d.l. v. district of columbia
D.D.C., Civ. No. 05-1437
In 2005, the firm brought the case of D.L. v. District of Columbia in the U.S. District Court for the District of Columbia. This is a class action related to the District of Columbia’s failure to provide, and failure to timely provide, special education and related services to three-to-five-year-old children in violation of the Individuals with Disabilities Education Act (IDEA), the Rehabilitation Act, and District law.
As stated by the district court, “This case concerns the District of Columbia’s obligations, under both federal and local law, to provide special education to some of our most vulnerable citizens at a very early and critical stage in their lives. In the first few years of a child’s life, there exists a narrow window of opportunity in which special education, tailored to the child’s particular needs, can work a miracle. ‘[S]omewhere in the neighborhood of 75 to 80 percent’ of the disabled children who are found in the community and served by quality early intervention programs will go on to kindergarten alongside every other ordinary five-year-old—without needing further supplemental special education. * * * So that’s what’s at stake here.”
There is a long history to this case. In short, in 2010 and 2011, the district court found the District of Columbia liable for violating the IDEA, the Rehabilitation Act, and District law, and in 2011, the district court also issued an injunction requiring substantial improvements. In 2013, the court of appeals reversed based on class certification issues relating to the then-recent Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes.
On remand from the court of appeals, the district court certified four subclasses, which include pre-school-aged children with disabilities in the District who (1) were not or will not be identified and/or located for the purposes of offering special education and related services; (2) did not or will not receive an initial evaluation within 120 days of the date of referral for the purposes of offering special education and related services; (3) did not or will not receive a determination of eligibility within 120 days of the date of referral for special education and related services; and (4) did not or will not have a “smooth and effective” transition from Part C services (early intervention services for children up to three years of age) to Part B services (special education and related services for children ages three and older) by the child’s third birthday.
After a second round of discovery, in 2014, the district court concluded again that the District of Columbia violated the IDEA and District law up to April 6, 2011, by failing to identify children with disabilities, timely evaluate them, timely issue eligibility determinations, and smoothly and effectively transition them from Part C services to Part B services at age 3. It dismissed plaintiffs’ claim for the failure to timely evaluate children for the period from April 6, 2011, on and plaintiffs’ Rehabilitation Act claims, for the period from March 22, 2010, on.
The court held a trial in November 2015 on the remaining claims under the IDEA, the Rehabilitation Act, and District law. On May 18, 2016, the district court found the District of Columbia liable for violating the children’s rights and issued an injunction. The district court enjoined the District of Columbia from further violations of the IDEA and District law, and ordered specific corrective actions, including that the District ensure that (1) at least 8.5 percent of children between the ages of three and five who reside in the District or are wards of the District receive necessary special education and related services, (2) at least 95 percent of all children between the ages of three and five referred for special education services receive a timely eligibility determination, and (3) at least 95 percent of all children receiving Part C services that are found eligible for Part B services receive a smooth and effective transition to those Part B services by their third birthdays.
The injunction also includes specific provisions related to the measurement and monitoring of compliance. Specifically, the District of Columbia was ordered to correct several metrics that it uses to measure compliance with these benchmarks, which had made it appear that it was performing much better than it actually was.
The District of Columbia is required to provide annual reports on its compliance with the numerical benchmarks and semi-annual reports regarding compliance with other programmatic requirements. The injunction will remain in effect until the District has demonstrated sustained compliance with its requirements.
The district court wrote that “The District’s lack of effective Child Find and transition policies is particularly troubling in light of the intense scrutiny and seemingly constant admonishment it has received over the last decade. In 2011, this Court stated, ‘Defendant’s persistent failure to live up to their statutory obligations, a failure that works a severe and lasting harm on one of society’s most vulnerable populations—disabled preschool children—is deeply troubling to this Court.’ * * * Moreover, as discussed, OSEP [the U.S. Department of Education Office of Special Education Programs] informed OSSE [the District of Columbia Office of the State Superintendent of Education] in 2015 that it ‘needs intervention in implementing the requirements of Part B of the IDEA’ for the ‘ninth consecutive year,’ which is the longest period in the country. * * * Although OSEP’s long-running ‘needs intervention’ determination does not deal exclusively with the statutory obligations at issue in this litigation, it contributes to the overarching narrative that the District requires strong, outside involvement to produce even minimally acceptable results. And critically, this litigation has been ongoing for more than ten years, providing the District with ample time and robust incentives to come into full compliance with the law. It is for these reasons that a structural injunction is necessary.”
The district court concluded by stating that “The District has come a long way since 2005 when this lawsuit was initiated, but it has not come far enough. Indeed, while its progress has been in some ways impressive, the District started at such a low base that the advances it has made are insufficient to bring it into compliance with its legal obligations. The Court today makes clear that the implementation and outcomes of the District’s policies are paramount. The District will comply with its statutory obligations when it actually locates and identifies children to provide them with a FAPE [free appropriate public education], timely evaluates them, timely determines their eligibility, and smoothly and effectively transitions them—not when they establish policies that, if properly implemented, would achieve these goals. If the defendants fail to abide by the order and adopt a more outcome-based approach, the District will earn far more significant court involvement and oversight than is ordered today.”
The District appealed the injunction. The court of appeals rejected all of the District’s arguments. Addressing the District’s argument that the IDEA precludes comprehensive injunctions and allows only for relief on an individual child basis, the court of appeals stated that “the District’s argument would eviscerate the very purpose of IDEA.” Congress enacted the IDEA in response to the “pervasive and tragic” failure to serve all children with disabilities. In exchange for federal funding, the IDEA imposes on states, including the District, the obligation of identifying and evaluating all preschoolers with disabilities. The court of appeals found that although the District had “enthusiastically accepted millions of dollars in IDEA funding,” it was now proposing to shift back to parents the burden of determining whether a child was eligible for special education services. The court of appeals stated: “Given the purpose of IDEA, we cannot imagine a more preposterous argument.”
Plaintiffs are monitoring the District’s program to ensure that it provides the level of attention and resources necessary to comply with the injunction and bring about the improvements needed to ensure that special education services are timely delivered to all preschoolers with disabilities. On October 12, 2017, plaintiffs’ counsel sent the District a detailed letter regarding their continued concerns regarding the District’s progress in complying with the injunction.
Class counsel stand ready to assist and advise advocates, parents, and guardians in using the D.L.injunction to advocate for children with special education needs. Linked here is a notice that may be helpful to better understand the impacts that the D.L. injunction has had on special education deadlines relevant to individual children.
If you have any questions about the case, please call Todd Gluckman at 202-204-8482.