UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
J.J., et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 07-1283 (RWR)
)
THE DISTRICT OF COLUMBIA )
et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Latonia Jenkins and her minor son, J.J., brought this action
under the Individuals with Disabilities Education Act, 20 U.S.C.
§§ 1400 et seq., as amended by the Individuals with Disabilities
Education Improvement Act, Pub. L. No. 108-446, 118 Stat. 2647
(2004) (“IDEA”), and Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 et seq., challenging the dismissal of their
administrative complaint following a hearing officer’s
determination (“HOD”) that the plaintiffs failed to respond to
attempts by the District of Columbia Public Schools (“DCPS”) to
schedule a meeting and failed to work with the DCPS to advance
the educational review process. The plaintiffs move for summary
judgment, and the defendants cross-move for summary judgment.
Because the plaintiffs have not established that the hearing
officer erred, the defendants’ motion for summary judgment will
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be granted, and the plaintiffs’ motion for summary judgment will
be denied.
BACKGROUND
J.J. was a student enrolled at Noyes Elementary (“Noyes”), a
public school. (Compl. ¶¶ 5-6.) He was diagnosed as having a
conduct disorder. On June 6, 2006, Hearing Officer Seymour DuBow
ordered an independent psycho-educational evaluation and a
comprehensive psychological evaluation for J.J. The hearing
officer also ordered the DCPS to convene a multi-disciplinary
team (“MDT”) meeting within 15 business days after the receipt of
J.J.’s evaluations to review the evaluations, determine J.J.’s
eligibility for compensatory education, and if warranted,
determine the appropriate placement and develop a compensatory
and individual education plan (“IEP”).1 (A.R. 43-44.) DCPS
received the evaluations on October 2, 2006, and thus was
required to hold the MDT eligibility meeting by October 24, 2006.
(A.R. at 38; Defs.’ Stmt. of Mat. Facts Not in Dispute (“Defs.’
Stmt.”) ¶ 4.) However, DCPS did not do so. (Defs.’ Mem. at 2;
Pls.’ Mem. in Supp. of Mot. for Summ. J. (“Pls.’ Mem.”) at 3.)
Jenkins filed an administrative due process complaint alleging
1
An MDT team, which is also referred to as an “IEP Team,”
see 20 U.S.C. § 1415(f)(1)(B)(i), develops an IEP for a disabled
student. Stanton v. Dist. of Columbia, 680 F. Supp. 2d 201, 203
n.1 (D.D.C. 2010) (citing Jones ex rel. A.J. v. Dist. of
Columbia, 646 F. Supp. 2d 62, 64 (D.D.C. 2009)).
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that DCPS failed to provide J.J. with special education services.
(A.R. at 38.)
On November 8, 2006, the special education coordinator from
Noyes sent the plaintiffs’ counsel a letter inviting Jenkins to
select one of three possible times that month for the DCPS to
conduct an MDT meeting with MDT team members to review the
evaluations, discuss placement, eligibility and compensatory
education, and develop a student evaluation plan (“SEP”).2 (A.R.
at 128; Defs.’ Stmt. ¶ 6.) The plaintiffs did not respond to
that letter (A.R. at 4; Defs.’ Stmt. ¶ 7), and as a result, the
DCPS did not hold the meeting. On December 19, 2006, a hearing
officer found that the DCPS failed to comply with the June 6,
2006 HOD and ordered the DCPS to schedule that meeting for J.J.
before the 2006 Winter Recess began three days later. (A.R. at
165-66; Compl. ¶ 12; Defs.’ Stmt. ¶ 8.) However, no meeting
occurred before the beginning of the 2006 Winter Recess. (Compl.
¶ 12.) On January 10, 2007, the DCPS sent a second letter of
invitation to Jenkins’ counsel proposing an additional three
dates in that month on which to hold an MDT meeting with MDT team
members to review the evaluations, discuss eligibility and
2
This invitation letter, and at least two that followed it
in January 2007 and March 2007 also bore the text “Resolution
Meeting” inserted in a “Re:” line in the caption. Parties have a
right to have a resolution meeting to try to resolve a filed due
process complaint. (See A.R. at 95.)
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placement, and develop an IEP. (A.R. at 125.) The plaintiffs
did not respond to that letter. (Defs.’ Stmt. ¶ 9.)
