JOHN C. NIVISON, Magistrate Judge.
Plaintiff, as a parent of a minor child, JM, alleges the Perry School Department violated due process and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.
Following a review of Plaintiff's motions, Defendant's responses, and the record, I grant the motion to supplement the record, and I recommend the Court deny the motion for a stay-put order.
Following a scheduling conference, the Court issued a scheduling order that in part stated:
(Scheduling Order, ECF No. 25 at 1-2.) In response to the scheduling order, Plaintiff filed a notice informing the Court he intended only to cite the hearing officer's dismissal of the request for a hearing as evidence in support of Plaintiff's due process claim. (Notice, ECF No. 26.)
The Maine Department of Education filed the IDEA administrative record on two consolidated cases (## 18.008H, 18.029H). (IDEA Administrative Record ("Record"), ECF No. 27, Record Vol. I at i (Index), 101 (Order).)
Case #18.008H is Plaintiff's due process hearing request filed on July 24, 2017. (Order, Record Vol. II at 327.) The hearing officer's prehearing report and order described the issue in the matter as follows: "Did Perry Public Schools deny Student a free, appropriate, public education (FAPE) during the two year period between July 24, 2015 and July 24, 2017?" (Prehearing Report and Order, Record Vol. I at 163.)
Case #18.029 is Plaintiff's due process hearing request, filed on October 6, 2017. (Order, Record Vol. II at 327.) The hearing officer found Plaintiff had requested certain independent evaluations, and Defendant had refused the request. (Order, Record Vol. II at 331.) The hearing officer's prehearing report and order described the issue in the matter as follows: "Were the psychological and speech-language evaluations conducted by Perry Public Schools (i.e., those which were discussed at the October 5, 2017 IEP Team meeting) inadequate and inappropriate thereby warranting independent evaluations of same at public expense?" (Prehearing Report and Order, Record Vol. I at 163.)
In Plaintiff's motion to supplement the record, Plaintiff requests the Court order the Department to provide the complete administrative record in the case that concerns the 2017-2018 academic year (Case # 18.060H).
Defendant does not object to Plaintiff's proposed additions. (Response, ECF No. 33 at 2.) Defendant proposes several additional emails be added to the record for completeness. (Id.; Attachment, ECF No. 33-1.) Plaintiff did not file a reply in support of his motion to supplement the record, and thus Plaintiff has not objected to Defendant's proposed additions.
Without objection from either party, Plaintiff's and Defendant's proposed additions are made part of the record. See Johnson v. Boston Public Schools, 906 F.3d 182, 190-91 (1
Plaintiff asks the Court to issue a "stay-put" order, pursuant to 20 U.S.C. § 1415(j), concerning JM, who is subject to the IDEA, and Plaintiff's two other children. (Motion, ECF No. 28 at 1.) Title 20 U.S.C. § 1415(j) provides:
In late 2015, Plaintiff moved with his children from Perry to Eastport, and they have resided in Eastport since the move. (Affidavit of Elizabeth Cushing, ECF No. 30-1 at 3 ¶¶ 8-10.)
The Court has jurisdiction over Plaintiff's claims regarding JM, pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); 28 U.S.C. § 1343(a)(4) ("The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . to secure equitable or other relief under any Act of Congress providing for the protection of civil rights. . . ."); and 20 U.S.C. § 1415(i)(3)(A) ("The district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy.") See M.M. v. Paterson Bd. of Educ., 736 F. App'x 317, 319 n.3 (3d Cir. 2018) (affirming the denial of the parent's request for preliminary injunctive relief to promote the child to high school). Plaintiff, however, asserts no actionable claim on behalf of his two other children, who are not subject to the IDEA.
In addition, because Plaintiff voluntarily and unilaterally relocated with JM from Perry to Eastport, Plaintiff is not entitled to a stay-put order for JM. "The purpose of the stay-put provision is to `strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school' and to protect children from any retaliatory action by the local educational agency." Millay v. Surry School Dept., 584 F.Supp.2d 219, 228 (D. Me. October 28, 2008) (quoting Honig v. Doe, 484 U.S. 305, 323 (1988) (emphasis in original). In this case, the Perry municipal school unit did not take any action to exclude JM from school or to alter his independent education plan. Instead, Plaintiff relocated to a different municipal school unit (Eastport). Through his motion, Plaintiff asks the Court to issue a stay-put order under § 1415(j) to require the school unit in the municipality from which he moved (Perry) to continue to educate JM.
The issue is similar to the issue presented in J.F. v. Byram Twp. Bd. of Educ., 629 F. App'x 235, 238 (3d Cir. 2015), where the Third Circuit concluded that "because J.F.'s parents unilaterally relocated him from Westwood to Byram, the stay-put provision is inoperative and Byram meets its obligation by complying with § 1414(d)(2)(C)(i)(I)." See also Michael C. ex rel. Stephen C. v. Radnor Twp. Sch. Dist., 202 F.3d 642, 651 (3d Cir. 2000) (holding that "where a parent unilaterally removes a child from an existing placement determined in accordance with state procedures, and puts the child in a different placement that was not assigned through proper state procedures, the protections of the stay-put provision are inoperative until the state or local educational authorities and the parents agree on a new placement").
The reasoning and conclusion of the Third Circuit are sound. As the Court in Byram noted, when a family moves to another school district within the state, the new school district becomes responsible for providing an independent education plan in accordance with 20 U.S.C. § 1414(d)(2)(C)(i)(I)
Pursuant to § 1414(d)(2)(C)(i)(I), therefore, when a student transfers to a different school unit, the new school unit is responsible for providing the independent education plan. Section 1414(d)(2)(C)(i)(I) thus confirms that when a student voluntarily transfers from one municipal school unit to another, § 1415(j) does not apply. Indeed, to require a municipal school unit to provide a student's education after the student moves to another municipal school unit would, in many instances, be impractical.
In sum, because Plaintiff and JM moved from one municipal school unit to another, § 1414(d)(2)(C)(i)(I), rather than § 1415(j), governs. Accordingly, Plaintiff is not entitled to a stay-put order under § 1415(j).
Based on the foregoing analysis, I grant Plaintiff's motion to supplement. (ECF No. 29.) I also recommend the Court deny Plaintiff's motion for a "stay-put" order under 20 U.S.C. § 1415(j).