COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff the District of Columbia ("the District") seeks judicial review of a Hearing Officer's Determination and Order ("HOD") rendered in favor of Defendants Laura Vinyard and William Vinyard ("Defendants"), parents and next friends of their minor son, G.V.,
The IDEA was enacted to "ensure that all children with disabilities have available to them a free appropriate public education ["FAPE"] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). Once a child is identified as disabled, the school district within which the child resides must convene a meeting of a multi-disciplinary team to develop an individualized education program ("IEP") for the student. See § 1414.
The IDEA guarantees parents of disabled children the opportunity to participate in the evaluation and educational placement process. See § 1415(b)(1). Parents who believe their child's IEP or school placement is inadequate may request an administrative "due process hearing" before an impartial hearing officer. See § 1415(f). Following such a hearing, "[a]ny party aggrieved by the findings and decision ... shall have the right to bring a civil action ... in a district court of the United States." § 1415(i)(2)(A). During the pendency of an appeal to a district court, the IDEA provides that the child will "stay-put" — that is, remain in his "current educational placement" until the matter is resolved. 20 U.S.C. § 1415(j).
As alleged in the District's complaint, G.V. is a seven year old student residing with his parents, Defendants, in the District of Columbia, Compl. ¶¶ 4-6, who has been identified by the District of Columbia Public Schools ("DCPS") as a student with a disability under the IDEA. Id. at ¶¶ 4, 7. G.V. has always attended private schools at Defendants' expense
On October 5, 2012, while G.V. was attending Aiden Montessori, DCPS convened an IEP meeting, at which DCPS developed an IEP for G.V. Id. at ¶ 8. The IEP proposed six hours per week of specialized general education instruction and certain related services including speech/language therapy, occupational therapy, behavioral support, and physical therapy, all of which DCPS offered to implement at one of two DCPS elementary schools once G.V. enrolled and attended such school. Id. at ¶¶ 8, 10, 11. Defendants rejected the IEP offer and instead maintained G.V.'s enrollment at Aiden Montessori. Id. at ¶¶ 11-14. In early 2011, G.V.'s parents applied, and G.V. was accepted for admission, to the Lab School for the 2011-2012 school year. Id. at ¶ 16. Defendants' legal representative subsequently
On April 6, 2012, Defendants, on behalf of G.V., filed an administrative due process complaint, contending, inter alia, that DCPS had failed to provide G.V. with a FAPE for the 2011-2012 school year. See Defs.' Mem., Ex. 1(HOD). Specifically, Defendants asserted that the IEP that was offered to G.V. in 2010 and re-offered to him for the 2011-2012 school year was not appropriate insofar as it provided only 6 hours per week of specialized education, whereas G.V. required a full-time program. Id. at 3. Defendants further asserted that despite the fact that they informed DCPS of their interest in continuing the IEP process in the hopes of developing an appropriate program, no IEP was developed due to DCPS's refusal to continue the process because G.V. was not enrolled in a public school. Id. at 3. By way of relief, Defendants requested reimbursement for the costs of placing G.V. at the Lab School during the 2011-2012 school year and prospective placement at the Lab School for the 2012-2013 school year. Id. at 18 n. 18.
Following a three-day hearing, the hearing officer issued a ruling on June 30, 2012. In brief, the hearing officer found that the District denied G.V. a FAPE, as, despite Defendants' requests to convene an IEP meeting, it did not offer G.V. an IEP for the 2011-2012 school year, and the IEP developed for G.V. on October 5, 2010 was not appropriate under the applicable standards. Id. at 16-20, 27. Further, the hearing officer found that G.V.'s program and services at the Lab School are beneficial and thus, the Lab School was an appropriate placement during the 2011-2012 school year. Id. at 17, 26, 27. By way of relief, the hearing officer ordered DCPS to reimburse Defendants for all costs associated with G.V.'s education at the Lab School for the 2011-2012 school year
Id.
