Opinion
00-Civ.-4169 (WGB).
October 4, 2000
Stephen Edelstein, Esq., SCHWARTZ SIMON EDELSTEIN CELSO KESSLER, LLP., Florham Park, NJ, Attorneys for Plaintiff, Chester Township Board of Education.
Rebecca K. Spar, Esq., COLE, SCHOTZ, MEISEL, FORMAN LEONARD, Hackensack, NJ, Attorneys for Defendants, J.R. and J.R. on behalf of E.R.
OPINION
This matter arises under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. ("IDEA"). Plaintiff Chester Township Board of Education ("Chester" or "School District") moves for a preliminary injunction to stay the final decision entered by Administrative Law Judge Margaret Hayden ("ALJ") on August 11, 2000 ("ALJ's Decision"). Defendants, J.R. and J.R. on behalf of E.R. ("Defendants" or "Parents") cross move to implement the ALJ's Decision.
One of the purposes of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasized special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A).
Defendant obtained the Court's permission to file an overlength opposition brief of 55 pages. Over 30 of those pages contain a recitation of facts that may be germane to what the School District ultimately seeks, i.e., reversal of the ALJ's decision; however, much of those facts do not bear on the present application for a stay of the ALJ's decision.
For the reasons set forth below, the Court denies Plaintiff's motion for a stay and grants Defendant's cross motion to implement the ALJ's Decision.
I. BACKGROUND
A. Facts
Defendants J.R. and J.R. are the parents of E.R., a minor child, age 13. Defendants are residents of the Township of Chester. E.R. was born on June 3, 1987. She has been diagnosed with Down Syndrome and has been classified as educable mentally retarded. According to a psychological evaluation that was conducted in September of 1997, E.R. has an IQ of approximately 36 and has language skills in the 3 year, 3 to 5 month range.
The Individual Education Plan ("IEP") developed by the School District's Child Study Team for the 1997-98 school year provided for placement in some regular second grade classes (science, social studies, and some related arts), replacement instructions (reading, language arts, and mathematics), and for some "pull out" services (speech, occupational therapy and physical therapy).
For the 1998-99 school year, the School District recommended that E.R. be placed out of district in a specialized school. Nevertheless, because of the Parents' insistence, E.R. was placed in third grade at Bragg School (in-district school containing grades three to five) in a Perceptually Impaired class with a full time aide. E.R. was mainstreamed for science and social studies, physical education, art, music, library and lunch. She was pulled out for speech and language three times per week, occupational therapy three times per week, and adaptive physical education one time per week during regular gym class. During the 1998-99 school year, there were 53 incidents of aggressive behavior by E.R. documented by the staff. Those incidents included biting, hitting, kicking, "toileting issues," digging nails into staff, refusing to leave an area, and throwing items such as food, shoes, and chairs.
For the 1999-2000 school year, the School District proposed an IEP in which E.R. would have been removed from Chester Public Schools and placed in an out-of-district, self-contained program, effective September 1999. The Parents, however, continued to insist upon E.R.'s attendance in the School District. E.R.'s fall 1999 schedule consisted of general education classes for homeroom, social studies, science, health, library, Spanish, art, music and physical education. She attended the resource class for replacement instruction in integrated language arts for an hour and a half in the morning and one hour for math in the afternoon. E.R. was pulled out three times per week for speech and one time a week for occupational therapy. E.R. also had 30 minutes a day computer time, half hour for play outside and half hour for lunch.
From September 7, 1999 to October 14, 1999, there were 37 documented incidents of aggressive, violent, or otherwise inappropriate behavior by E.R. The final incident on October 14, 1999, involved an incident that resulted in the School calling E.R.'s mother to take her home and suspending E.R. indefinitely pending a hearing.
By agreement of the parties, home instruction began on October 26, 1999. Pursuant to November 19, 1999 and December 19, 1999 Orders of the ALJ, the School continued E.R.'s home instruction and also developed opportunities for E.R. to interact with nondisabled peers. Consequently, on January 11, 2000, E.R. began attending sixth grade regular education class once per week at Black River Middle School. She was there with the regular gym teacher as well as an adaptive physical education instructor. The home instruction continued as the alternative interim placement during the pendency of the hearing before the ALJ.
B. Procedural History
On July 28, 1999, the School District had filed a request for a due process hearing. The request was withdrawn while the parties attempted to mediate the dispute, but the request was subsequently reinstated. The hearings on the July 1999 due process petition began March 8, 1999 and continued on March 28, April 14, 26, 28, May 4, 22, 23, June 12, 23, and July 10 and 12, 2000. The record was held open for written summations until July 24, 2000, at which time the record was closed.