In February 2007, Jenkins filed two administrative due
process complaints, alleging that the DCPS denied J.J. a free
appropriate public education (“FAPE”) in part because the DCPS
failed to hold the MDT eligibility meeting ordered on
December 19, 2006. (A.R. at 94-98, 132-37; Defs.’ Stmt. ¶ 10;
Compl. ¶ 15.) DCPS in February sent another letter of invitation
to Jenkins’ counsel proposing three more dates for a meeting. On
February 26, 2007, Jenkins responded by proposing three
additional dates because she could not attend a meeting on any of
the dates proposed by the DCPS. (A.R. at 4; Defs.’ Stmt. ¶¶ 11-
12.) The DCPS responded by fax on February 28, 2007, informing
Jenkins that the dates she suggested would not work and instead
proposing two additional dates. (A.R. at 4; Defs.’ Stmt. ¶ 13.)
Jenkins responded one week later, proposing a date in March that
worked for DCPS. The next day, DCPS sent Jenkins another letter
of invitation for that date to meet with MDT team members to
review the evaluations, discuss placement, eligibility and
compensatory education, and develop the SEP. (A.R. at 4, 117-19;
Defs.’ Stmt. ¶ 14.)
The parties met on March 19, 2007. To resolve the
complaint, DCPS offered to hold an eligibility and SEP meeting at
Jenkins’ next available date, after which any educational
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services and compensatory education and placement could be
provided if they were warranted. Jenkins and her counsel
rejected that offer. (A.R. at 4, 109; Defs.’ Stmt. ¶¶ 14-16;
Pls.’ Stmt. ¶ 10.) Jenkins “wanted a new placement . . . in
addition to the meeting and evaluations.” (Pls.’ Reply at 5.)
She claims that “not all issues raised by the [due process]
complaint could be resolved,” so Jenkins “elected to move forward
with the due process hearing.” (Pls.’ Stmt. ¶ 10)3.
On April 5, 2007, Hearing Officer DuBow conducted a hearing
regarding the plaintiffs’ February 2, 2007 due process complaint.
(A.R. at 2.) On April 20, 2007, that hearing officer issued an
HOD dismissing the plaintiffs’ due process complaint against the
defendants. (Defs.’ Stmt. ¶¶ 18; Pls.’ Stmt. ¶ 14.) The issue
that the HOD addressed was whether “DCPS den[ied] a Free
Appropriate Public Education . . . to [J.J.] by failing to
convene an MDT/Eligibility Meeting[.]” (A.R. at 3.) The hearing
officer found, among other things, that DCPS made multiple
attempts to schedule a resolution meeting for J.J. between
October 2006 and the April 2007 hearing. (A.R. at 4.) The
hearing officer ruled:
Counsel for the parent has not met her burden of proof
that DCPS denied a FAPE to [J.J.] by failing to convene
an MDT eligibility meeting. The . . . DCPS tried on
3
According to the DCPS, DCPS conducted an MDT meeting for
J.J. on March 19, 2007 anyway, despite Jenkins’ decision to
continue with the due process complaint. (Defs.’ Stmt. ¶ 17.)
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several occasions to convene an MDT meeting to review
evaluations and determine eligibility. . . . [S]everal
Letters of Invitation were faxed to counsel for the
parent offering various dates to convene an MDT
meeting. . . . [M]any of the delays in convening an
MDT meeting were caused by a lack of response or
unavailability of counsel for the parent and the
parent. . . . This hearing officer finds that counsel
for the parent engaged in the same type of troubling
conduct of holding out for a hearing instead of going
through the MDT educational review process that the
. . . federal courts [have] found further delays the
educational process to the detriment of the student and
fails to give the school district an opportunity to
rectify the situation. At this stage, it is in the
best interests of the student for counsel for the
parent to directly contact counsel for DCPS to arrange
a mutually agreeable date to hold an MDT Eligibility
Meeting at Noyes Elementary School.
(A.R. at 4-5.)
The plaintiffs filed this three-count complaint challenging
the hearing officer’s dismissal. They allege that the DCPS
failed to provide J.J. with a FAPE in violation of the IDEA and
Section 504 of the Rehabilitation Act, that DCPS’ failure to
comply with the three-day deadline for holding an MDT eligibility
meeting set forth in the December 19, 2006 order violated the
IDEA and deprived J.J. of a FAPE, and that the hearing officer
erred since there was no evidence that DCPS made any attempts to
comply with the December 19 order. (Compl. ¶¶ 23-28.)
