BERYL A. HOWELL, United States District Judge.
The plaintiff, Reid Eley, a special-education eligible student residing in the District of Columbia, is before this Court for the third time in the last three years in his ongoing fight to obtain a free appropriate public education, as guaranteed by the Individuals with Disabilities Education Act
Following remand after this Court issued its decision in Eley I, this matter was brought before a District of Columbia Hearing Officer "for the sole purpose of determining whether the $2,850 sought by the plaintiff as reimbursement [for private school tuition] is appropriate and reasonable." Eley I, 2012 WL 3656471, at *1. On November 21, 2012, a hearing officer found that the plaintiff was entitled to $2,850. See Pl.'s Mot. Ex. 1 (Hearing Officer Determination ("HOD") (Nov. 21, 2012)) at 8, ECF No. 9-1. Far from ending the dispute between the parties, the handling of the plaintiff's education by the defendant prompted the plaintiff to file multiple due process complaints against the defendant over the next year and a half.
Despite the clear instruction in Eley I that the defendant should "prepar[e] ... an IEP for the 2012-13 school year" and address whether TLCIS should be the plaintiff's prospective placement "as soon as possible," 2012 WL 3656471, at *11, the defendant failed to re-evaluate the plaintiff or provide a location where he could receive educational services for the 2012-2013 school year, prompting the plaintiff's first
In accordance with the May 1, 2013 HOD, the plaintiff's IEP team met on May 14, 2013 to develop a new IEP. Pl.'s Mot. Ex. 3 (HOD (July 26, 2013)) at 6-7, ECF No. 9-1. A final IEP was produced based on this meeting and subsequent communications between the parties, on May 28, 2013.
In June 2013, the defendant's "Location of Services team" met without the plaintiff, who was not invited to participate. Id. at 8-9. The defendant "determined that the ESY program [for Summer 2013] at [Eastern Senior High School] would be able to implement [the plaintiff's] ESY program." See id. On June 7, 2013, prior to the plaintiff being notified of the location of his ESY services, the plaintiff's mother filed her second due process complaint against the defendant alleging, inter alia, that the defendant failed to provide the plaintiff with a Free Appropriate Public Education ("FAPE") by failing to comply with the May 1, 2013 HOD to provide an appropriate IEP. See id. at 1-2. In a July 26, 2013 HOD, the hearing officer found that the plaintiff's mother had "not met her burden of proof to establish that the May 28, 2013 IEP was deficient ... or that the IEP was not reasonably calculated to provide [the plaintiff] educational benefits." Id. at 21.
On August 26, 2013, the plaintiff's mother filed a third due process complaint against the defendant, alleging that the defendant "failed to provide the [plaintiff] any school for the student to attend for SY 2013-2014." Pl.'s Mot. Ex. 4 (HOD (Nov. 9, 2013)) at 3, ECF No. 9-1. In an HOD issued on November 9, 2013, the hearing officer found that the plaintiff's mother "sustained the burden of proof by a preponderance of the evidence that [the defendant] was to propose and [sic] educational placement for the [plaintiff] for SY
On December 6, 2013, the plaintiff's mother filed her fourth due process complaint against the defendant, alleging that the defendant "denied [the plaintiff] a .... FAPE by failing to identify a school for [the plaintiff] to attend ... and by not following IDEA procedures in making changes to [the plaintiff's] IEP in September 2013."
The administrative hearing on the plaintiff's fourth, December 6, 2013 complaint was held on February 4, 2014. See Pl.'s Mot. Ex. 5 (Hrg. Tr. (Feb.4, 2014)) at 1, ECF No. 9-1. In a letter dated the next day, February 5, 2014 — more than halfway through the 2013-2014 school year — the defendant notified the plaintiff that "[n]o changes to [his] IEP [were] being proposed at [the] time" and that "[t]he location of services for IEP implementation for [him] for the remainder of the 2013-2014 school year [was], High Road Academy of Washington, D.C." Pl.'s Mot. Ex. 12 (Letter from defendant to plaintiff (Feb. 5, 2014)) at 1, ECF No. 9-1.
