                   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
                                 -2-

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)).
                                 -3-

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.)
                                  -4-

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
                                 -5-

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.)
                               -6-

     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
                                -7-

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
                                  -8-

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
                                -9-

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
                              -10-

(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 . . . .

                             * * *
                               -11-

     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
                               -12-

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
                                -13-

“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.
                               -14-

     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


     4
       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
                              -15-

                           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.
