UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KISHA HAWKINS, : : Plaintiff, : : v. : Civil Action No. 09-0491 (JR) : DISTRICT OF COLUMBIA, : : Defendant. :
MEMORANDUM
Kisha Hawkins seeks review of an independent hearing
officer’s decision that her seven-year-old son, D.C., is not
entitled to relief pursuant to the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The parties
have filed cross-motions for summary judgment. For the reasons
that follow, the defendant’s motion will be granted.
Background
Despite D.C.’s young age, the dispute over his
education between Hawkins and the District of Columbia Public
Schools (“DCPS”) has a long history. See Hawkins v. District of
Columbia, 539 F. Supp. 2d 108, 110-12 (D.D.C. 2008). On March 7,
2008, Judge Bates held that DCPS had failed to provide D.C. with
a free appropriate public education (“FAPE”) as required by IDEA,
and he ordered DCPS to convene a multi-disciplinary team (“MDT”)
meeting to determine D.C.’s eligibility for special educational
services. See id. at 116. On May 20, 2008, DCPS convened the
MDT meeting, which reached a preliminary determination that D.C. is eligible for educational services. A.R. 83-85. Hawkins
listened to the meeting by telephone. Id. at 83.
This period of relatively smooth relations between the
parties ended quickly. DCPS convened a second meeting on
June 10, 2008, at which it developed a draft Individualized
Education Program (“IEP”) for D.C.1 Id. at 94-102. Hawkins did
not attend, and the parties dispute whether DCPS gave her
adequate notice and scheduling options.2 Id. at 95. Three days
after the meeting, DCPS mailed the draft IEP to Hawkins’ counsel,
but it never received a response. A.R. Tr. 37-38, 59-60.
Although D.C. had attended Turner Elementary during the
previous school year, he did not initially attend any school from
September to November 2008. Id. at 48-49. Hawkins contends that
DCPS failed to designate a school for D.C. for the new school
year, while DCPS contends that she was at fault for failing to
enroll her son at Turner Elementary. DCPS sent correspondence to
Hawkins and her counsel on September 2, 2008, in an attempt to
schedule a meeting to develop a final IEP. Id. at 49-51. DCPS
also sent social workers to Hawkins’ home to determine why her
son was not in school. Id. While Hawkins met with a social
1 Hawkins objects to labeling the result of the June meeting an “IEP” because she contends it was not properly prepared. 2 Additionally, DCPS denies receiving a fax sent by Hawkins’ counsel on June 6 rejecting the June 10 meeting date and offering three alternative dates. A.R. 86-87; A.R. Tr. 36, 39-40.
- 2 - worker who visited, see St. of Kish Hawkins, attached to Pl.
Reply at Ex. 4, she did not make any additional efforts to
contact DCPS or to bring D.C. to school. However, on October 14,
2008, her counsel sent DCPS a request to hold another MDT meeting
and develop a final IEP. A.R. 88. DCPS did not responded to the
request.
On November 3, 2008, Hawkins filed a due process
complaint alleging, inter alia, that DCPS had failed to develop
an IEP or select a proper school for D.C. Id. at 9-13. On
November 20, 2008, Hawkins unilaterally enrolled her son in High
Road Primary School, a private school in Washington D.C. designed
to cater to special needs students. A.R. Tr. 26-27. On
December 9, 2008, the hearing officer held that Hawkins had
failed to meet her burden and dismissed her petition. A.R. 1-5.
On March 13, 2009, Hawkins filed this action, seeking review of
the hearing officer’s determination and demanding as relief,
inter alia, that DCPS fund D.C.’s attendance at High Road.
Sometime soon thereafter, DCPS agreed to fund D.C.’s
attendance at High Road, retroactive to his enrollment. See St.
of Sandra Booz, attached to Pl. Mot. at Ex. 2. Subsequently, on
April 22, 2009, the MDT developed a new IEP for D.C. See IEP,
attached to Pl. Mot. at Ex. 1. Hawkins signed the IEP,
indicating her assent to its terms. Id.
- 3 - Despite the apparent satisfaction of both parties,
litigation has continued. Hawkins moves for summary judgment,
alleging DCPS erred in various respects during the period from
May to November of 2008. DCPS cross-moves for summary judgment,
arguing, inter alia, that Hawkins has failed to meet the
statute’s requirements that she show substantive harm in
conjunction with the alleged procedural errors.
Standard of Review
In reviewing an IDEA due process hearing, a district
court must determine whether a plaintiff is entitled to judgment
based on a preponderance of the evidence. See 20 U.S.C.
§ 1415(i)(2)(C)(iii). When neither party requests that the court
hear additional evidence before ruling on a motion for summary
judgment, the motion is to be construed as a “procedural vehicle
for asking [a] judge to decide the case on the basis of the
administrative record.” Herbin v. District of Columbia, 362 F.