Both parties have moved for summary judgment. The
plaintiffs argue that the “DCPS provided no documentation” to the
hearing officer to show that it attempted to convene an MDT
eligibility meeting to comply with the previous HODs. The
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plaintiffs further argue that “courts generally find irreparable
harm” when school districts fail to implement a hearing officer’s
decision, and therefore, because the DCPS did not provide J.J.’s
mother the opportunity to participate in an eligibility and
placement meeting, it denied J.J. a FAPE. (Pls.’ Mem. at 9-11.)
The defendants argue that the hearing officer correctly
determined that the plaintiffs failed to carry their burden of
proving that DCPS denied J.J. a FAPE because they failed to
respond to DCPS’ invitations to attend an MDT eligibility meeting
and held out to J.J.’s detriment for litigating rather than
advancing the educational review process. (Defs.’ Mem. at 5-6.)
DISCUSSION
“Rule 56(c) provides for entry of summary judgment if
. . . ‘there is no genuine issue as to any material fact and
. . . the movant is entitled to a judgment as a matter of law.’”
J.N. v. Dist. of Columbia, 677 F. Supp. 2d 314, 319 (D.D.C. 2010)
(quoting Fed. R. Civ. P. 56(c)); see also Moore v. Hartman, 571
F.3d 62, 66 (D.C. Cir. 2009). “The plain language of Rule 56(c)
mandates the entry of summary judgment . . . against a party who
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). In an action challenging a
hearing officer’s decision under the IDEA where both parties move
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for summary judgment, the motions are treated as motions for
judgment based on the evidence in the record if neither party
introduces additional evidence. Stanton v. Dist. of Columbia,
680 F. Supp. 2d 201, 205 (D.D.C. 2010).
The IDEA “‘ensure[s] that all children with disabilities
have available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for further education,
employment, and independent living.’” J.N., 677 F. Supp. 2d at
319 (quoting 20 U.S.C. § 1400(d)(1)(A)). The statute gives
parents the ability to file administrative complaints and
“request due process hearings ‘with respect to any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate
public education to such child.’” J.N., 677 F. Supp. 2d at 319
(quoting Wright v. Dist. of Columbia, Civil Action No. 05-990
(RWR), 2007 WL 1141582, at *2 (D.D.C. April 17, 2007) (quoting
20 U.S.C. § 1415(b)(6)(A))). A court reviewing an administrative
determination made in an IDEA case reviews the administrative
record and may grant relief it determines to be appropriate,
based upon the preponderance of the evidence. J.N., 677 F. Supp.
2d at 319 (citing Wright, 2007 WL 1141582, at *2). The court
must give the administrative officer’s findings due weight,
although less deference than would normally be accorded an
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administrative decision. J.N., 677 F. Supp. 2d at 319 (citing
Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). “The
burden of proof falls upon the party challenging the
administrative determination, who must ‘at least take on the
burden of persuading the court that the hearing officer was
wrong.’” Suggs v. Dist. of Columbia, 679 F. Supp. 2d 43, 48
(D.D.C. 2010) (quoting Hawkins v. Dist. of Columbia, 539 F. Supp.
2d 108, 112 (D.D.C. 2008)). A reviewing court’s primary
consideration is compliance with the procedural requirements of
IDEA; reviewing courts should avoid substituting their own
judgment for that of school agencies regarding the best
educational interests of a student. Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
“The IDEA attempts to guarantee children with disabilities a
FAPE by requiring states and the District of Columbia to
institute a variety of detailed procedures.” D.S. v. Dist. of
Columbia, 699 F. Supp. 2d 229, 233 (D.D.C. 2010). The procedural
safeguards present in the IDEA encourage parents to participate
fully in decisions affecting their childrens’ education by
guaranteeing parents of disabled children the opportunity to
participate in their childrens’ evaluation and placement. See
Rowley, 458 U.S. at 183 n.6; see also Holland v. Dist. of
Columbia, 71 F.3d 417, 421 (D.C. Cir. 1995); LeSesne v. Dist. of
Columbia, Civil Action No. 04-0620 (CKK), 2005 WL 3276205, at *2
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(D.D.C. July 26, 2005); 20 U.S.C. §§ 1414(f), 1415(b)(1).