On August 11, 2000, Judge Hayden issued a Final Decision. In it, she denied the School District's request for an Order approving its proposed IEP and instead, ordered:
1. that the IEP team meet within 15 days from receipt of Final Decision to prepare an IEP for E.R. with the necessary services and accommodations to foster her participation in the regular education setting in the sixth grade of Black River Middle School;
2. that the District hire a consultant with expertise in successfully including students like E.R. in general education settings to provide initial and ongoing training to the staff on inclusion, including but not limited to curriculum modification, functional skills curriculum, data collection, integration of related services, social skills training, and peer support;
3. that the District hire an expert in positive behavior interventions for students at E.R.'s cognitive level to develop and oversee the systematic implementation of a behavioral implementation plan. The consultant must train the staff and direct the consistency of the program throughout E.R.'s day.
On August 25, 2000, the School District filed a complaint in this Court seeking to appeal Judge Hayden's decision. The School District contemporaneously filed an emergent application to stay the August 11, 2000 Final Decision of Judge Hayden. Oral argument on the School District's application to stay was held on September 29, 2000.
At oral argument, the Court requested additional briefing by the School District only on the isolated issue of the applicability of C.F.R. § 300.514. The School District apparently misunderstood this directive as permission to file supplemental briefing on other issues as well; because no such permission was given by the Court, those arguments and cases raised for the first time in the School District's supplemental briefing were not considered by the Court in rendering this Opinion.
II. IDEA
Judge Hayden's Decision is a final decision pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.510 (1999) and is therefore appealable by filing a complaint and bringing a civil action either in the Superior Court of New Jersey or in a federal district court. Therefore, the Court has jurisdiction over this matter under 28 U.S.C. § 1331.
A. Stay Put Provision of IDEA
The "stay put" provision of the IDEA provides, in pertinent part:
[D]uring 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 such child. . . .20 U.S.C. § 1415(j). This is often referred to as the "pendent" placement. Section 1415(j) authorizes a statutory injunction that preserves the status quo of a child's current educational placement while due process or judicial proceedings pursuant to the IDEA take place. Woods, on Behalf of T.W. v. New Jersey Department of Education, et al., 20 IDELR 439 (3d Cir. 1993) (Becker, J.); Doe v. Brookline School Committee, 722 F.2d 910, 915 (1st Cir. 1983). The language of 1415(j) is unequivocal and admits of no exceptions. Honig v. Doe, 484 U.S. 305, 323 (1987). The "stay-put" provision is designed to ensure stability and consistency in a disabled child's education when that consistency may be elusive. Doe, 722 F.2d at 915.
Before the IDEA was reauthorized in 1997, the stay put provision was found at 20 U.S.C. § 1415(e)(3). The new citation contains essentially the same language as the old version.
As explained by the Third Circuit, in Drinker by Drinker v. Colonial School Dist., 78 F.3d 859 (3d Cir. 1996), "`Congress very much meant to strip schools of the unilateral authority that they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.'" Id. at 864 (citing Honig v. Doe, 484 U.S. 305, 323 (1988); School Comm. v. Dep't of Educ., 471 U.S. 359, 373 (1985) ("We think at least one purpose of [the stay put provision] was to prevent school officials from removing a child from the regular public school classroom over the parents' objection pending completion of the review proceedings")). "The provision represents Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placements is ultimately resolved." Drinker, 78 F.3d at 864.
Accordingly, the stay put provision is, in effect, an automatic preliminary injunction. Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982) ("[t]he statute substitutes an absolute rule in favor of the status quo for the court's discretionary consideration of the factors of irreparable harm and either a likelihood of success on the merits or a fair ground for litigation and a balance of hardships"). As a result, the traditional standards a district court normally considers in conjunction with the issuance or denial of a preliminary injunction — likelihood of success on the merits, balance of hardship, etc. — are inapposite to an application involving IDEA's "stay put" provisions.Drinker, 78 F.3d at 864 ("Once a court ascertains the student's current educational placement, the movants are entitled to an order without satisfaction of the usual prerequisites to injunctive relief").
