                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


HUNG HANH THI NGUYEN,              :
                                   :
           Plaintiff,              :
                                   :
     v.                            : Civil Action No. 09-0189 (JR)
                                   :
DISTRICT OF COLUMBIA, et al.,      :
                                   :
           Defendants.             :

                              MEMORANDUM

           Hung Hanh Thi Nguyen seeks review of an independent

hearing officer’s decision that her son, H.N., is not disabled

within the meaning of 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 defendants’ motion will be granted.

                              Background

           H.N., who is seventeen years old, experienced

significant turbulence in the period leading up to the

independent officer’s hearing.    On February 28, 2008, he entered

a plea to a charge of simple assault for striking his brother.

A.R. 99.   He admitted to smoking up to five marijuana joints

daily, and he was suspended for a period of time for drug

possession on school grounds.    Id. at 146.   He also had been

suspended from school on four other occasions for various

reasons.   Id.   Even when not suspended, he often failed to attend
class.   Id.   He had been held back a grade in school due to his

poor performance.    Id.

            At the due process hearing, conducted on October 21 and

29, 2008, Nguyen suggested that H.N. suffered from an emotional

disturbance and a specific learning disability, either of which

would qualify him as disabled within the meaning of IDEA and

therefore eligible for its benefits.      See 20 U.S.C. § 1401(3).

The officer held that Nguyen failed to meet her burden.         A.R. 3-

10.   She now seeks judicial review of that decision.      See 20

U.S.C. § 1415(i)(2) (authorizing such review).

                           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).    Judicial review under IDEA is more rigorous than


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conventional agency review.   See Reid v. District of Columbia,

401 F.3d 516, 521 (D.C. Cir. 2005).      However, the preponderance

of the evidence standard “is by no means an invitation to the

courts to substitute their own notions of sound educational

policy for those of the school authorities which they review.”

Bd. of Ed. v. Rowley, 458 U.S. 176, 206 (1982).      Thus, I must

conduct an independent review of the evidence, but in so doing I

must give “due weight” to the administrative proceedings.      Id.

                              Analysis

          A. Emotional Disturbance

          To establish that a student suffers from an emotional

disturbance within the meaning of IDEA, the student first must be

shown to have exhibited one of five symptoms:

        (A) An inability to learn that cannot be
        explained by intellectual, sensory, or health
        factors;
        (B) An inability to build or maintain
        satisfactory interpersonal relationships with
        peers and teachers;
        (C) Inappropriate types of behavior or feelings
        under normal circumstances;
        (D) A general pervasive mood of unhappiness or
        depression;
        (E) A tendency to develop physical symptoms or
        fears associated with personal or school
        problems.

34 C.F.R. § 300.8(c)(4)(i).   Additionally, the student must be

shown to have exhibited the symptom “over a long period of time”

and “to a marked degree” such that the child’s educational

performance is adversely affected.     Id.   The emotional


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disturbance classification “does not apply to children who are

socially maladjusted, unless it is determined that they have an

emotional disturbance” as defined above.     Id. § 300.8(c)(4)(ii).

          The hearing officer was presented with evidence that

H.N. suffered from depression and a mood disorder.     See A.R. 5-8.

However, the officer held that he did not suffer an emotional

disturbance within the meaning of IDEA because “[t]he record is,

at best, inconclusive that [H.N.’s] emotional problems adversely

affect his educational performance.”    Id. at 9.   Instead, the

officer found that “[t]he factor most affecting [his] educational

performance is his non-attendance.”    Id.   The officer further

stated that “[n]o credible evidence was advanced that [his]

truancy is caused by an emotional disability.”      Id.; see also id.

(noting that H.N. demonstrated a “pattern of avoiding

responsibilities” in non-school contexts).

          Nguyen disputes the hearing officer’s conclusion.     She

argues the officer failed to mention, and thus ignored, testimony

from several witnesses favorable to her.     See Mot. 13-17.   She

argues that the testimony of these witnesses shows that H.N.’s

behavioral problems, including his truancy, stem from his

depression.