Procedural inadequacies that deleteriously affect parents’
opportunity to participate in the IEP formulation process can
result in the denial of a FAPE. See A.I. v. Dist. of Columbia,
402 F. Supp. 2d 152, 163-64 (D.D.C. 2005).
Furthermore, even where an educational entity denies a
student a FAPE, “courts can nevertheless deny [relief] if a
parent’s own actions frustrated the school district’s efforts.”
Dorros v. Dist. of Columbia, 510 F. Supp. 2d 97, 100 (D.D.C.
2007) (citing Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d
1309, 1312-13 (11th Cir. 2003); MM v. Sch. Dist. of Greenville
County, 303 F.3d 523, 533-35 (4th Cir. 2002) (finding that a
child was not denied a FAPE where the school district attempted
to offer the child a FAPE but was unable to because the child’s
parents failed to attend an IEP meeting and failed to notify the
school district of a suitable time to schedule the meeting); and
Doe v. Defendant I, 898 F.2d 1186, 1189 n.1 (6th Cir. 1990)).
The applicable regulations provide that an educational
entity is required to involve a student’s parent at an initial
eligibility meeting:
Upon completion of the administration of assessments
and other evaluation measures[, a] group of qualified
professionals and the parent of the child determines
whether the child is a child with a disability . . . .
* * *
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In interpreting evaluation data for the purpose of
determining if a child is a child with a disability
under § 300.8, and the educational needs of the child,
each public agency must . . . [d]raw upon information
from a variety of sources, including aptitude and
achievement tests, parent input, and teacher
recommendations, as well as information about the
child’s physical condition, social or cultural
background, and adaptive behavior[.]
34 C.F.R. § 300.306(a), (c) (emphasis added). Parents must also
be allowed to attend each IEP meeting:
Each public agency must take steps to ensure that one
or both of the parents of a child with a disability are
present at each IEP meeting or are afforded the
opportunity to participate, including (1) [n]otifying
parents of the meeting early enough to ensure that they
will have an opportunity to attend; and (2)
[s]cheduling the meeting at a mutually agreed upon time
and place.
34 C.F.R. § 300.322(a). However, “[a] meeting may be conducted
without a parent in attendance if the public agency is unable to
convince the parents that they should attend” and the DCPS makes
detailed records of the attempts to contact the student’s
parents. Id.
Here, the plaintiffs’ argue essentially that DCPS violated
the previous HODs and denied J.J. a FAPE by failing to timely
convene the MDT eligibility meeting. The hearing officer
dismissed the complaint upon determining that the behavior of
J.J.’s parent and counsel caused much of the delay in DCPS timely
convening that meeting. The hearing officer relied in part on
the opinion in Lesesne. In Lesesne, the plaintiff brought a due
process complaint on behalf of her son, alleging that the DCPS
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denied her son a FAPE because the DCPS had made no attempt to
convene a meeting to develop an IEP. Lesesne, 2005 WL 3276205,
at *3. The hearing officer dismissed the parent’s due process
complaint with prejudice “because DCPS had made reasonable
efforts before the hearing to schedule an MDT meeting, and those
efforts were frustrated by Plaintiff’s counsel.” Id. at *4.
On February 24, 2004, [a special education coordinator]
faxed a Letter of Invitation to Plaintiff’s counsel,
proposing three dates, February 27, March 1, or
March 3, for a MDT/IEP meeting. Defs.’ Stmt. of Mat.
Facts ¶ 20. Plaintiff’s counsel rejected all dates by
fax on February 26, 2004, stating that at least one
week’s notice was required and asked for three more
dates. Id. ¶ 21. That same day, after receiving the
fax, [the special education coordinator] responded by
suggesting March 8, 9, or 10 -- all of which met the
timing condition set by Plaintiff’s counsel. Id. ¶ 24.
Plaintiff offered no response before an administrative
hearing was held on March 5, 2004, by an independent
H.O.