Indeed, the Supreme Court, noting that Congress did not include any exceptions to the stay put provision, concluded that the stay put provision "means what it says." Honing, 484 U.S. at 325. The Court, however, also recognized that
school officials are entitled to seek injunctive relief under § 1415(e)(2) in appropriate cases. In any such action, § 1415(e)(3) effectively creates a presumption in favor of the child's current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others.Id. at 328; see also School District of Philadelphia v. Stephan M., 1997 WL 89113, at *3 (E.D. Pa. Feb. 27, 1997) ("[t]o obtain injunctive relief from the stay put requirement for dangerousness, a school district must also show it `has done all that it reasonably can to reduce the risk that the child will cause injury'") (citing Light v. Parkway C-2 School District, 41 F.3d 1223, 1228 (8th Cir. 1994)). The School District suggests that this case is an appropriate case for the Court to provide relief under the traditional standards for preliminary injunctive relief. Although the School District sets forth examples of numerous disruptive behavior by E.R., it does not expressly state that it seeks injunctive relief based on its contention that E.R. is dangerous. In any event, the School District has not met this burden; therefore, the Court declines to apply the traditional standards for preliminary injunctive relief. Accordingly, the proper inquiry is what the appropriate pendent placement is as dictated under the stay put provision.
At the time of the Supreme Court's decision, §§ 1415(c) and (e)(2) authorized both the parents and the local educational agency, after due process hearings, to seek further administrative review and, where that proves unsatisfactory, to file a civil action in any state or federal court.
B. Identification of Pendent Placement
Typically, the stay put provision is invoked by a child's parents where the parents disagree with a change in placement proposed by the school district. In that case, in determining a student's "current educational placement," the Court looks to the terms of the IEP, which, under Third Circuit law, is dispositive of the child's current educational placement. Susquenita School District v. Raelee S. by Heidi S. and Bryon S., 96 F.3d 78, 83 (3d Cir. 1996); Woods, 20 IDELR, at 440 ("as the purpose of the `stay put' is to preserve the status quo of the child's functioning placement and program until the underlying IDEA litigation is resolved, unless there is an effective waiver of the protection of the `stay put,' the dispositive factor in deciding a child's `current educational placement' should be the [IEP]."); see also Drinker, 78 F.3d at 864 (Woods decision, though unpublished, provides a "paradigm" for legal analysis of IDEA questions).
This case, however, is unlike the typical case in which a child's pendent placement is at issue because it is the parents who proposed change in the child's placement. Compare Drinker, 78 F.3d 859. Therefore, the pendent placement is not determined by the IEP; instead, the ALJ's Decision dictates where E.R.'s proper pendent placement is during the pendency of this appeal under the stay put provision. The Third Circuit has held that a final administrative decision in favor of the parents' position in an administrative hearing constitutes an "agreement" between the state and the parents to change the "then current educational placement" and creates a new pendent placement in accordance with the plain language of the stay put provision.Susquenita, 96 F.3d 78; 34 C.F.R. § 300.514(c); see also St. Tammany Parish School Bd. v. State of La., 142 F.3d 776 (5th Cir. 1998) (concluding that decision of state administrative review panel constituted an "agreement" between state and parents for purpose of IDEA's stay put provision); Clovis Unified Sch. Dist. v. California Office of Amin. Hearings, 903 F.2d 635 (9th Cir. 1990) (ruling that state administrative decision in favor of parents' unilateral placement decision created a new pendent placement for purposes of stay put provision); Board of Education of Montgomery County v. Brett Y., 959 F. Supp. 705 (D. Md. 1997) (holding state administrative decision in favor of parents' position constituted agreement by state to a change in educational placement under stay put provision, which entitled parents to a preliminary injunction requiring school district to implement administrative decision pending school district's appeal to district court); Brad J. v. Commonwealth of Pennsylvania Dep't of Educ., 22 IDELR 712, 716-717 (E.D. Pa. 1995).
34 C.R.F. § 300.514(c) provides:
If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section.
Paragraph (a) provides in pertinent part:
during the pendency of any administrative or judicial proceeding regarding a complaint under § 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.
In Susquenita, the parents of Raelee, a learning disabled student, rejected the school district's proposed IEP and Notice of Recommended Assignment and instead, withdrew their child from Susquenita and placed her in a private school for the learning disabled. The parents then invoked their right to a due process hearing under the IDEA. The hearing officer's decision that Susquenita was the appropriate placement for Raelee was reversed by a three member state special education appeals panel. The panel found that the proposed IEP was deficient, that the private school program was appropriate for Raelee, that the parents were entitled to reimbursement for tuition and transportation, and that the pendent placement in any future disputes would be the private school.