As of the date of this Order, the District has not proposed a new IEP for G.V. and has declined Defendants' requests for tuition reimbursement. Defs.' Mem. at 8, 10. On September 26, 2011, the District filed its complaint with this Court, appealing the HOD. Several weeks later, the parties filed their respective motions for injunctive relief. While the District's appeal seeks reversal of several of the HOD's factual and legal findings, see generally Compl., the parties' requests for injunctive relief are considerably less involved. Specifically, Defendants seek a "stay-put" injunction pursuant to § 1415(j) ordering the District to maintain G.V.'s placement at the Lab School, retroactive to the beginning of the current, 2012-2013 school year and continuously thereafter until this Court's decision on the merits of the District's appeal of the HOD.
The IDEA provides that "during the pendency of any proceedings conducted pursuant to [Section 1415], unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child[.]" § 1415(j). Commonly referred to as the "stay-put provision," this section requires the educational agency to maintain a disabled child in his "current educational placement" through both administrative and judicial proceedings, including an appeal from an administrative decision following a due process hearing. 34 C.F.R. § 300.518(a). The purpose of the stay-put injunction is to prevent educational authorities from unilaterally moving a child from his or her current placement. Alston, 439 F.Supp.2d at 88 (citing Honig v. Doe, 484 U.S. 305, 306, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). A parent can invoke the stay-put provision to request injunctive relief when a school system proposes a "fundamental change in, or elimination of, a basic element of the [then-current educational placement]." Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C.Cir.1984). As courts have consistently held, maintenance of a child's current placement includes full payment for the program in which the student is placed, and a failure by the school district to fund a child's current educational placement constitutes grounds for stay-put injunctive relief. See,
Here, Defendants contend that the District, in contravention of the June 30, 2012 HOD, has refused to fund G.V.'s attendance at the Lab School pending its appeal of the HOD to this Court. As a result, Defendants have moved for a preliminary injunction ordering the District to maintain, and fund, G.V.'s placement at the Lab School, retroactive to the beginning of the 2012-2013 school year and continuously thereafter until the resolution of the District's appeal. Defs.' Mem. at 19. The District argues in opposition that Defendants have failed to satisfy the four-prong test traditionally required to obtain injunctive relief, which would require Defendants to show that: there is a substantial likelihood of success on the merits; there is an imminent threat of irreparable harm should the relief be denied; more harm will result to Defendants from the denial of the injunction than will result to the District from its grant; and the public interest will not be disserved by the issuance of the stay-put order. Pl.'s Opp'n at 10-11 (citing cases). The traditional four-part standard for injunctive relief, however, does not apply to requests for stay-put relief pursuant to the IDEA, which directs that the "child shall remain in [his] then-current educational placement." § 1415(j) (emphasis added). The Supreme Court has recognized that the language of this pendency provision is "unequivocal" and "means what it says." Honig, 484 U.S. at 323, 325, 108 S.Ct. 592. Thus, "courts have consistently interpreted the stay put provision to be an automatic injunction." Laster v. Dist. of Columbia, 439 F.Supp.2d 93, 98-99 (D.D.C.2006) (citing cases). See also Andersen by Andersen v. Dist. of Columbia, 877 F.2d 1018, 1020 (D.C.Cir. 1989) (noting that if the stay-put provision applies, "injunctive relief is available without the traditional showing of irreparable harm"); Johnson v. Dist. of Columbia, 839 F.Supp.2d 173 (D.D.C.2012) ("The stay put provision has been interpreted as imposing an automatic statutory injunction, like the automatic stay in bankruptcy.") (citing Casey K. ex rel. Norman K. v. St. Anne Cmty. High Sch. Dist., 400 F.3d 508, 511 (7th Cir.2005)).
