support his conclusion that a 120-day period applied. That code
provision was repealed in 2007. See 2006 D.C. Legis. Serv. 16-
269 (West). D.C. Code § 38-2561.02(a) is the provision that was
in effect at the time of the due process hearing that contains
the language that the hearing officer cited.
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fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
IDEA “ensure[s] that all children with disabilities have
available to them a [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). “‘[T]he primary vehicle
for implementing’” IDEA’s goals is the individualized education
program (“IEP”), “‘which the [IDEA] mandates for each child.’”
Harris v. District of Columbia, 561 F. Supp. 2d 63, 65 (D.D.C.
2008) (second alteration in original) (quoting Honig v. Doe, 484
U.S. 305, 311 (1988)). An IEP describes the nature of a child’s
disabilities, sets educational and functional goals for the
child, and details the necessary steps a school must take to
support the child’s progress.2 D.S. v. District of Columbia, 699
F. Supp. 2d 229, 233-34 (D.D.C. 2010) (citing 20 U.S.C.
§ 1414(d)(1)(A)). “Because the IEP must be ‘tailored to the
2
“A student’s IEP is developed by a team that includes the
student’s parents, a regular education teacher, a special
education teacher, a representative of the school district, an
individual who can interpret evaluation results, personnel with
particular knowledge of the student if applicable, and sometimes
the student [himself].” T.T. v. District of Columbia, Civil
Action No. 06-207 (JDB), 2007 WL 2111032, at *3 (D.D.C. July 23,
2007) (citing 20 U.S.C. § 1414(d)(1)(B)).
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unique needs’ of each child, it must be regularly revised in
response to new information regarding the child’s performance,
behavior, and disabilities.” Id. at 234 (internal citation
omitted) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 181
(1982)). IDEA requires an initial evaluation of a child to
determine if that child is eligible for special education. 20
U.S.C. § 1414(a)(1). A reevaluation of the child may take place
if a local educational agency (“LEA”) determines one is warranted
or if the child’s parents or teachers request one, 20 U.S.C.
§ 1414(a)(2)(A), and the MDT must base the child’s IEP on the
most recent evaluation. 20 U.S.C. § 1414(d)(3)(A)(iii).
“IDEA allows parents to file administrative complaints and
request due process hearings ‘with respect to any matter relating
to the . . . evaluation . . . of the child, or the provision of a
[FAPE] to such child.’” Wright v. District of Columbia, Civil
Action No. 05-990 (RWR), 2007 WL 1141582, at *2 (D.D.C. Apr. 17,
2007) (quoting 20 U.S.C. § 1415(b)(6)(A)). “Any party aggrieved
by the findings and decisions made” at a due process hearing
“shall have the right to bring a civil action with respect to the
complaint presented . . . in a district court of the United
States[.]” 20 U.S.C. § 1415(i)(2)(A). A reviewing court is to
“review the administrative record, hear additional evidence if so
requested by the parties, and, based on the preponderance of the
evidence, . . . grant such relief as the court determines is
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appropriate.” Wright, 2007 WL 1141582, at *2 (internal quotation
marks omitted); 20 U.S.C. § 1415(i)(2)(C). The administrative
officer’s findings must be given due weight, but less deference
is called for than would normally be accorded an administrative
decision. See Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir.
1988). “[A] party challenging the administrative determination
must at least take on the burden of persuading the court that the
hearing officer was wrong[.]” Id. A court must consider whether
the LEA has complied with the procedural requirements of IDEA and
whether the IEP is “reasonably calculated to enable the child to
receive educational benefits[,]” but a court should not
substitute its own judgment for that of a school agency’s
regarding what is in the best educational interests of a student.
Rowley, 458 U.S. at 206-07.
IDEA and its implementing regulations do not set a time
frame within which an LEA must conduct a reevaluation after one
is requested by a student’s parent. See Herbin ex rel. Herbin v.
