Free Letter - District Court of Delaware - Delaware

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Case 1 :07-cv—00668-LPS Document 31 Filed 08/19/2008 Page 1 ot 4
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DEPARTEIQEPQ JUSTICE carunuiakznénpgpig gaaazia E
JOSEPH R- B!DEN. ill 102 WESTWATER STREET CNILiD,iii|?iiii`i izgiiigg`?641 l
ATTORNEY GENERAL DOVER, DE 19904 rmauz) 739-1545
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August 19, 2008
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Civil Division/Sussex County (302) 856-5353
The Honorable Leonard P. Stark
U.S. District Court for
the District Court of Delaware Q
844 N. King Street g
Wilmington, DE 19801
RE: MA. v. Indian River School Di.s·n·icz§ et ol.
- C.A. No. 07-668-LPS
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Dear Magistrate Stark:
I represent the Delaware Department of Education ("the Department") in connection with the
above matter. On August 14, 2008, I received a copy ofthe Parent’s Motion to Compel the Department §
to produce records ofthe Family Court. As the Court is aware, the Department is not a party to the
litigation, but the custodian ofthe administrative record created before a special education due process
panel. The Court has scheduled a teleconference on August 21, 2008 at 2:00 p.n1. for the purpose of
discussing Parent’s Motion to Compel.
I ain responsible for representing the State Board of Education on August 21st at its public
meeting held in Dover at 1:00 p.m. I will, however, step out of the meeting to participate in the J'
__ teleconference with the Court. In the meantime, this letter responds to Parent’s Motion to Compei.
A. The Departments Role in Providing the Due Process Hearing System to Address Disputes
Involving Special Education.
In Delaware, the Department is responsible for establishing and maintaining procedures to
ensu1·e that children with disabilities and their parents are guaranteed procedural safeguards with Q
respect to the provision of a free appropriate public education by public school districts. 20 U.S.C.§ ‘
1415(a); 14 Del. C. § 3130 et seq. "Such. procedural safeguards include the irnplernentation of a due
process hearing system to permit parents of children with disabilities to submit complaints concerning
the quality of their chiid’s education. 20 U.S.C. § l4l5(b)(7). The Department maintains and
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I Reference is made generally to "Parent" to maintain her confidentiality.
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Case 1 :07-cv—00668-LPS Document 31 Filed 08/19/2008 Page 2 ot 4
The Honorable Leonard P. Stark
August 19, 2008 i
RE: MA. v. Indian River School District; et al. i
implements the due process hearing system as a mechanism to address such complaints. See, 14 Del.
C § 3130 et seq.; 14 DE Admin Code §§ 926.7.0 through 18.0. §
A due process hearing is initiated by the Bling of a due process complaint setting forth a
- description of the dispute. 14 Del. C. § 3135; l4 DE Admin Code § 926.11.0. Upon receipt of a g
— complaint, the Secretary of Education appoints a three member panel consisting of a Delaware §
attorney, an educator knowledgeable in the Beld of special education, and a lay person with a
demonstrated interest in the education of children with disabilities. 14 Del. C. § 3137(d); 14 DE Admin
Code § 926.11.2. .
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Throughout the hearing process, the parties are afforded various rights, including the right to
present evidence and conliont and cross-examine witnesses. 14 Del. C. § 3138; 14 DE Admin Code § E
_ 926.12.0. Once the hearing is concluded, the panel is responsible for issuing a written decision i
containing findings of fact and conclusions of law. 14 Del. C. § 3l38(a)(6); 14 DE Admin Code §
12.1.5. ,
Any party aggrieved by the panel’s decision has the right to initiate a civil action seeking
judicial review of the decision in the U.S. District Court or the Family Court ofthe State of Delaware.
20 U.S.C. § 1415(i)(2)(A); 14 Del. C. § 3142; 14 DE Admin Code § 926.16.1. When judicial review is
sought, the Secretary of Education must certify and Ble with the court the record of the administrative
hearing, including all documents submitted, a transcript of the testimony, and the decision of the ·
hearing panel. 14 Del. C. § 3142(b). The court must receive the record of the administrative
proceedings, hear additional evidence at the request of a party, and basing its decision on a
preponderance of the evidence, grant such relief as the court deems appropriate. 20 U.S.C. § g
141 5(i)(1)(C); 34 C.F.R. § 300.516.
B. The 2005 and 2007 Due Process Hearings Involving Parent. n
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On or about September 1, 2004, Parent Bled a due process complaint with the Department
against the Indian River School District (“the Dist1·ict") alleging violations of the Individuals With
Disabilities Education Act (“lDEA") with respect to her daughter’s education. The Department é
appointed a three member panel and a due process hearing was conducted over the course of Bve days.
Each party submitted documents into evidence and presented witnesses on their behalf. On June 30,