Accordingly, if Defendants are correct that the Lab School is G.V.'s "current educational placement," the District's refusal to fund G.V.'s placement at the Lab School amounts to a unilateral change to that placement, entitling Defendants to enforcement of their stay-put rights pursuant to § 1415(j), irrespective of their ability to demonstrate irreparable harm, likelihood of success on the merits, or a balancing of equities in their favor. Saleh v. Dist. of Columbia, 660 F.Supp. 212, 214 (D.D.C. 1987).
As the D.C. Circuit has observed, "the issuance of an injunction under this `stay put' provision depends predominantly on the determination of what constitutes [the child's] `current educational placement.'" Leonard, 869 F.2d at 1563-64. Accordingly, only if the Lab School is G.V.'s "current educational placement" is G.V. entitled to automatic stay-put relief. See id. at 1564 n. 5 ("Of course, the Supreme Court's statement that the language of [the IDEA's stay-put provision] is unequivocal is not apposite in a case ... in which the placement appellants desire is not the
Although the IDEA does not define "current educational placement," "courts have explained that a child's educational placement falls somewhere between the physical school attended by a child and the abstract goals of a child's IEP." Johnson, 839 F.Supp.2d at 176-77 (citing Bd. of Educ. of Cmty. High Sch. Dist. No. 218, Cook Cnty., Ill. v. Ill. State Bd. of Educ., 103 F.3d 545, 548 (7th Cir.1996)) (internal quotations omitted).
Here, the District argues that a plain reading of the federal regulations requires the hearing officer to "agree[] with the child's parents that a change of placement is appropriate" in order to warrant treatment of the HOD as an agreement as to a stay-put placement, 34 C.F.R. § 300.518(d) (emphasis added), and that here, no such agreement could exist because G.V. never had a functioning IEP and thus had no "placement" that could be
In the case at hand, the hearing officer specifically found, after a review of the record and a three-day hearing, that "DCPS denied [G.V.] a FAPE[,]" as "[t]he IEP developed for [G.V.] on October 5, 2010 was not appropriate[,] ... and [no] other IEP was developed." HOD at 27. See also id. at 16-20. The hearing officer likewise found that G.V.'s program and services at the Lab School are beneficial and that "[t]he Lab School was an appropriate placement in the 2011-2012 school year." Id. at 17, 26, 27. While the correctness of these findings is subject to review by this Court, such review shall be reserved for the merits of the underlying appeal. At this juncture, the hearing officer's unequivocal holding in favor of Defendants' placement of G.V. at the Lab School constitutes an agreement as to G.V.'s current educational placement for the limited purposes of stay-put relief. Accordingly, by operation of the June 30, 2012 HOD, G.V.'s educational placement became the Lab School, and the District's decision to decline to fund G.V.'s education at the Lab School during ongoing legal proceedings constitutes a unilateral change in placement that is prohibited by the stay-put provision. See Snyderman, 2007 WL 1114136 at *5.
The District broadly argues that stay-put relief is not warranted because it was ordered by the hearing officer, and the school system has appealed that decision. It reasons that, "[i]f the [local educational agency] has the right to appeal an HOD, then compliance with HODs that it has appealed cannot be required." Pl.'s Opp'n at 8-9. However, as this Court has previously observed, while the IDEA contains a provision permitting the child to opt to "stay put" during the pendency of further proceedings, "[n]owhere in the IDEA ... is there a corresponding right of an education provider to decline to implement a Hearing Officer Decision in a student's favor automatically, without seeking a stay of that Decision from either the Hearing Office or the Court in which further proceedings have been commenced[.]" Shelton v. Maya Angelou Public Charter Sch., 578 F.Supp.2d 83, 102 (D.D.C.2008). Furthermore, courts have
Having established that the Lab School became G.V.'s current educational placement by operation of the June 30, 2012 HOD, it follows that G.V. is entitled to automatic stay-put protection of such placement pending the District's appeal. Automatic, of course, does not mean compulsory. Rather, "the IDEA's stay put provision creates a presumption in favor of the child's current placement, but the school district may overcome the presumption if it can demonstrate that application of the traditional four part preliminary injunction test warrants a different result." Laster, 439 F.Supp.2d at 99 n. 6 (citing, inter alia, Honig, 484 U.S. at 327, 108 S.Ct. 592). For the reasons set forth below, the Court finds that the District has failed to show that the balance of equities in this case requires a different result.