District of Columbia, 362 F. Supp. 2d 254, 259 (D.D.C. 2005). In
light of the lack of statutory guidance, Herbin concluded that
“[r]eevaluations should be conducted in a ‘reasonable period of
time,’ or ‘without undue delay,’ as determined in each individual
case.” Id. (quoting Office of Special Education Programs Policy
Letter in Response to Inquiry from Jerry Saperstone, 21
Individuals with Disabilities Education Law Report 1127, 1129
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(1995)). The District of Columbia argues, citing D.C. Code § 38-
2561.02(a), that there is a 120-day deadline for conducting a
reevaluation. (Def.’s Mem. at 8.) D.C. Code § 38-2561.02(a)
provides that “DCPS shall assess or evaluate a student who may
have a disability and who may require special education services
within 120 days from the date that the student was referred for
an evaluation or assessment.” The provision does not apply
explicitly to reevaluations, and interpreting “evaluation” to
encompass reevaluations may not be consistent with the structure
of IDEA, which contains separate sections detailing the
procedures for “initial evaluations” and “reevaluations.” See 20
U.S.C. § 1414(a). Additionally, D.C. Code § 38-2561.02(a) refers
only to students who “may have a disability,” which implies that
they have not yet had initial evaluations that have determined
conclusively that they are disabled. This language suggests the
provision does not apply to reevaluations, which necessarily must
follow initial evaluations. D.C. Code § 38-2561.02(a), then,
will not be deemed to apply to the reevaluations that are at
issue in this case, and the hearing officer may have erred by
applying the 120-day time limit instead of conducting a fact-
intensive inquiry to determine a reasonable period of time within
which to reevaluate O.E.3
3
Whether the hearing officer did err in this way is not
conclusive.
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However, a DCPS failure to reevaluate O.E. more quickly does
not necessarily entitle Smith to relief. A failure to timely
reevaluate is at base a procedural violation of IDEA. See
LeSesne ex rel. B.F. v. District of Columbia, Civil Action No.
04-620 (CKK), 2005 WL 3276205, at *8 (D.D.C. July 26, 2005)
(characterizing cases “where a student is seeking a reevaluation,
but is already in a placement” as involving procedural violations
of IDEA). “[P]rocedural violations of IDEA do not, in
themselves, inexorably lead a court to find a child was denied
FAPE.” Schoenbach v. District of Columbia, 309 F. Supp. 2d 71,
78 (D.D.C. 2004); 20 U.S.C. § 1415(f)(3)(E)(ii). Smith argues,
citing Harris, that a failure to reevaluate is not a mere
procedural violation of IDEA. (Pl.’s Mem. in Supp. of Pl.’s Mot.
for Summ. J. (“Pl.’s Mem.”) at 11.) In Harris, 561 F. Supp. 2d
at 64-65, DCPS took no action for over two years in response to a
parent’s request for reevaluation of her child’s functional
behavior. The court construed DCPS’ two-year complete “failure
to act on a request for an independent evaluation” as more than
“a mere procedural inadequacy[.]” Id. at 68-69. This case,
however, does not involve a two-year complete failure by DCPS to
take any action on Smith’s request for a reevaluation. DCPS
conducted some of the requested evaluations in August and
September of 2008. (See Def.’s Mem., Ex. 1; Ex. 2.) Even if the
hearing officer had properly determined a reasonable procedural
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time period for conducting the reevaluations and DCPS had not
completed them all within that period, that would not necessarily
end the analysis.
“[A]n IDEA claim is viable only if those [violations of]
procedural [deadlines] affected the student’s substantive
rights.” Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d
828, 834 (D.C. Cir. 2006); see also C.M. v. Bd. of Educ., 128
Fed. Appx. 876, 881 (3d Cir. 2005) (per curiam) (“[O]nly those
procedural violations of the IDEA which result in loss of
educational opportunity or seriously deprive parents of their
participation rights are actionable.”). The plaintiff bears the
burden of proving a violation of substantive rights. See
Holdzclaw v. District of Columbia, 524 F. Supp. 2d 43, 48 (D.D.C.
2007); see also Kruvant v. District of Columbia, 99 Fed. Appx.
232, 233 (D.C. Cir. 2004) (denying parents relief because
“although DCPS admits that it failed to satisfy its
responsibility to assess [the student] for IDEA eligibility
within 120 days of her parents’ request, the [parents] have not
shown that any harm resulted from that error”). “A delay does
not affect substantive rights if the student’s education would
not have been different had there been no delay.” D.R. ex rel.
Robinson v. Gov’t of D.C., 637 F. Supp. 2d 11, 18-19 (D.D.C.
2009) (finding that the defendant’s delay affected the student’s
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substantive rights because the student’s most recent IEP differed
from the one previously issued).
