MORRISON C. ENGLAND, Jr., District Judge.
Through the present lawsuit, Plaintiff Concepcion Varela ("Plaintiff"), as parent and guardian ad litem for her minor son, A.V., challenges various actions taken by Defendant Panama-Buena Vista School District ("District") with respect to A.V.'s educational placement. Plaintiff has already pursued two special education "due process" proceedings in accordance with the provisions of the Individuals with Disabilities Education Act., 20 U.S.C. § 1400, et seq. ("IDEA") to rectify what she alleges were unlawful steps taken by the District against her son. She now appeals adverse decisions rendered by the Office of Administrative Hearings ("OAH") following those hearings and, in addition to IDEA violations, also claims violations of § 504 of the Rehabilitation Act of 1973, 29 U.SC. § 701 et seq. ("Section 504") as well as discrimination on the basis of disability and national origin.
Presently before the Court is Plaintiff's Motion for Preliminary Injunction. That Motion seeks a mandatory injunction vacating the District's expulsion of A.V. and reinstating A.V. into the District's public school program, along with appropriate IDEA modifications and/or accommodations. For the reasons set forth below, Plaintiff's Motion is DENIED.
Plaintiff enrolled A.V. at the District's Stonecreek Junior High School prior to the first day of the 2014-15 term. A.V. was twelve years old at the time. On August 18, 2015, the first day of school, Plaintiff provided the District with a copy of A.V.'s most recent Section 504 plan along with a behavior support plan from the Bakersfield City School District where A.V. had previously attended school. Plaintiff claims she told the District that A.V. had a medical diagnosis of Attention Deficit Hyperactivity Disorder ("ADHD").
A.V. had previously received speech and language assistance from the District in 2007 as a child with speech and language impairment qualifying for services under the IDEA. In 2008, however, the District lawfully exited A.V. from the special education program because it determined that A.V. had met his goals and consequently no longer needed IDEA services. Plaintiff consented to that exit. Clark Decl, ECF No. 53, ¶¶ 5-6.
A.V. began to have behavioral incidents at school soon after returning to the District. On August 21, 2015, just three days after classes commenced, he was referred to the office for provoking a fight with another student and being combative. Thereafter, on August 27, 2014, A.V. allegedly threatened to injure another student and is also purported to have bullied, intentionally harassed and intimidated a group of students. This caused the District to suspend A.V. two days. On that same day the District held a Section 504 team meeting and developed a Section 504 Accommodation Plan for A.V. Plaintiff attended the meeting with the assistance of a Spanish interpreter provided by the District and accompanied by an educational advocate. At that time, the District believed that A.V.'s behaviors could be addressed through accommodations in his Section 504 plan, and Plaintiff consented to the District's proposals in that regard.
On September 11, 2014, after the District intervention counselor observed A.V. grabbing a female student's buttocks, A.V. was suspended for an additional three days, and the District scheduled a Section 504 Manifestation Determination Meeting for September 18, 2014.
A.V. began attending Thompson the following day, September 19, 2014. On September 22, 2014, school psychologist Brittany Gentry generated a Consent for Assessment of A.V.'s special education eligibility that included both a functional behavioral assessment and an evaluation of any emotional disturbance and specific learning disability. Ms. Gentry made that decision both because of Plaintiff's concerns and because she believed A.V.'s numerous defiant and inappropriate behaviors made such an evaluation appropriate. According to the District, it mailed the Consent for Assessment to Plaintiff at her address of record and that mailing was not returned. The initial Consent form was generated in English because that was the language Plaintiff had used in her written letter requesting a special education evaluation.
Nonetheless, in a subsequent Section 504 amendment meeting on October 7, 2014, which Plaintiff attended, District Special Education Assistant Director Janet Clark claims she provided Plaintiff with, and reviewed, a Spanish language version of the September 22, 2014 assessment. Ms. Clark and school psychologist Matt Harper told Plaintiff why the District wanted to perform an assessment, explaining that an evaluation was needed before determining what additional supports and services A.V. might need. When Ms. Clark asked Plaintiff to sign the Consent, she states that Plaintiff declined on grounds that she wanted to discuss the document with her husband. On October 15, 2014, after having not received the Consent back, another Spanish version was sent which, like the earlier English version mailed on September 22, 2014, was apparently never received back as undeliverable.
On November 19, 2014, after A.V. continued to engage in inappropriate behaviors, the District held yet another Section 504 Manifestation Determination team meeting at which time Ms. Clark claims she provided another Spanish version of the Consent form, in the presence of Plaintiff's Spanish-speaking educational advocate and with the assistance of a Spanish interpreter. Plaintiff declined to sign, and according to the OAH's November 22, 2014 decision, Plaintiff denied at the due process hearing that she ever received it. Although the District claims that it followed up by sending additional copies by mail on November 22, 2014, December 2, 2014, and December 4, 2014, Plaintiff again denied receiving any of the forms. The OAH hearing officer found this testimony not to be credible, particularly in the face of numerous District witnesses who "consistently and credibly" testified that she had been given the Consent forms directly at various Section 504 meetings with the forms explained through an interpreter, as well as District testimony that it had mailed copies of the documents in both English and Spanish to Plaintiff's address of record on at least four different occasions without receiving them back as undeliverable.