Regarding the District's likelihood of success on the merits, in its briefing, the District nowhere challenges the hearing officer's findings of fact; nor could it in light of the parties' joint representation to this Court that reliance on the Administrative Record would be unnecessary for purposes of the Court's resolution of Defendants' instant request for stay-put relief. See Pl.'s Opp'n at 1, n. 2. Instead, the District's foremost objection to Defendants' stay-put motion, and to the HOD as a whole, is that, as a parentally-placed private school child, G.V. is simply not entitled to the development of an IEP unless and until he enrolls in public school. See Pl.'s Opp'n at 11-15 (citing, inter alia, 34 C.F.R. § 300.137).
The District also argues that it would suffer irreparable harm if the Court grants Defendants' request for stay-put relief. Specifically, the District asserts that its compliance with an order to maintain and fund G.V.'s placement at the Lab School pending its appeal of the HOD would moot the District's entire appeal. But this is simply not the case. As noted above, by definition, a court's stay-put ruling is limited to maintenance of a child's current placement pending proceedings; it does not constitute a determination on the merits as to the adequacy of that placement or even to the child's entitlement to services in the first instance. See, e.g., Mackey, 386 F.3d at 160 ("A claim for tuition reimbursement pursuant to the stay-put provision is evaluated independently from the evaluation of a claim for tuition reimbursement pursuant to the inadequacy of an IEP"). Accordingly, the District's compliance with a stay-put order bears no preclusive effect as to its appeal of the HOD's reimbursement award for G.V.'s tuition at the Lab School prior to the entry of the HOD, or of the HOD's findings regarding G.V.'s entitlement to a new IEP.
The District also argues that it may suffer irreparable harm in that, if it funds G.V.'s placement at the Lab School as of the beginning of the 2012-2013 school year
The Court shall now turn to the District's motion to stay the entirety of the HOD pending the instant appeal. "A stay is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case." Nken v. Holder, 556 U.S. 418, 433-434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citations and quotations omitted). The Supreme Court has described the "traditional standard" for the issuance of a stay pending appeal as follows: "(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Id. at 434, 129 S.Ct. 1749. The Court of Appeals has emphasized that the traditional factors are "typically evaluated on a `sliding scale.'... [I]f the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success." Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C.Cir.2009), (citations and quotations omitted).
Here, it is readily apparent that the District's motion is, in part, an attempt to preclude G.V. from exercising his stay-put rights. However, as discussed supra, Part II.A.1, once a party has established that the placement for which a stay-put order is requested is in fact the child's "current placement" within the meaning of the IDEA, stay-put relief automatically follows unless the District can demonstrate its entitlement to an injunction ordering otherwise. As also discussed supra, Part II.A.3, the District has failed to demonstrate its entitlement to equitable relief on the stay-put issue. Accordingly, and in light of the substantial overlap between the factors governing stays and preliminary injunctions, Nken, 556 U.S. 418 at
The Court finds, however, that the circumstances of this case require a different result with respect to the hearing officer's remaining orders — namely, that the District reimburse Defendants for all costs associated with G.V.'s education at the Lab School for the 2011-2012 school year and develop a new IEP designed to address G.V.'s educational needs. Indeed, the Court finds compelling the District's arguments that a stay of these holdings is necessary to preserve the District's meaningful right to appeal the HOD. In its briefing on this matter, the District cites to two recent cases where DCPS appealed an HOD while having already complied with it by paying the tuition reimbursements ordered by the hearing officer. See Pl.'s Opp'n at 9; Pl.'s Mem. at 5; Pl.'s Reply at 3 (citing 1:11-cv-01722-BAH, ECF No. [24]; 1:11-cv-1239-RBW, ECF No. [9]). In one instance, the court dismissed the action as moot; in the other, a magistrate judge recommended a dismissal based on mootness. As a practical matter, if the District were to provide G.V. with an adequate IEP, a court may be hard-pressed to find an actual, ongoing controversy regarding G.V.'s then-current placement. See American Bar Ass'n v. FTC, 636 F.3d 641, 645 (D.C.Cir.2011) ("Even where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future.").