Smith has not carried his burden of proof by pointing to
evidence in the record demonstrating that O.E.’s education would
have been different but for the delay. Although the May 22, 2008
MDT meeting notes state that the “goals/objectives [of the IEP]
will remain the same until the completion of the [re]evaluations”
(A.R. at 28), the notes provide no basis for concluding that
there was any deficiency in the education O.E. received at the
Children’s Guild School. In fact, the team observed that O.E.’s
“[p]articipation in academics has improved 100%[,]” “[h]e is
behaving well[,]” and his “[t]eachers state he has done a
complete turn around and is now available for learning.” (A.R.
at 26, 28.) Although Smith argued at the due process hearing
that “the team says that they cannot discuss placement until the
assessments are done, indicating that potentially his placement
would change” (A.R. at 55), this was mere speculation, and there
is no evidence in the record that O.E.’s placement would have
changed had DCPS completed all the reevaluations sooner. Nor has
Smith presented evidence that the reevaluations, once conducted,
led to a change in O.E.’s placement or education.
Smith also argues, citing Amanda J. ex rel. Annette J. v.
Clark County Sch. Dist., 267 F.3d 877 (9th Cir. 2001), that DCPS’
failure to timely perform the reevaluations constituted a denial
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of FAPE because it impeded his ability to participate in the
decision-making process. (Pl.’s Mem. at 12-13.) The IDEA
“guarantees parents of disabled children the opportunity to
participate in the evaluation and placement process.” Lesesne,
2005 WL 3276205, at *2; see also 20 U.S.C. §§ 1414(f),
1415(b)(1). While “not every technical violation of the
procedural prerequisites of an IEP will invalidate its legitimacy
. . . , procedural inadequacies that . . . seriously infringe
upon the parents’ opportunity to participate in the IEP
formulation process . . . clearly result in the denial of a
FAPE.” A.I. ex rel. Iapalucci v. District of Columbia, 402 F.
Supp. 2d 152, 164 (D.D.C. 2005) (internal quotation marks and
citations omitted). In Annette J., 267 F.3d at 892-93, the
school district failed to disclose to the student’s parents the
student’s full records, which included reports that the student
exhibited behavioral characteristics associated with autism. The
court found that this “procedural violation[], which prevented
Amanda’s parents from learning critical medical information about
their child,” denied the student a FAPE because “Amanda’s parents
[were] prevented from participating fully, effectively, and in an
informed manner in the development of Amanda’s IEP[.]” Id. at
894.
Here, by contrast, Smith has presented no evidence
supporting his assertion that he could not meaningfully
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participate in the development of O.E.’s IEP. He attended the
May 22, 2008 MDT meeting. (A.R. at 25.) The meeting adjourned
so that the MDT could incorporate any new information gleaned
from the reevaluations into O.E.’s IEP. (See id. at 26 (“We will
reconvene once assessment[s] have been completed.”).) Smith
presents no evidence that the team met again before DCPS
completed the reevaluations or that he was unable to participate
in any follow up MDT meeting that took place because the
reevaluations were not more timely completed. He therefore has
not established that DCPS denied his right to participate
meaningfully in the development of O.E.’s IEP. See T.T. v.
District of Columbia, Civil Action No. 06-207 (JDB), 2007 WL
2111032, at *5 (D.D.C. July 23, 2007) (finding that the parent
had an opportunity to participate meaningfully in the educational
placement of the child when she assisted in developing the
student’s IEP at the MDT meeting).
CONCLUSION
Smith has not shown that DCPS’ failure to conduct the
reevaluations here sooner affected substantive rights. Because
Smith has not presented evidence of a substantive harm, either to
himself or to O.E., no relief from the hearing officer’s
dismissal of the administrative complaint is warranted
irrespective of whether the hearing officer erred by concluding
that DCPS had 120 days to complete the reevaluations. No genuine
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issues of material fact remain, and the defendant is entitled to
judgment as a matter of law. Accordingly, the plaintiff’s motion
for summary judgment will be denied, and the defendant’s motion
for summary judgment will be granted. An appropriate Order
accompanies this Memorandum Opinion.
SIGNED this 30th day of November, 2010.
__________/s/_______________
RICHARD W. ROBERTS
United States District Judge