          Untangling cause and effect in the context of drug use,

misbehavior, and depression can be difficult.     However, I cannot

find that plaintiff has sustained her burden to show that the


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officer’s conclusion is incorrect.     Much of the testimony

plaintiff cites in her effort to establish a causal link between

H.N.’s behavioral problems and emotional disturbance is

speculative.   See, e.g., Tuoy testimony, A.R. Tr. 10/21/08 at 28

(“His behavior was out of control, so his depression could be

affecting his ability to go to school.”); Harmon testimony, Id.

at 187 (“[He] has a difficult time waking up in the mornings,

sleeps excessively which is the classic syndrome of depression.

And I could — that seems to be contributing to his truancy.”);

Haddad testimony, A.R. Tr. 10/29/08 at 71 (“Yes, he’s depressed.

Yes, that might be a reason why he doesn’t want to be in our

school, but it is not atypical of many students in our

school . . . .”).   In contrast, the link between failure to

attend school and failure to succeed academically is far more

clear; H.N. himself admits his poor attendance and drug use

negatively impacted his academic performance.     See A.R. 146l; cf.

N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11, 12-13 (2d Cir.

2008) (finding that parents failed to meet their burden to show

student’s declining academic performance stemmed from emotional

disturbance instead of drug use).

          B.   Specific Learning Disability

          A student has a specific learning disability under IDEA

if he or she has “a disorder in 1 or more of the basic

psychological processes involved in understanding or in using


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language, spoken or written, which disorder may manifest itself

in the imperfect ability to listen, think, speak, read, write,

spell, or do mathematical calculations.”   20 U.S.C. § 1401(30).

Under regulations pursuant to IDEA, a specific learning

disability may be found if a child “does not achieve adequately

for the child's age” in basic language or mathematics skills or

if the child fails “to meet age or State-approved grade-level

standards” in such skills.   34 C.F.R. § 300.309(a).   In forming a

determination, a school district should “[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.”   Id.

§ 300.306(c)(i).

          Dr. Donnelly, who evaluated H.N., diagnosed him with a

general learning disorder.   See A.R. 9; see also Booker

testimony, A.R. Tr. 10/21/08 at 49-50 (also suggesting H.N. has a

learning disability).   However, the hearing officer found that

H.N.’s test scores showed that any disorder he suffered was not

sufficiently pronounced for him to meet the statutory criteria.

See A.R. 9.   In testing performed by Dr. Donnelly, H.N.’s

achievement scores exceeded his aptitude scores in all but two

areas, and in those two remaining areas the difference was small.

See id.   Small differences between achievement scores and


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intelligence scores are insufficient to support classification as

having specific learning disability.      See Kruvant v. District of

Columbia, 99 F. App’x 232, 233 (D.C. Cir. 2004).     Moreover, one

of H.N.’s teachers described him as “very bright.”     A.R. 161

(noting few other teachers had significant contact with H.N.).

Dr. Booker suggested that H.N.’s “scattered skills” are at least

partially caused by his poor attendance.     See Booker testimony,

A.R. 10/21/08 Tr. at 117-18.      While there is some evidence that

H.N. suffers from a learning disability, I cannot say that Nguyen

has met her burden.   The evidence is weak that H.N. has “a severe

discrepancy between achievement and intellectual ability,” and

failures in achievement are likely at least partially driven by

poor attendance.

           C. Procedural Errors

           Nguyen alleges that the hearing officer committed a

number of procedural errors.      First, she alleges that the hearing

officer failed to perform a “fact-specific inquiry.”     This

contention is plainly meritless, as the record shows the hearing

officer reviewed and considered an extensive record.     See A.R. 3-

10.   Second, Nguyen alleges that the hearing officer erred by

failing to grant a continuance to allow Dr. Donnelly to present

live testimony and by refusing to qualify a social worker offered

by plaintiff.   Plaintiff has failed to show any prejudice that

resulted from these procedural decisions, however.     See Lesesne


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v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006) (IDEA

claim based on procedural error “is viable only if those

procedural violations affected the student's substantive

rights”).

                             Conclusion

            For the reasons set forth above, Nguyen’s motion for

summary judgment will be denied and the District of Columbia’s

motion for summary judgment will be granted.    An appropriate

order accompanies this memorandum.




                                      JAMES ROBERTSON
                                United States District Judge




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