                     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.

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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.




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            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


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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




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