The hearing officer issued an HOD on February 16, 2014,
The plaintiff filed the instant motion for injunctive relief on April 6, 2014, exercising his stay-put rights under 20 U.S.C. § 1415(j). See Pl.'s Mot. at 1. The plaintiff seeks an injunction requiring the defendant to "fund the provision of all of the instruction and related services prescribed in [the plaintiff's] May 2013 IEP, at TLCIS at their customary rates, until the IDEA proceedings regarding [the plaintiff's] placement have concluded." Pl.'s Mem. Supp. Pl.'s Mot. ("Pl.'s Mem.") at 8, ECF No. 9.
Section 1415(j) states that, except in certain circumstances inapplicable to the plaintiff here, "during the pendency of any proceedings conducted pursuant to this section, 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." 20 U.S.C. § 1415(j). By its terms, this procedural safeguard, commonly known as the "stay-put" provision, "functions, in essence, as an automatic preliminary injunction." Drinker by Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir.1996) (discussing the identical IDEA provision when it was codified at 20 U.S.C. § 1415(e)(3)); see also Laster v. District of Columbia, 439 F.Supp.2d 93, 98-99 (D.D.C.2006) (collecting cases and noting "courts have consistently interpreted the stay-put provision to be an automatic injunction."). The stay-put provision is among the "various procedural safeguards" established by the IDEA to "guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate." Honig v. Doe, 484 U.S. 305, 311-312, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The Supreme Court explained in Honig, that the "unequivocal" language of this provision shows "that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school," pending completion of the review proceedings. Id. at 323, 108 S.Ct. 592 (emphasis in original); see Flour Bluff Indep. Sch. Dist. v. Katherine M. by Lesa T., 91 F.3d 689, 695 (5th Cir.1996) ("One of the obvious purposes of the `stay-put' provision is to reduce the chance of a child being bounced from one school to another, only to have the location changed again by an appellate court.").
In evaluating requests for injunctive relief under the stay-put provision, the traditional four-part test for a preliminary injunction does not apply. See Andersen by Andersen v. District of Columbia, 877 F.2d 1018, 1023-24 (D.C.Cir.1989) (noting that "if the [stay-put] provision applies, injunctive relief is available without the traditional showing of irreparable harm"); see also District of Columbia v. Vinyard, 901 F.Supp.2d 77, 84 (D.D.C.2012) (finding a school's "unilateral change to that [current educational] placement" entitles movants 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,
The parties agree that the first prong of the two-step test for application of the stay-put presumption has been met: that there is a pending IDEA action that has been appealed. See Def.'s Opp'n Pl.'s Mot. ("Def.'s Opp'n") at 4, ECF No. 10 ("For purposes of this motion, the [defendant] acknowledges that there is an action pending, which is the instant appeal."). The defendant disputes, however, that removing the plaintiff from the private school from which he has been receiving instruction since the 2010-2011 school year and placement in a new private school with different teachers in a different environment constitutes a change in the plaintiff's "then-current educational placement." See id. at 5. Alternatively, the defendant asserts that even if the proposed move were a change in the plaintiff's "then-current education placement," application of the traditional four-factor preliminary injunction test "warrants a different result" than staying put, which is the relief sought by the plaintiff. Id. at 17.
The Court begins by addressing the contested second prong of the stay-put injunction presumption before turning to the defendant's alternate ground for denial of the requested injunctive relief.
In opposing the plaintiff's request for a stay-put injunction, the defendant protests that it "is not seeking to change Plaintiff's current educational placement," Def.'s Opp'n at 5, and, absent such a change, the plaintiff is not entitled to relief under § 1415(j). The defendant's opposition raises two questions: first, whether a change in the student's "then-current educational placement," under § 1415(j), can occur when a student is assigned to a different school where the same IEP can be implemented? Second, in light of that analysis, whether, in the circumstances of this case, the defendant's proposed move of the plaintiff from TLCIS to High Road Academy amounts to such a change, triggering the stay-put injunction? Contrary to the defendant's position, the Court answers both these questions affirmatively.
The parties in this case starkly differ in their interpretation of the term "then-current educational placement." The plaintiff contends that the phrase "educational placement," "includes an actual, physical school." Pl.'s Reply Re: "Stay-Put" Prelim.