At the time of the November 14, 2014, meeting, the Section 504 team determined that A.V's behavior, which had allegedly included,
On November 21, 2014, Plaintiff filed an expedited due process complaint
On September 7, 2015, Plaintiff filed an appeal of the OAH hearing dated January 23, 2015, as well as an earlier decision by the hearing officer imposing sanctions on Plaintiff's counsel issued on December 10, 2014. According to Plaintiff's counsel, she had to file the appeal to protect her rights with respect to those decisions even though the related non-expedited portion of her claims had not yet been resolved.
A hearing on the non-expedited claims, which included claims that Plaintiff failed to timely assess A.V. in all areas of suspected need for special education placements, as well as claims that the District had deprived Plaintiff of the opportunity to meaningfully participate in Plaintiff's IDEA program by failing to translate disciplinary documents into Spanish, took place over the course of three days between April 15, 2015 and April 17, 2015.
The hearing officer rendered her decision on Plaintiff's non-expedited claims on June 11, 2015. That decision was in Plaintiff's favor to the extent the hearing officer concluded that the District had sufficient information between August 18, 2014, and October 6, 2014, to trigger its duty to assess A.V. for special education eligibility. Even though A.V. did not begin classes until August 18, 2014, the hearing officer opined that because Plaintiff had told District personnel that A.V. had previously been expelled from Bakersfield City School District for sexual battery, and because Plaintiff's aggressive and defiant behaviors manifested almost immediately, a duty to assess was triggered from the onset. Moreover, because the District did not provide a copy of the Consent form to Plaintiff in Spanish until October 7, 2014, its failure to properly assess continued until the preceding day. Nonetheless, given Plaintiff's repeated failure to return the Consent form in a timely fashion once it had been provided to her as delineated above, the hearing officer found that no IDEA "child find" obligation was breached after October 7, 2014. In addition, the hearing officer rejected Plaintiff's claim that the District had to translate all disciplinary documents from A.V.'s cumulative file for Plaintiff, or to provide Plaintiff written explanations in Spanish for each disciplinary event, in order to ensure her meaningful participation in the IDEA process.
On August 28, 2015, Plaintiff filed an Amended Complaint in this matter which appealed, in addition to the December 10, 2014, sanctions order and the January 23, 2015, decision on Plaintiff's expedited claims, also the OAH's June 11, 2015, decision as to the non-expedited portions of Plaintiff's claims.
In framing the issue now before the Court in the context of Plaintiff's request for preliminary injunctive relief, Plaintiff first alleges that she is likely to succeed on the merits of her claim that the District "illegally failed to evaluate [A.V.] for his identified disabilities." Pl.'s Am. Mot., ECF No. 48, 7:13-16. Second, she claims that the District "failed to consider [those] disabilities in its [Section] 504 manifestation review."
Issuance of preliminary relief in advance of a decision on the merits is always considered an "extraordinary and drastic remedy" (
A preliminary injunction should ordinarily not issue, however, if the probability of success on the merits is low.
In analyzing Plaintiff's request for a preliminary injunction in this matter, the Court must first clarify the extent of its review given the posture of this case. As indicated above, Plaintiff's Amended Complaint appeals three different OAH decisions dated December 14, 2014, January 23, 2015 and June 11, 2015, respectively. The December 10, 2014, Order, which assesses sanctions against Plaintiff's counsel for prematurely filing an expedited hearing request, does not pertain to the injunctive relief sought by way of this Motion. Instead, Plaintiff's current request hinges on the assertion that A.V. was not properly assessed for IDEA eligibility prior to disciplinary measures being taken against him. Also relevant to the present Motion is Plaintiff's assertion that A.V.'s Section 504 manifestation determination also did not properly take into account A.V.'s diagnosis of ADHD as well as other allegedly disabling conditions on his part.
The time period encompassed by these assertions runs through November 21, 2014, when Plaintiff filed her amended due process hearing request based on the District's alleged failure to accommodate A.V.'s needs prior to that time. A hearing on those claims was held in April of 2015, and the OAH's decision was rendered June 11, 2015. As indicated above, Plaintiff's expedited claims stemming from Plaintiff's November 21, 2014 amended hearing request had already been decided by an earlier January 23, 2015 decision.
Despite these clearly delineated time frames, Plaintiff now makes various allegations extending well beyond the November 21, 2014 date of the amended hearing request whose determination demarcates the extent of the present lawsuit. Plaintiff takes issue, for example, with the District Board's decision on January 23, 2015 to formally expel Plaintiff, and with its subsequent determination, in January of 2016, to extend that expulsion for another year. Plaintiff further alleges that the special education services A.V. was provided, once she finally consented to a special education assessment in January 6, 2015, were inadequate.
Specifically, on October 6, 2015, Plaintiff filed another due process hearing request with OAH on grounds that the District's decision to expel Plaintiff in January 2015 violated the IDEA.