Subsequently, Susquenita filed a complaint in federal court appealing the decision of the special education appeals pursuant to 20 U.S.C. § 1415(e)(2). Susquenita contemporaneously moved for a stay of the administrative decision to the extent that it required the school to reimburse the parents for expenses and determined the pendent placement to be the private school. After evaluating the (1) likelihood of success on the merits; (2) irreparable harm to movant; (3) harm to third parties; and (4) public interest, the district court denied Susquenita's request for a stay. The Third Circuit affirmed.
Section 1415(e)(2) can now be found at 20 U.S.C. § 1415(i)(2)(A).
The Third Circuit only addressed whether the administrative panel and district court had acted properly in determining that a new pendent placement under IDEA's stay put was created when the administrative panel entered a ruling in favor of the student/parents. The Circuit did not consider whether the trial court had abused its discretion in applying the four factor preliminary injunction test.
Although the parents did not dispute that at the time of Raelee's transfer to the private school, the public school would have been the appropriate pendent placement within the meaning of the IDEA, the Third Circuit agreed with the parents' contention that the pendent placement changed when the state education appeals panel ruled in the parents' favor. Id. at 83. In so concluding, the appeals court observed that
[i]n [School Comm. Of the Town of Burlington v. Dep't of Educ., 471 U.S. 359 (1985)], the Supreme Court noted that while parents who unilaterally remove their child from a prior placement "contravene the conditional command of § 1415(e)(3) that `the child remain in the then current educational placement,' . . . we note that the section calls for agreement by either the state or the local educational agency. The [appellate panel]'s decision in favor of the [parents] and the [private school] placements would seem to constitute agreement by the state to the change of placement."Id. at 83-84 (citing Burlington, 471 U.S. at 372).
The Circuit flatly rejected Susquenita's contention that "a pendent placement appropriate at the outset of administrative proceedings is fixed for the duration of the proceedings and cannot be altered by an administrative ruling in the parents' favor." Id. at 84. The court reasoned that if it accepted the school's position, then an administrative decision "in favor of the parents [would be] of no practical significance unless and until it is affirmed by a decision that cannot be or is not appealed." Id. at 84. Further, the Circuit noted:
[S]ection 1415(e)(3) was drafted to guard the interests of parents and their children. We cannot agree that this same section should be used here as a weapon by the Susquenita School District to force parents to maintain a child in a public school placement which the state appeals panel has held inappropriate.Id.
The School District relies on D.B. v. Ocean Township Bd. of Educ., 985 F. Supp. 457 (D.N.J. 1997), aff'd, 159 F.3d 1350 (3d Cir. 1998), to argue that Susquenita is not controlling under the facts of this case. In that case, after theSusquenita decision was rendered, the parents renewed their motion for injunctive relief to enforce the decision of the ALJ in their favor. The court indicated that it would prepare a Supplemental Opinion, in which it would explain the basis of its view that Susquenita was not controlling of the facts before it; however, the court did not do so. Consequently, this Court cannot be persuaded by an opinion that has never been written.
Therefore, the Court finds that Susquenita is controlling here, and in accordance with the Third Circuit's ruling in that case, the ALJ's Decision in favor of the Parents constitutes an "agreement" between the state and the Parents to create a new pendent placement. This Court, however, does sympathize with the school district's plight in having to implement the ALJ's decision during the pendency of this appeal. The burden placed on the teachers and other students is substantial. But it is Congress, not this Court, that has determined where this burden shall lie. See Susquenita, 96 F.3d at 87.
As a final matter, the School District argues that compliance with the ALJ's Decision is "impossible" for a number of reasons. First, when the School District, on August 25, 2000, filed its emergent application to stay the ALJ's Decision, the School District argued that one of the reasons that an IEP meeting could not be convened by August 29, 2000, was because it could not require any teacher to return for a meeting during the summer. That argument is now moot because the summer is now over.
The School District also contends that it needs time to locate and hire the consultants and that those consultants need to be hired before an IEP meeting is convened. Further, the School District argues that the IEP for E.R. must include the level of training to be provided to the staff members and must outline a time frame in which these activities will take place. Although the School District's views on when the IEP meeting can be convened and what the IEP must contain may differ from what is set forth in the ALJ's Decision, this Court does not see how those differences in opinion make it "impossible" for the School District to comply with the ALJ's Decision.
III. CONCLUSION
For the foregoing reasons, Plaintiff's application for a preliminary injunction staying the final decision entered by the ALJ is denied. Defendants' cross motion for immediate implementation of the ALJ's decision pending the outcome of this appeal is granted. With respect to the ALJ's order that the IEP team meet within 15 days from receipt of Final Decision to prepare an IEP for E.R., Plaintiff is ordered to implement that order within 15 days from receipt of this Opinion and accompanying Order.