The IDEA does not define the key term in the stay-put provision of "then-current educational placement." See 20 U.S.C. § 1401. Indeed, the IDEA does not define the term "placement," or what distinguishes a general "educational placement" from the "then-current educational placement" referred to in § 1415(j). See id. Absent a specific statutory definition, courts "construe [terms] in accordance with [their] ordinary meaning." Octane Fitness, LLC v. ICON Health & Fitness Inc., ___ U.S. ___, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014) (internal quotation marks and citation omitted); see Cal. Indep. Sys. Operator Corp. v. FERC, 372 F.3d 395, 400 (D.C.Cir.2004) ("[W]e begin with a `plain language' analysis of the statutory text. That is, we assume `that the legislative purpose is expressed by the ordinary meaning of the words used.'" (quoting Sec. Indus. Ass'n v. Bd. of Governors, 468 U.S. 137, 149, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984)).
The word "placement" is defined as "an act or instance of placing" or "the assignment of a person to a suitable place (as a job or a class in school)." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 888 (10th Ed.1999). "Placing," in turn, is defined as "to put in or as if in a particular place or position," and "place" is defined as "a physical environment." Id. at 887, 888. Thus, in ordinary parlance, "educational placement" would appear to be that "place" where a person is "assign[ed]" to receive educational services, or the "physical environment" where educational services are provided. See id.; see also Pl.'s Reply at 7 n.5 ("The common usage of `placement' that comes closest to the one proposed by the [defendant] is the usage in `job placement'.... A job placement is an actual job for an actual, identified institution."). This construction includes, implicitly or explicitly, a suggestion of a physical environment or location at which something exists or is to be performed. Thus, the plain language of the term "educational placement" certainly does not exclude reference to a physical location, as the defendant's focus on the goals of the IEP only would suggest. See Def.'s Opp'n at 5.
Outside of the plain meaning of words in a statute, courts may also derive
The word "placement" appears in § 1415, apart from the stay-put provision in subsection (j), at least twenty-one times. See 20 U.S.C. § 1415. The phrase "then-current educational placement" occurs only once, in the stay-put provision itself. See id. Elsewhere in § 1415, the context of the word "placement" would lead to an absurd result if it were not meant to refer to a particular location. For instance, § 1415(d)(2)(H) refers to "requirements for unilateral placement by parents of children in private schools at public expense." If the defendant's interpretation were correct, and educational placement refers only to the IEP, § 1415(d)(2)(H) would be meaningless, since parents cannot create a "unilateral" IEP that requires a child to attend "private schools at public expense." The plain meaning of the term "placement" as encompassing physical location, however, fits perfectly in § 1415(d)(2)(H). Using that definition, "placement" would refer to the location at which an IEP was to be implemented, as unilaterally selected by the parents, instead of in the collaborative process envisioned by the IDEA. See 20 U.S.C. § 1415(d)(2)(H).
An examination of other subsections in § 1415 confirms the plain meaning of the term "placement." For example, the IDEA carves out a single exception to the stay-put provision in a section titled "Placement in alternative educational setting," which is codified at 20 U.S.C. § 1415(k). See 20 U.S.C. § 1415(j) (stating stay put provision applies "[e]xcept as provided in subsection (k)(4)"). Section 1415(k) authorizes school officials to "remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days." Id. § (k)(1)(B). In such disciplinary situations, school officials may remove a child from her "current placement," provided that the child shall "continue to receive educational services ... so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP." Id. §§ (k)(1)(D) and (k)(1)(D)(i). Section 1415(k)(1)(G) sets forth the instances when a child may be removed to "an interim alternative educational setting" for a longer period of time, such as when the child "carries or possess a weapon to or at school." Id. § (k)(1)(G)(i). In § 1415(k)(3), provisions are made for appeals by the child's parent "or a local educational agency that believes that maintaining the current placement of
Thus, in context, the word "placement" is used in § 1415 to refer to the physical location or surroundings at which a child is receiving educational services and not just the general setting provided for in the student's IEP. This contextual review belies the defendant's argument that "educational placement" refers only to the student's IEP without regard to the location where the services identified in the IEP are provided.