Additionally, to the extent that Plaintiff claims that the District's action after January 21, 2014, violated IDEA's mandate that all students be provided a FAPE, those claims are also not properly before this Court. First, those claims are not encompassed within the terms of Plaintiff's Amended Complaint itself, which purports to appeal only the three OAH decisions of December 14, 2014, January 23, 2015, and June 11, 2015, as delineated above. That alone makes it improper for the Court to consider Plaintiff's apparent challenge to the OAH's subsequent November 13, 2015, decision denying her later October 6, 2015 due process claim. Second, with regard to Plaintiff's February 9, 2016, due process claim, to the Court's knowledge those proceedings remain pending. Consequently, in addition to the fact that they are not properly before the Court in the first place, this Court lacks jurisdiction in any event to hear an appeal absent exhaustion of administrative remedies by way of a completed special education due process proceeding. M. M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1090 (9th Cir. 2012). Here, there is no indication that any such exhaustion has taken place.
It follows that in determining the propriety of a preliminary injunction at this time the Court's analysis is limited to the circumstances as they existed at the time of Plaintiff's November 21, 2014, due process request, since that is the last fully exhausted proceeding for which Plaintiff's lawsuit seeks redress. In that regard, as indicated above, Plaintiff claims that A.V. was not properly assessed for eligibility for IDEA services before disciplinary actions were taken against him. Plaintiff further claims that the District also failed to conduct an adequate Section 504 rehabilitation determination that considered A.V.'s disabilities prior to such discipline.
On the basis of the record before it, the Court concludes that Plaintiff lacks a reasonable likelihood of success as to either argument. First, the OAH hearing officer has determined in two different decisions that it was Plaintiff's own failure to provide written consent for A.V's assessment that resulted in the District's initial recommendation that A.V. be expelled in November 2014.
It is well established that under both the IDEA and California law, a school district has an affirmative obligation to identify, locate, and evaluate all children with disabilities residing within its boundaries. 20 U.S.C. § 1412(a)(3); Cal. Ed. Code § 56300, et seq. Before any action is taken to provide special education services to such students, a local education agency like the District must provide prior written notice to a parent or guardian of its intent to evaluate a child for IDEA eligibility. 20 U.S.C. §§ 1415(b)(3), (c). To that end, the District had to assess A.V. in all areas of suspected disability.
Here, the hearing officer concluded that Plaintiff was provided copies of the Consent for Evaluation on at least four different occasions but failed to provide the requisite consent. While Plaintiff contended that she neither received nor knew about or understood the need for such consent, the hearing officer did not find that testimony credible. Absent such evaluation, which Plaintiff herself prevented by failing to provide the requisite written consent, the District lacked the requisite "basis of knowledge" that that it had to comply with the IDEA when disciplining A.V.
Plaintiff's likelihood of success on the merits of her Section 504 claim is no better. Plaintiff's Section 504 claims also appear to rest upon the assertion that A.V.'s behaviors should have caused the District to take additional measures, including a more restrictive educational setting and special education, before resorting to expulsion. This assertion is also belied by Plaintiff's refusal to consent to A.V.'s special education evaluation prior to January 6, 2015. Prior to the District staff's decision to expel A.V., it was only on notice of A.V.'s ADHD diagnosis. On November 19, 2014, the District held a manifestation determination hearing where staff determined that A.V's behavior was not a manifestation of his ADHD, and that the District could proceed with expulsion. Clark Decl. at ¶ 18. Without the special education evaluation that Plaintiff's failure to consent had precluded, the District cannot be faulted for failing to consider other alleged disabilities since the District had no "basis of knowledge" absent such an assessment. 20 U.S.C. § 1415(k)(5)(C); OAH January 23, 2015 Decision, ¶ 13.
The Court consequently concludes that Plaintiff lacks any reasonable likelihood of success on the merits for either of the issues on which she bases her claim for injunctive relief. As indicated above, a preliminary injunction should ordinarily not issue if, as in this case, the probability of success on the merits is low.
In addition, examination of the other factors pertinent in determining whether to grant injunctive relief also do not favor the extraordinary relief Plaintiff requests. In order to justify preliminary injunctive relief, Plaintiff must also establish that irreparable injury is likely in the absence of an injunction.
Plaintiff also cannot convincingly claim that the balance of equities or public interest tips strongly in his favor inasmuch as A.V. has been given other educational options, both through the District's Opportunity School while expulsion proceedings were pending and in Kern County's Sillect Community Day School thereafter. On the other hand, as the District points out, reinstating A.V. in the District's mainstream educational programs where Plaintiff has not appealed the District's expulsion orders and has apparently not complied with the District's stated conditions for readmission would send the wrong message and tip the competing equities in the opposite direction.
Finally, it must be emphasized again that in requesting that the Court order the District to affirmatively reinstate A.V. to its educational programs, Plaintiff requests more than maintenance of the existing status quo while this case is being litigated. Instead, Plaintiff's request is mandatory rather than prohibitive in nature. As already indicated, the Ninth Circuit has made clear that such injunctions are "particularly disfavored" and should not be granted "unless the facts and law clearly favor the moving party.'"
For all the reasons set forth above, Plaintiff's Amended Motion for Preliminary Injunction (ECF No. 48) is DENIED.