Id. (footnote omitted). The district court, stating that “[i]f
there is an impetus to create an IEP on the part of the public
school system, asking the district court to intervene before one
exists appears premature” upheld the hearing officer’s decision
because of the plaintiff’s uncooperative behavior, and because
the plaintiff’s attorney appeared to frustrate efforts to
schedule the IEP meeting in order to obtain attorneys fees. Id.
at *7; see also Dorros, 510 F. Supp. 2d at 101 (affirming hearing
officer’s decision dismissing a plaintiff’s complaint alleging
that the DCPS denied the plaintiff a FAPE by failing to hold an
eligibility meeting within the statutory deadline, where
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“plaintiffs, by their own conduct, delayed” the process by
failing to agree on the dates for the meeting proposed by the
DCPS).
The plaintiffs attempt to distinguish Lesesne by arguing
that in Lesesne, the DCPS sent its invitations to convene the MDT
meeting before the parent filed a due process complaint, while
here the DCPS sent its meeting invitations after the plaintiffs
filed due process complaints. (Pls.’ Mem. at 12.) It is true
that the first unanswered invitation was issued fifteen days
beyond the first HOD’s meeting deadline, and the second
unanswered invitation was issued not within the three-day period
before the winter recess began as required by the second HOD, but
rather was issued only in the days after the recess ended.
However, the distinction raised by the plaintiffs does not
undermine two core determinations of the hearing officer - - that
the plaintiffs interfered with the DCPS’ eventual attempts, while
technically belated, to schedule the eligibility meeting, and
that it was in J.J.’s best interests for his counsel to directly
contact DCPS to schedule an MDT meeting at that time. Plaintiffs
neither dispute nor justify their failure to respond to the early
invitations. Nor have plaintiffs provided any basis for this
court to second-guess Hearing Officer DuBow’s judgment that
convening the MDT meeting that DCPS had been proposing was in
J.J.’s best educational interests.
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The plaintiffs also argue that the HOD was flawed because
the record is “devoid of any evidence that the DCPS attempted to
convene [a] meeting to determine Eligibility.” (See Pls.’ Reply
at 9.) However, the record is otherwise. The DCPS provided to
the hearing officer the meeting notes from the March 19, 2007
resolution meeting, which contained a narrative description of
the efforts the DCPS made to schedule the eligibility meeting.
(A.R. at 108-109.) In addition, at least three of the
invitations sent to the plaintiffs’ attorney contained in the
administrative record clearly demonstrated DCPS’ attempts to
schedule an eligibility meeting. (See A.R. at 116-119, 124-129.)
Lastly, while the plaintiffs argue that the hearing officer
wrongly ignored their argument that J.J. should have already been
deemed eligible to receive services, the plaintiffs have provided
no authority showing that such a determination would have been
appropriately made by the hearing officer. See Dorros, 510 F.
Supp. 2d at 110 (affirming hearing officer’s decision that an
eligibility determination was premature where the DCPS had not
yet conducted an eligibility meeting).4
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Judgment will be entered for the defendants on the
plaintiffs’ claim under Section 504 of the Rehabilitation Act.
Section 504 of the Rehabilitation Act “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.” Robinson v. Dist. of Columbia,
535 F. Supp. 2d 38, 42 (D.D.C. 2008). “In the context of cases
involving children who receive benefits pursuant to the IDEA,
courts have consistently recognized that in order to establish a
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CONCLUSION
Because the plaintiffs have not demonstrated that the
April 2007 HOD was contrary to law, the defendants’ motion for
summary judgment will be granted, and the plaintiffs’ cross-
motion for summary judgment will be denied. An appropriate order
accompanies this Memorandum Opinion.
SIGNED this 8th day of March, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge
violation of § 504, ‘something more than a mere failure to
provide the free appropriate education required by [the IDEA]
must be shown.’” Taylor v. Dist. of Columbia, 683 F. Supp. 2d
20, 22 (D.D.C. 2010) (quoting Walker v. Dist. of Columbia, 157 F.
Supp. 2d 11, 35 (D.D.C. 2001)). Plaintiffs may pursue a denial
of a FAPE under § 504 where the plaintiffs show bad faith or
gross mismanagement on behalf of the school district. Torrence
v. Dist. of Columbia, 669 F. Supp. 2d 68, 72 (D.D.C. 2009). The
plaintiffs’ complaint does not allege, nor do the motion papers
present, sufficient facts to establish bad faith or gross
misconduct, and thus judgment will be entered for the defendants
on that claim.