The defendant correctly points out that the construction it urges has found support in case law from several circuits, including the D.C. Circuit. See Def.'s Opp'n at 6 ("This correct application of the term educational placement is well-established and accepted by the courts.").
In Lunceford v. District of Columbia Board of Education, 745 F.2d 1577, 1579 (D.C.Cir.1984), the court considered the definition of "educational placement" for "a multi-handicapped young man with profound mental [disability] and crippling conditions." The student lived in a private hospital where he was also provided educational services. Id. The dispute arose when the private hospital informed the school district that the plaintiff "was ready to be discharged" and recommended that he continue the identical "education program on an outpatient basis." Id. The only change at issue in Lunceford was the student's residential setting, not his IEP or any other aspect of his educational setting. See id.
The D.C. Circuit overturned the District Court's ruling that this change in residential environment constituted a "change in educational placement." See id. This focus
The Lunceford court reached its decision, in part, by interpreting an earlier Second Circuit case, Concerned Parents and Citizens for the Continuing Education at Malcolm X (PS 79) v. New York City Board of Education (Concerned Parents), 629 F.2d 751 (2d Cir.1980). See Lunceford, 745 F.2d at 1582. Both cases involved a location shift without any change in the operative IEP for the children at issue. Concerned Parents rejected an attempt by the parents of nearly two hundred IDEA-eligible students to prevent the New York City Board of Education ("the Board") from closing a certain public school,
The Concerned Parents decision addressed only "the narrow question [of] whether the transfer of handicapped children in special classes at one school to substantially similar classes at other schools within the same school district constitutes a change in `placement' sufficient to trigger the [IDEA's predecessor's] prior notice and hearing requirements," id. at 753, not whether such a transfer constituted a change in the "then-current educational placement," 20 U.S.C. § 1415(j), of the students for the purposes of the stay-put provision.
Based in part on a review of the legislative history of the statute, the Second Circuit
The Concerned Parents court rejected the District Court's ruling requiring the school district to provide such services to the transferred students as, inter alia, "[a] school book fair," "[a] library trip program," "[d]ance and art festivals," and "[w]eekly radio broadcasts in conjunction with a local radio station[.]" 629 F.2d at 755. Such an order, the Second Circuit found, "would virtually cripple the Board's ability to implement even minor discretionary changes within the educational programs provided for its students .... [and] the educational agency would lack any workable standard for assessing whether a particular contemplated decision might constitute a change in `educational placement.'" Id. The Concerned Parents court acknowledged that the defendant "made a good faith effort to preserve intact as far as possible the basic educational programs that the transferred children had formerly enjoyed[,]" and that "the transfer may actually further the statutory goal of integrating handicapped children into the regular educational process." Id. at 756; 756 n. 6. Consequently, in the circumstances of that case, the Second Circuit held that "the term `educational placement' refers only to the general type of educational program in which the child is placed," for the purposes of the "prior written notice" requirement in the IDEA's predecessor statute. Id. at 756.
The Concerned Parents court stated explicitly that its "conclusion does not mean, however, that there are no constraints on the power of school boards to close schools and transfer students; we merely hold that under the facts of this case," prior written notice to the parents of the affected children was unnecessary. Id. (emphasis added). The court also pointed out that the parents of the transferred students were free to seek judicial review of the conditions at the new schools after exhausting their administrative remedies. Id.
Both the Concerned Parents and Lunceford courts avoided a construction of "educational placement" that would require courts to micromanage minute aspects of a school district's curriculum choices regarding IDEA-eligible students and, at the same time, emphasized the fact-specific nature of the inquiry as to whether a proposed change in physical location for implementation of an IEP warranted injunctive relief to stop the school district from taking unilateral action. See Lunceford, 745 F.2d at 1582; Concerned Parents, 629 F.2d at 756.