Supp. 2d 254, 258 (D.D.C. 2005) (internal quotations and citation
omitted). The party challenging the hearing officer’s
determination bears the burden of convincing the court that it
was incorrect. See Angevine v. Smith, 959 F.2d 292, 295 (D.C.
Cir. 1992).
Analysis
Hawkins has already obtained most of the remedies she
sought in her complaint. DCPS is funding D.C.’s education at
- 4 - High Road, and it convened a new MDT meeting and developed a new
IEP to which she consents.3 As a result, her many allegations of
procedural error can no longer support relief. IDEA claims based
on procedural error are “viable only if those procedural
violations affected the student's substantive rights.” Lesesne
v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006); see
also M.M. v. Sch. Dist., 303 F.3d 523, 534 (4th Cir. 2002) (“If a
disabled child received (or was offered) a FAPE in spite of a
technical violation of the IDEA, the school district has
fulfilled its statutory obligations.”). “[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.” B.M. v. Bd. of Educ., 128 F. App’x 876,
881 (3d Cir. 2005); see also 20 U.S.C. § 1415(f)(3)(E)(ii).
Hawkins has not alleged, much less proven, that D.C.
has suffered any educational harm from DCPS’s actions. Nor has
her right to participation in determining her son’s educational
process been harmed. D.C. is now attending the very school she
desired for him, which is more control than parents are normally
afforded under IDEA. Cf. A.W. v. Fairfax County Sch. Bd., 372
F.3d 674, 683 n.10 (4th Cir. 2004) (“[T]he right conferred by the
3 The only significant relief that Hawkins has not received is attorneys’ fees.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KISHA HAWKINS, : : Plaintiff, : : v. : Civil Action No. 09-0491 (JR) : DISTRICT OF COLUMBIA, : : Defendant. :
MEMORANDUM
Kisha Hawkins seeks review of an independent hearing
officer’s decision that her seven-year-old son, D.C., is not
entitled to relief pursuant to the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The parties
have filed cross-motions for summary judgment. For the reasons
that follow, the defendant’s motion will be granted.
Background
Despite D.C.’s young age, the dispute over his
education between Hawkins and the District of Columbia Public
Schools (“DCPS”) has a long history. See Hawkins v. District of
Columbia, 539 F. Supp. 2d 108, 110-12 (D.D.C. 2008). On March 7,
2008, Judge Bates held that DCPS had failed to provide D.C. with
a free appropriate public education (“FAPE”) as required by IDEA,
and he ordered DCPS to convene a multi-disciplinary team (“MDT”)
meeting to determine D.C.’s eligibility for special educational
services. See id. at 116. On May 20, 2008, DCPS convened the
MDT meeting, which reached a preliminary determination that D.C. is eligible for educational services. A.R. 83-85. Hawkins
listened to the meeting by telephone. Id. at 83.
This period of relatively smooth relations between the
parties ended quickly. DCPS convened a second meeting on
June 10, 2008, at which it developed a draft Individualized
Education Program (“IEP”) for D.C.1 Id. at 94-102. Hawkins did
not attend, and the parties dispute whether DCPS gave her
adequate notice and scheduling options.2 Id. at 95. Three days
after the meeting, DCPS mailed the draft IEP to Hawkins’ counsel,
but it never received a response. A.R. Tr. 37-38, 59-60.
Although D.C. had attended Turner Elementary during the
previous school year, he did not initially attend any school from
September to November 2008. Id. at 48-49. Hawkins contends that
DCPS failed to designate a school for D.C. for the new school
year, while DCPS contends that she was at fault for failing to
enroll her son at Turner Elementary. DCPS sent correspondence to
Hawkins and her counsel on September 2, 2008, in an attempt to
schedule a meeting to develop a final IEP. Id. at 49-51. DCPS
also sent social workers to Hawkins’ home to determine why her
son was not in school. Id. While Hawkins met with a social
1 Hawkins objects to labeling the result of the June meeting an “IEP” because she contends it was not properly prepared. 2 Additionally, DCPS denies receiving a fax sent by Hawkins’ counsel on June 6 rejecting the June 10 meeting date and offering three alternative dates. A.R. 86-87; A.R. Tr. 36, 39-40.
- 2 - worker who visited, see St. of Kish Hawkins, attached to Pl.
Reply at Ex. 4, she did not make any additional efforts to
contact DCPS or to bring D.C. to school. However, on October 14,
2008, her counsel sent DCPS a request to hold another MDT meeting
and develop a final IEP. A.R. 88. DCPS did not responded to the
request.
On November 3, 2008, Hawkins filed a due process
complaint alleging, inter alia, that DCPS had failed to develop
an IEP or select a proper school for D.C. Id. at 9-13. On
November 20, 2008, Hawkins unilaterally enrolled her son in High
Road Primary School, a private school in Washington D.C. designed
to cater to special needs students. A.R. Tr. 26-27. On
December 9, 2008, the hearing officer held that Hawkins had
failed to meet her burden and dismissed her petition. A.R. 1-5.
