Summary
In K.T. v. West Orange Bd. of Educ., No. 01-CIV-3208, 2001 WL 1715787 (D.N.J. Oct. 23, 2001), the plaintiff was seeking a preliminary injunction from the district court according to section 1415(j), during the pendency of the action before the court challenging the child's proposed educational placement.
Summary of this case from Termine ex rel. Termine v. William S. Hart Union High School Dist.Opinion
01-Civ-3208 (WGB).
October 23, 2001
Esther M. Canty-Barnes, Esq., Rutgers University School of Law, Newark, New Jersey, Attorneys for Plaintiff.
Stephen J. Christiano, Esq., Board of Education Attorney, West Orange, New Jersey, Attorney for Defendants.
OPINION
This matter arises under a number of Federal Statutes, including the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. ("IDEA"). The matter is now before the Court on Plaintiff K.T.'s application, on behalf of herself and her minor son S.W., for a preliminary injunction. Specifically, K.T. seeks to enforce IDEA's "stay put" provision, and return her son to the last place where he received a public education. Defendants object, arguing that IDEA's "stay put" provision is inapplicable to this case. For the reasons set forth below, the Court grants Plaintiff's request.
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 emphasizes 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).
I. BACKGROUND
A. Facts
S.W. is a six-year-old boy who began attending kindergarten at the Washington School in September, 2000. The Washington School is a public elementary school operated by Defendant West Orange Board of Education ("the Board"). In October, 2000, S.W. was referred to the Child Study Team ("CST") for evaluation because of concerns regarding his academic progress and behavior.
With the consent of K.T., an initial evaluation was conducted by the CST to determine if S.W. was eligible for special education and related services. The evaluation included social, psychological, educational, speech, and language assessments, and was completed on November 13, 2000. At the request of the Board, S.W. also underwent neurodevelopmental and occupational therapy evaluations in December, 2000 and January, 2001.
A conference was held on January 18, 2001 to determine if S.W. was eligible for special education and related services. Prior to this conference, the CST allegedly failed to provide K.T. with copies of the reports from S.W.'s evaluations. This allegedly prevented K.T. from reviewing the evaluation results prior to the conference. The Eligibility Conference Form completed by the CST identified S.W. as eligible for special education and related services, but allegedly failed to specify the eligibility criterion he met. K.T. consented to S.W.'s classification as eligible for special education and related services.
The Individualized Educational Plan ("IEP") meeting was also held on January 18, 2001. The Board recommended placing S.W. in a "self-contained out of district" program, but at the time allegedly failed to identify a specific placement. K.T. consented to this general recommendation for an out of district placement, and signed the forms for implementation of the proposed IEP.
After the meetings on January 18, the Board sought to place S.W. in a program for autistic children. The Board found a placement it deemed suitable for S.W. at the Jersey City Regional Day School. The Jersey City Regional Day School is a public school that serves children with moderate to severe autism. K.T. was familiar with the program at the Day School because her brother, who is autistic, attended the school when he was younger. K.T. objected to S.W.'s placement at the Day School. In K.T.'s estimation the placement was improper for S.W. because she did not believe S.W. to be autistic.
On February 27, 2001, after K.T. refused initial placement of her son at the Regional Day School, the Board filed for a due process hearing, so as to obtain implementation of the IEP for S.W. The due process hearing was held on March 30, 2001. K.T. appeared pro se. On April 24, 2001, after a hearing, Administrative Law Judge Daniel McKeown determined that S.W.'s current placement (at the Washington School) was "not appropriate," and "must be corrected now." (ALJ Decision, p. 5). In keeping with the foregoing conclusion, ALJ McKeown ordered that S.W. be placed at the Regional Day School, because "placement at the Regional Day School in Jersey City is more likely than not the appropriate placement for S.W. at the present time." (ALH Decision, p. 5). K.T. allegedly failed to receive a copy of the ALJ's Decision.
On May 1, 2001 the Board sent K.T. a formal "Placement Letter," directing that S.W. would be assigned to the Jersey City Regional Day School as of May 7, 2001. Rather than send S.W. to a placement she objected to, K.T. removed S.W. from school in May, 2001. S.W. has not received any educational services from the Defendant Board since May, 2001. At this time, S.W. is not enrolled in any school for the Fall term. In July, 2001, K.T. filed this action against Defendants, pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, 20 U.S.C. § 1400 et seq., 29 U.S.C. § 790 et seq., and 42 U.S.C. § 12130 et seq.