Indeed, Lunceford, which is the only binding authority cited by the defendant in its briefing on this motion, see generally Def.'s Opp'n (citing no D.C. Circuit cases other than Lunceford as support for its interpretation of "educational placement"), simply does not support the defendant's proposition that the term "then-current educational placement," as used in the stay-put provision, focuses solely on the
Subsequent to the Second and D.C. Circuits opinions in Concerned Parents and Lunceford, the Seventh Circuit in Board of Education of Community High School District Number 218, Cook County, Illinois v. Illinois State Board of Education (Cook County), 103 F.3d 545, 548 (7th Cir.1996), acknowledged that the application of the stay-put provision is an intensely fact-driven inquiry. The Cook County court aptly observed that, since "the term `educational placement' is not statutorily defined ... identifying a change in this placement is something of an inexact science." Id. The Seventh Circuit noted that "the meaning of `educational placement' falls somewhere between the physical school attended by a child and the abstract goals of a child's IEP." Id. The plaintiff's argument in the instant matter appears to fall at one extreme of the Seventh Circuit's continuum, namely, that a placement must involve a location, see Pl.'s Reply at 4, and the defendant's argument falls at the other end, namely, that a student's placement is merely the abstract goals embodied in an IEP, see Def.'s Opp'n at 6. In Cook County, the Seventh Circuit followed an approach that neatly splits the difference between these two extremes.
At issue in Cook County was a child whose residential placement had effectively expelled him and a school district that was unable to find another residential program
This approach has the advantage of using, at its core, a pragmatic assessment of a student's individual circumstances in order to effectuate the stay-put provision's goal of "adher[ing] to the educational status quo for a growing, learning" student. Cook County, 103 F.3d at 549. Several other Judges on this Court have relied upon Cook County, at least in part, in deciding the applicability of stay-put injunctions. See Laster v. District of Columbia, 394 F.Supp.2d 60, 64-65 (D.D.C. 2005) (quoting Cook County, 103 F.3d at 548); Vinyard, 901 F.Supp.2d at 85 (quoting Johnson v. District of Columbia, 839 F.Supp.2d 173, 176-77 (D.D.C.2012) (citing Cook County, 103 F.3d at 548)); Alston, 439 F.Supp.2d 86, 90 (D.D.C.2006) (quoting Cook County, 103 F.3d at 548); Spilsbury v. District of Columbia, 307 F.Supp.2d 22, 26-27 (D.D.C.2004) (relying, in part, on Cook County, 103 F.3d at 549, for proposition that "`current educational placement' cannot be read to only indicate which physical school building a child attends," and distinguishing between "current placement," referring to location, and "current level of services," referring to educational programming); but see D.K. v. District of Columbia, No. 13-110, 983 F.Supp.2d 138, 145, 2013 WL 5460281, at *5 (D.D.C.2013) (citing Laster, 394 F.Supp.2d at 64-65 (citing Cook County, 103 F.3d at 548) but stating "[A] change of location does not constitute a change in `educational placement' under the IDEA.").
Set against this review of the facts and policy considerations driving the decisions in Lunceford, Concerned Parents, and
The plaintiff argues that "`placement' includes a particular, actual school," Pl.'s Reply at 4, but such a definition is also incomplete. It is entirely possible that a change in an IEP, without a proposed change in the physical location where educational services are to be rendered, may constitute a change in "educational placement" such that the stay-put provision is triggered. See F.S. ex rel. Snyderman v. District of Columbia, No. 06-923, 2007 WL 1114136, at *5 (D.D.C. Apr. 13, 2007) (holding that school district's "decision to cut off funding for [the student's] education constitutes a unilateral change in placement that is prohibited by the stay put provision"); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 194 (2d Cir. 2012) (finding that failure to provide one-on-one instruction with dedicated aide, as provided in student's IEP, was violation of IDEA). As these cases make clear, a change in educational placement does not always involve a change in physical location, as the plaintiff suggests. See Pl.'s Reply at 4. While a change in physical location may — and often will be — sufficient to trigger the stay-put provision's protections, Concerned Parents and Lunceford make clear that not every physical location change amounts to a change of educational placement.