On March 13, 2009, Hawkins filed this action, seeking review of
the hearing officer’s determination and demanding as relief,
inter alia, that DCPS fund D.C.’s attendance at High Road.
Sometime soon thereafter, DCPS agreed to fund D.C.’s
attendance at High Road, retroactive to his enrollment. See St.
of Sandra Booz, attached to Pl. Mot. at Ex. 2. Subsequently, on
April 22, 2009, the MDT developed a new IEP for D.C. See IEP,
attached to Pl. Mot. at Ex. 1. Hawkins signed the IEP,
indicating her assent to its terms. Id.
- 3 - Despite the apparent satisfaction of both parties,
litigation has continued. Hawkins moves for summary judgment,
alleging DCPS erred in various respects during the period from
May to November of 2008. DCPS cross-moves for summary judgment,
arguing, inter alia, that Hawkins has failed to meet the
statute’s requirements that she show substantive harm in
conjunction with the alleged procedural errors.
Standard of Review
In reviewing an IDEA due process hearing, a district
court must determine whether a plaintiff is entitled to judgment
based on a preponderance of the evidence. See 20 U.S.C.
§ 1415(i)(2)(C)(iii). When neither party requests that the court
hear additional evidence before ruling on a motion for summary
judgment, the motion is to be construed as a “procedural vehicle
for asking [a] judge to decide the case on the basis of the
administrative record.” Herbin v. District of Columbia, 362 F.
Supp. 2d 254, 258 (D.D.C. 2005) (internal quotations and citation
omitted). The party challenging the hearing officer’s
determination bears the burden of convincing the court that it
was incorrect. See Angevine v. Smith, 959 F.2d 292, 295 (D.C.
Cir. 1992).
Analysis
Hawkins has already obtained most of the remedies she
sought in her complaint. DCPS is funding D.C.’s education at
- 4 - High Road, and it convened a new MDT meeting and developed a new
IEP to which she consents.3 As a result, her many allegations of
procedural error can no longer support relief. IDEA claims based
on procedural error are “viable only if those procedural
violations affected the student's substantive rights.” Lesesne
v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006); see
also M.M. v. Sch. Dist., 303 F.3d 523, 534 (4th Cir. 2002) (“If a
disabled child received (or was offered) a FAPE in spite of a
technical violation of the IDEA, the school district has
fulfilled its statutory obligations.”). “[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.” B.M. v. Bd. of Educ., 128 F. App’x 876,
881 (3d Cir. 2005); see also 20 U.S.C. § 1415(f)(3)(E)(ii).
Hawkins has not alleged, much less proven, that D.C.
has suffered any educational harm from DCPS’s actions. Nor has
her right to participation in determining her son’s educational
process been harmed. D.C. is now attending the very school she
desired for him, which is more control than parents are normally
afforded under IDEA. Cf. A.W. v. Fairfax County Sch. Bd., 372
F.3d 674, 683 n.10 (4th Cir. 2004) (“[T]he right conferred by the
3 The only significant relief that Hawkins has not received is attorneys’ fees. She has not shown, however, or even argued, that she is a “prevailing party” within the meaning of 20 U.S.C. § 1415(i)(3)(B)(i).
- 5 - IDEA on parents to participate in the formulation of their
child’s IEP does not constitute a veto power over the IEP team’s
decisions.”). Moreover, while there is fault with both parties
in their poor relations between May and November 2008, I cannot
disagree with the hearing officer’s conclusion that “[t]he
preponderance of the evidence simply does not support the
allegation that DCPS was primarily responsible for the failure to
develop an IEP and to determine a placement for [D.C.] for the
2008-2009 school year.” A.R. 5. The record shows that Hawkins
was unresponsive to DCPS’s efforts to reach her for long periods
of time, while her attempts at communication were relatively
sporadic.
Although Hawkins describes her attacks on the adequacy
of the May 2008 MDT meeting and the resulting IEP as substantive
rather than procedural, her characterization is not convincing.
Plaintiff is correct to note that IEPs are “the centerpiece of
the statute’s education delivery system for disabled children.”
Honig v. Doe, 484 U.S. 305, 311 (1988). Important and
substantive are not synonyms, however. IDEA’s substance protects
disabled children’s access to education. The proper development
of an IEP is a process to achieve that end. See 20 U.S.C.
§ 1415(f)(3)(E)(i) (in evaluating claims of substantive IDEA
violations, “a decision made by a hearing officer shall be . . .
based on a determination of whether the child received a free
- 6 - appropriate public education”). Hawkins’ burden is to show some
harm the alleged inadequacies of the May 2008 IEP caused her son,
and she has not done so.
Conclusion
D.C. is at a school that all deem appropriate for his
special educational needs. He has apparently suffered no
academic harm from the dispute between his mother and DCPS.
Therefore, Hawkins’ claims cannot survive IDEA’s requirement that
she couple the alleged procedural violations with substantive
harm.
JAMES ROBERTSON United States District Judge
- 7 -