Among other things, Plaintiff K.T. now seeks placement of S.W. at the Washington School. In her request for a preliminary injunction, KT argues that IDEA's "stay put" provision, 20 U.S.C. § 1415(j), mandates the placement of S.W. at the Washington School during the pendency of this proceeding. K.T. contends that the Washington School is the proper "pendent placement" for S.W.
The Board opposes using the "stay put" provision to return S.W. to the Washington School. The Board argues that IDEA's "stay put" provision is inapplicable here because of Plaintiff's failure to directly appeal ALJ McKeown's Order. Further, the Board argues that even if the "stay put" provision were applicable, given K.T.'s consent to the IEP in this case the appropriate "pendent placement" for S.W. is not the Washington School, but the Jersey City Regional Day School.
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). The "then current" placement 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 otherwise 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.
Mindful of the foregoing, the "stay put" provision is essentially 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").
Defendant Board contends the "stay put" provision is inapplicable to this case, because Plaintiff has not styled her Complaint as an appeal that seeks to reverse the ALJ's decision and his order of placement. Defendant contends that because IDEA's "stay put" provision can only be enacted during the pendency of an IDEA proceeding, absent an appeal of ALJ McKeown's decision there is no "pending proceeding" in this case for purposes of IDEA's "stay put" provision.
Given that ALJ McKeown's opinion is a final decision pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.510 (1999), K.T. would have been entitled to appeal it by filing a complaint and bringing a civil action in this Court. Specifically, 20 U.S.C. § 1415(i)(2) would have allowed K.T. to bring a civil action in this Court to directly challenge the ALJ's order. The Board correctly notes that Plaintiff's complaint is not couched in terms of such an appeal.
Even though K.T's Complaint is not styled as an appeal of ALJ McKeown's opinion, on its face it does directly challenge theresult reached by the ALJ's decision, and by way of the relief sought effectively seeks to eviscerate his Order. Regardless of whether K.T.'s complaint in this action is an appeal of the ALJ's Order, noting the direct challenge to S.W.'s proposed educational placement, it escapes the Court how K.T.'s action could be considered anything but one brought "pursuant to" IDEA. Given that IDEA's "stay put" provision applies "during the pendency ofany proceedings conducted pursuant to" 20 U.S.C. § 1415 (emphasis added), the Court concludes that an application of the "stay put" provision in this case would be appropriate, even if this action is not an appeal of the administrative proceedings below.
B. Identification of "Pendent Placement"
Because the "stay put" provision requires that a child remain at the "then current" (or "pendent") educational placement for the duration of an IDEA proceeding, for purposes of applying 20 U.S.C. § 1415(j) the Court must determine what the appropriate "pendent placement" for S.W. is. Under Third Circuit law, when parents challenge a proposed change in placement suggested by the school district and invoke the "stay put" provision, the terms of the IEP are 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 (relying on unpublished Woods decision).
Because the IEP in this case provides for S.W.'s education at the Jersey City Regional Day School, Defendants argue that the Day School is S.W.'s "current educational placement." This Court disagrees. As stated by the Third Circuit in Drinker:
Because the term connotes preservation of the status quo, it refers to the operative placement actually functioning at the time the dispute first arises. If an IEP has been implemented, then that program's placement will be the one subject to the stayput provision. And where . . . the dispute arises before any IEP has been implemented, the `current educational placement' will be the operative placement under which the child is actually receiving instruction at the time the dispute arises.Drinker, 78 F.3d at 867-868, citing Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir. 1990) (emphasis added).
Although K.T. agreed to the implementation of an IEP for S.W., when she realized it would require placing him at the Jersey City Regional Day School, she objected to it. Because of her objections and her subsequent withdrawal of S.W. from school, the IEP was never implemented. Given that there was no IEP in place prior to the development of the IEP now in dispute, for purposes of applying the "stay put" provision this Court must look to "the operative placement under which the child [was] actually receiving instruction at the time the dispute [arose]." Id.
This dispute arose no later than on April 24, 2001 when ALJ McKeown ordered that S.W. be placed at the Jersey City Regional Day School, over K.T.'s objections. It is undisputed that on April 24, 2001, S.W. was still a student at the Washington School. Accordingly, the Court concludes that the Washington School is S.W.'s "pendent placement" for purposes of IDEA's "stay put" provision. Given that conclusion, this Court will order that S.W. be immediately placed at the Washington School or upon consent of the parties be placed at another appropriate educational facility that is agreeable to both Plaintiff and Defendants.
III. CONCLUSION
For the foregoing reasons, pursuant to IDEA's "stay put" provision, Plaintiff's application for a preliminary injunction requiring Defendants to educate S.W. at either the Washington School or another mutually agreeable educational facility is granted.
An appropriate Order follows.