To sum up, the location where educational services are to be implemented is a vital portion of a student's educational placement, contrary to the defendant's argument. Yet, the rigid view, put forward by the plaintiff, that a change in physical location is always a necessary and sufficient condition to trigger the stay-put provision is also incomplete. Absent binding precedent from the D.C. Circuit, the Court finds the Seventh Circuit's reasoning in Cook County persuasive and holds that the
This does not end the inquiry, however, since it is still necessary to determine the plaintiff's "then-current educational placement" at the time the instant appeal was raised and whether the change proposed by the school district is, in fact, a change in the then-current educational placement.
The plaintiff contends that his "then-current" placement is the school from which he has been receiving instruction since 2010-2011, namely, TLCIS. Pl.'s Mem. at 8. The defendant argues that TLCIS has never been the plaintiff's "placement." See Def.'s Opp'n at 16 ("[T]he Court should reject Plaintiff's argument that TLCIS is his current educational placement for purposes of "stay put"). Instead, the defendant suggests that High Road Academy, the school the plaintiff has never attended and was not identified as the plaintiff's placement until February 5, 2014, after the instant due process complaint was filed, is the plaintiff's placement. See id. at 11 (arguing no change in educational placement since High Road Academy can purportedly implement the plaintiff's IEP). The Court finds that TLCIS is the plaintiff's "then-current educational placement" for the purposes of the stay-put provision and rejects the defendant's arguments to the contrary.
In District of Columbia v. Oliver, No. 13-215, 991 F.Supp.2d 209, 214, 2013 WL 6000889, at *3 (D.D.C.2013), this Court addressed an analogous situation to the instant matter. In Oliver, the school district refused to provide an IEP for a student before that student first enrolled in a public school. See id. at 210, at *1. When the student asserted her stay-put rights, the school district argued that, absent an IEP, there could be no "then-current educational placement" to maintain. See id. at 214, at *3. Although the instant matter differs from Oliver in that the plaintiff here has an IEP, the same principles of law from Oliver apply to show that TLCIS is the plaintiff's "then-current educational placement" for stay-put purposes.
As this Court noted in Oliver, "[w]here ... no IEP has been prepared or implemented, the `current educational placement' will be the place where the child is actually receiving instruction at the time the dispute arises, provided there has been some sort of administrative determination that the location is appropriate." Id. (collecting cases). While the plaintiff in the instant matter has an IEP, that IEP has never been implemented by the defendant and the plaintiff has received instruction under the May 2013 IEP exclusively from TLCIS. See Pl.'s Mem. at 4-5. Thus, if there has been "some sort of administrative determination that the location is appropriate" at TLCIS, then TLCIS is the plaintiff's "then-current educational placement" for the purposes of the stay-put provision. See Oliver, 991 F.Supp.2d at 214, 2013 WL 6000889, at *3.
The defendant contests the plaintiff's assertion that "every adjudicator to address the issue has found TLCIS appropriate for him." Pl.'s Mem. at 5; see Def.'s Opp'n at 12 ("[N]o hearing officer or court has
Setting aside the multiple HODs that have ordered reimbursement of the plaintiff's expenses for attending TLCIS since 2010, this Court found TLCIS an "appropriate placement" in upholding an earlier HOD in Eley I. Specifically, this Court noted "[t]he private school placement [at TLCIS] was deemed appropriate... according to the hearing officer." See Eley I, 2012 WL 3656471, at *3; see also Pl.'s Ex. 1 at 2 (referring to HOD stating the Eley I "Court did not disturb the original hearing officer's finding that [TLCIS] was appropriate."). As such, there has been an "administrative determination that the location is appropriate." See Oliver, 991 F.Supp.2d at 214, 2013 WL 6000889, at *3. The cases relied upon by the defendant that address situations where there has been no determination that the current educational placement was appropriate are wholly inapposite. See Def.'s Opp'n at 12-14 (relying upon L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir.2009) and Huerta v. San Francisco Unified Sch. Dist., No. 11-4817, 2011 WL 5521742, at *6 (N.D.Cal. Nov. 14, 2011)).