2005, the panel issued a written decision in the District’s favor finding no violation of the IDEA or
state law ("the Brst panel decision"),
Parent then Bled a civil action appealing the Brst panel decision to the Family Court. In i
accordance with 14 Del. C. § 3142, the Department Bled the record of the Brst administrative hearing
(DE DP 05-2) with the Family Court. ·
On or about January 19, 2007, the Family Court issued a decision rernanding the case to a due Q
. process panel in order to resolve three issues. Specifically, the court directed the panel to determine:
(1) whether the District timely iclentiiied Parent’s daughter as a child with a disability and timely
provided her with an IEP; (2) whether the IEP was reasonably calculated to provide Parent’s daughter
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Case 1 :07-cv—00668-LPS Document 31 Filed 08/19/2008 Page 3 ot 4
The Honorable Leonard P. Stark i
August 19, 2008
RE: MA. v. Indian River School District, et ol. i
with a free appropriate public education; and (3) if the District failed to satisfy either obligation, what 1
is the appropriate remedy. g
In response, the Department appointed the same due process panel to decide the three issues l
identified by the Family Court. Before the hearing, the panel addressed what evidence the panel I
needed to hear. During the first hearing, the panel did not receive evidence on the issue of whether the
District failed to timely identify the child in need of special education. Therefore, the panel determined g
it was appropriate to receive additional evidence on that issue. The panel determined it would review §
the record from the Erst hearing to determine the appropriateness of the IEP. The panel further
permitted both parties to provide evidence on the proposed remedy and its appropriateness.
The second due process hearing (DE DP 07-20) was held over the course of three days. Both
parties submitted documents into evidence and presented additional testimony from witnesses. On
August 1, 2007, the panel issued a written decision finding the District failed to timely identity
Parent’s daughter as a child with a disability, but the IEP developed by the District was reasonably
calculated to provide her with meaningful educational benefit ("the second panel decision").
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Parent now seeks judicial review of the second panel decision in the District Court.
CL The Content ofthe Administrative Record Filed with the Court.
By Order of June 3, 2008, the Court directed the Department to tile the record of the
administrative proceedings under seal. The Department tiled the record on July 10, 2008 and provided
the District and Parent with a courtesy copy.
The administrative record tiled by the Department includes the record of both due process
hearings (i.e., DE DP 05-2 and DE DP 07-20) conducted by the administrative panel. The record
includes all exhibits admitted into evidence by the parties, transcripts of the hearing, correspondence to g
and from the panel, the closing arguments of the parties, the pane1’s June 30, 2005 decision, and the l
panel’s August 1, 2007 decision.
D. Parent ’s Motion to Compel.
Parent’s Motion to Compel requests the Court to order the Department to produce the Family
Court’s January 19, 2007 decision and "all withheld documents" related to the Family Court’s frle.
Parent also argues the Family Court’s January 19m decision serves as the due process complaint and
must be part of the administrative record.
The Department does not maintain, nor does it have access to, the records of the Family Court.
The Department is not a custodian of the Family Court’s tile as it relates to the Family Court’s January
19, 2007 decision. While the Family Court decision may have relevance to Parent’s claims in her §
litigation in the District Court, the Family Court decision is not part of the administrative record §
created before the Department. Nor does it amount to a due process complaint under the IDEA.
Rather, a due process complaint is speciiically tiled by a parent or public agency alleging a violation of —
the IDEA or state law with respect to the provision of special education services. 14 Del. C. § 3135; E
14 DE Admin Code § 926.11.0. Further, Parent has access to the Family Court’s January 19, 2007 E
.

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Case 1 :07-cv—00668-LPS Document 31 Filed 08/19/2008 Page 4 of 4
The Honorable Leonard P. Stark
August 19, 2008
RE: MA. v. Indian River School Distric; et ol.
decision because she attached it to her Motion to Compel. To the extent Parent claims the Department
should produce “all withheld documents", the Department is not clear what documents Parent is E
referring to.
The Department believes it has complied with its responsibility to tile the record of the E
administrative proceedings with the Court. Thank you for your courtesy and consideration.
Respectfully,

/s/ Jennifer L. Kline E
Deputy Attorney General E
- Bar ID No. 4075
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l cc: Peter Dalleo, Clerk of Court
Mr. and Mrs. William Anello
James McMackin, Esquire
The Honorable Valerie A. Woodruff
Ms. Martha Toomey, Department of Education
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