As for the hearing officer's reimbursement orders, as has already been noted, see supra, Part II.A.3, several courts have held that the IDEA does not permit a school district to recover money already paid to parents in accordance with a hearing officer's determination. See Jenkins, 935 F.2d at 307 n. 3. Accordingly, should the District reimburse Defendants for G.V.'s tuition for the 2011-2012 school year and later prevail on appeal, they may nonetheless be irreparably harmed in their inability to recover such funds. See Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 704 F.Supp.2d 50, 52 (D.D.C.2010) (In considering whether harm is irreparable in the context of economic harm, the movant must show either that the harm would threaten the existence of its business or that the moneys lost as a result of the lack of a stay would be unrecoverable) (citing Wis. Gas Co. v. Fed. Energy Regulatory Comm'n, 758 F.2d 669, 674 (D.C.Cir.1985)). While this outcome may be unavoidable, and in fact intended, with respect to payments made to maintain a child's pendent placement in light of the automatic rights conferred by § 1415(j), see supra, Part II.A.3, nothing in the statute or regulations requires this Court to treat an administrative holding regarding reimbursement for a child's past tuition as an agreement between the parties warranting immediate relief. What is more, if the District complies with the hearing officer's order to reimburse G.V. for the 2011-2012 school year, Defendants would have a reasonable argument that the case should be dismissed because, in the absence of an ability to recover such funds, there remains no justiciable controversy.
The District requests that, in the event the Court grants Defendants' motion for a preliminary injunction, Defendants be required to post a bond equal to the amount that DCPS would be required to pay, pursuant to Federal Rule of Civil Procedure 65(c). On reply, Defendants argue that requiring the posting of a bond on a stay-put injunction would defeat the statutory scheme of the IDEA. The Court agrees with Defendants, based on the same reason it declines to view the District's potential inability to recover stay-put payments — as opposed to past tuition reimbursement — to constitute irreparable harm: because "that is simply how the stay put provision of the IDEA operates." See supra, Part II.A.3 (citing Ravenswood, 2010 WL 4807061 at *5). If a local educational agency is required to maintain a stay-put placement irrespective of the outcome of the appeal, then what purpose would a bond serve? Furthermore, as at least one other court in this circuit has held in connection with its issuance of an IDEA stay-put injunction, "only a party seeking to change (not maintain) the status quo needs to post a bond." Laster, 439 F.Supp.2d at 99 n. 7. See also Donna and Douglas S. v. Louisiana, 26 IDELR 1108 (E.D.La.1997), aff'd, St. Tammany Parish Sch. Bd. v. Louisiana, 142 F.3d 776 (5th Cir.1998) ("[T]he requirement of a bond would be counterintuitive to the statute. By virtue of the [administrative] decision, the state has agreed as a matter of law with the child's placement ... To require a bond would place the parents at the same financial risk as those parents who inappropriately change their child's placement.").
For all of the foregoing reasons, Defendants' [3] Motion for Preliminary Injunction shall be GRANTED, and the District's [11] Motion to Stay shall be GRANTED-IN-PART and DENIED-IN-PART. The Lab School of Washington is G.V.'s pendent placement under the IDEA, and as such, G.V. is entitled to remain there pending the District's appeal in this matter, with such placement funded by the District, immediately, and retroactive to the beginning of the 2012-2013 school year.