The next necessary determination is whether a shift from TLCIS to High Road Academy is, in fact, a change in educational placement. That it is such a change is clear from the defendant's characterization of the two schools. The defendant notes that TLCIS, which has been found appropriate by previous HODs and this Court, see Eley I, 2012 WL 3656471, at *3; see also Pl.'s Ex. 1 at 2, is "an internet school with ... no campus or physical classroom [and] no access to other peers in the educational setting," Def.'s Opp'n at 5. High Road Academy, on the other hand, "is a specialized school for students with learning disabilities ... [that] offers a small-group setting, one-on-one instruction .... [where a]ll classes are led by a certified teacher and a teaching assistant with a reading specialist who works closely with the teachers," Def.'s Opp'n at 10-11 (first alteration in original). Clearly, shifting from what is essentially a completely individualized instructional setting separate from other students to a more traditional school setting does constitute a change in the plaintiff's "then-current educational placement," as defined supra, such that the plaintiff is entitled to the stay-put provision's presumption of automatic injunctive relief.
The defendant contends, in the alternative, that the presumption in favor of the plaintiff's requested injunctive relief under the stay-put provision is overcome in the instant matter because the "application of the traditional four part preliminary injunction test warrants a different result." Def.'s Opp'n at 17. At the outset, the defendant has made no separate, counter-motion for a preliminary injunction to enjoin enforcement of the stay-put provision and, consequently, the propriety of considering the traditional four-factor test for injunctive relief is procedurally questionable here. The law is well-settled that a student invoking the stay-put provision need not address these factors. See Laster, 439 F.Supp.2d at 98-99 (collecting cases). By contrast, a school district seeking to change the status quo must make the requisite showing of meeting the four-factor test in order to displace the then-current educational placement protected by the stay-put provision. See Honig, 484 U.S. at 328, 108 S.Ct. 592 (discussing application of four-factor test to school district requests for injunctive relief to change status quo placement of disabled student); see also Bell v. Educ. in the Unorganized Terrs., No. 00-CV-160-B, 2000 WL 1855096, at *6, 2000 U.S. Dist. LEXIS 15262, at *9-17 (D.Me. Oct. 16, 2000) (holding where student invoked stay-put provision, defendant school authorities have burden "to move for a preliminary injunction and to make the requisite four-part showing" to prevent the student from remaining in school); School Bd. of Pinellas Cty., Fla. v. J.M. By and Through L.M., 957 F.Supp. 1252, 1253-1254 (M.D.Fla. 1997) (noting where student objected to proposed change in placement and invoked stay-put provision, school board sought "injunction enjoining the enforcement of this `stay-put' provision").
The First Circuit made this mechanism explicit in Doe v. Brookline School Committee, 722 F.2d 910, 917 (1st Cir. 1983), noting that the "motion for preliminary injunction should be made by the party wishing to depart from the status quo." Here, that party is the defendant, which is seeking a change in the plaintiff's current placement and, therefore, the defendant should be the one required to move for a preliminary injunction. See id. The First Circuit explained that the policy considerations underlying this procedural requirement were to effectuate Congress' "strong preference for the preservation of the status quo through its enactment of [the stay-put provision]," and to "maintain the court's broad equity powers to do substantial justice[,]" id. by not rewarding school systems "for their misfeasance or nonfeasance .... in contravention of the statute's express primary directive[,]" id. at 916, to provide a FAPE to all students. While the stay-put provision does not "limit the equitable powers of district courts,"
In light of the plaintiff's failure to object to the appropriateness of the defendant's procedural short-cut, however, the Court turns to the defendant's argument regarding application of the traditional four-factor test for invocation of a preliminary injunction. "A [party] seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.Cir.2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.Cir.2011)) (alteration in original). A traditional preliminary injunction, as opposed to the statutory automatic injunction provided for in the stay-put provision, "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quoting 11A C. Wright, A. Miller, & M. Kane, FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed.1995)) (emphasis in original). In this circumstance, the defendant, not the plaintiff, is properly considered the movant. See Honig, 484 U.S. at 328 n. 10, 108 S.Ct. 592 ("In any suit brought by parents seeking injunctive relief for a violation of [the stay-put provision], the burden rests with the school district to demonstrate that the educational status quo must be altered."). The defendant fails to carry its burden for the extraordinary relief requested.
First, the defendant asserts that the plaintiff's likelihood of success on the merits "is either inapplicable or should be given less weight than the other factors" in this matter, since determining the plaintiff's educational placement is not at issue in the underlying appeal. Def.'s Opp'n at 17. Instead, the defendant relies upon the "sliding scale" approach to preliminary injunctions, where, even if the movant is unable to show a strong likelihood of success on the merits, the movant may nevertheless be granted injunctive relief if "the other three factors strongly favor interim relief" and "the moving party has merely made out a `substantial' case on the merits." See id. at 17, 114 S.Ct. 361 (citing Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843-45 (D.C.Cir.1977)). The defendant's argument rests on caselaw that is now the subject of a Circuit split, on which the D.C. Circuit has yet to take a position. See Am. Meat Inst. v. U.S. Dep't of Agric., 746 F.3d 1065, 1074 (D.C.Cir.2014). Indeed, there is some question as to whether the "sliding scale" approach asserted by the defendant survives the Supreme Court decision in Winter v. Natural Resources Defense Council, 555 U.S. 7, 20-21, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), which notes that a plaintiff seeking injunctive relief must prove all four prongs of the four-factor test, including likelihood of success on the merits. See In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C.Cir.2013) (requiring proof that all four prongs of preliminary injunction standard be met before injunctive relief can be issued). Thus, the
In any event, substantial questions have been raised in this matter about why the defendant did not identify a location for educational services for the plaintiff until February 2014, despite being ordered to do so by this Court almost eighteen months earlier, in August 2012. See Eley I, 2012 WL 3656471, at *11. The defendant does not attempt to address those questions and, instead, relies on an exchange of emails examined in the HOD under appeal to declare that the defendant is likely to succeed on the merits. See Def.'s Opp'n at 18.
Second, the defendant claims that it will suffer irreparable injury because allowing the plaintiff to remain at TLCIS "is a fundamental violation of the IDEA" and, according to the defendant, TLCIS is a more restrictive environment for the plaintiff than High Road Academy. Def.'s Opp'n at 19. This argument fails, since, as noted, multiple HODs and a prior ruling of this Court have determined that TLCIS is an appropriate placement for the plaintiff.
The defendant offers no argument whatsoever as to the third factor, regarding the balance of equities, and the reason for this silence is obvious. Given the plaintiff's ongoing struggle over the last four years to obtain a FAPE from the defendant, with the majority of administrative decisions and Court opinions in the plaintiff's favor, and the long delay until the middle of the most recent school year in the defendant's designation, for the first time, of a location for implementation of the IEP, the equities decidedly do not favor the defendant.
Finally, the defendant pays lip service to the fourth factor, whether the injunction is in the public interest, see Def.'s Opp'n at 19, but conflates its discussion of this factor with its discussion of irreparable harm, see id. at 19-21. The defendant argues that because the IDEA requires all students to be educated in the "least restrictive environment," Def.'s Opp'n at 19 (quoting 20 U.S.C. § 1412(a)(5)), it is not in the public interest to allow the plaintiff to remain at a placement the defendant asserts is more restrictive than High Road Academy. See id. at 22. The defendant offers no authority for why allowing the plaintiff merely to continue receiving educational services where he is already receiving services harms the public interest. Common sense would dictate that if the plaintiff's current educational placement, TLCIS, has been found appropriate, as this Court and multiple HODs have found, then the public interest in providing a FAPE to the plaintiff is furthered by that placement. Therefore, the Court finds that the public interest factor weighs against the defendant and in favor of the plaintiff continuing to receive a FAPE at TLCIS.
Once again, this Court is called upon to enter an Order to protect the plaintiff's statutory rights under the IDEA. In this instance, the plaintiff's request merely to remain at the same school where he has been receiving instruction for the past four years, at the defendant's expense, is expressly contemplated by the plain text of the IDEA's stay-put provision. The plaintiff's request for injunctive relief under 20 U.S.C. § 1415(j) is granted. The defendant shall fund the provision of instruction and related services prescribed in the plaintiff's May 2013 IEP, at The Learning Community International School, facilitated by School Finders, at their customary rates, until the pending judicial proceedings regarding the February 2014 HOD are completed.
An appropriate Order accompanies this Memorandum Opinion.
