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WORK v. MCKENZIE

March 31, 1987

Molly Work, et al., Plaintiffs
v.
Floretta Dukes McKenzie, et al., Defendants



The opinion of the court was delivered by: PENN

PENN, U.S.D.J. MEMORANDUM ORDER

 The plaintiffs filed this action pursuant to the Education for All Handicapped Children Act (EHA), 20 U.S.C. § 1400 et seq. They appeal from an administrative determination that the Prospect Learning Center (Prospect), a District of Columbia Public Schools (DCPS) special education facility represents an appropriate placement for Molly Work and they ask for injunctive relief requiring DCPS to place and fund Molly at the Lab School of Washington (Lab School) and for a declaratory judgment that the defendants' refusal to provide the "related service" of transportation to Molly violates the EHA, its implementing regulations, and the Education Department General Administration Regulations (EDGAR).

 The case is now before the Court on the plaintiff's motion for a preliminary injunction in which they seek to have this Court order the defendants to provide transportation to and from Molly's home and the Lab School.

 I

 Molly is a 12 year old, multi-handicapped child who is eligible for special education and related services pursuant to the EHA. The underlying facts as set forth in the complaint are as follows: On or about March 5, 1986, Molly's parents filed a Confidential Student Services Form (CSSF) with DCPS requesting special education and related services. The plaintiffs allege, and the Court accepts for the purposes of the pending motion, that DCPS failed to process Molly's case within the prescribed timelines. On May 30, 1986, a due process hearing was held after which a determination was filed holding that DCPS had denied Molly an appropriate educational program by failing to meet the time lines. DCPS proposed a program for Molly in August 1986 when the agency proposed Prospect. The plaintiffs allege that because DCPS failed to propose a placement for Molly within a reasonable time after the due process hearing, they were forced to seek an appropriate program on their own. The plaintiffs located the Lab School, a private special education day school.

 After DCPS proposed Prospect, the plaintiffs requested another due process hearing to challenge that proposal. The hearing was held on September 8, 1986, and on September 19 the hearing officer issued a determination finding that Prospect represented an appropriate placement for Molly.

 The plaintiffs placed Molly at the Lab School in September 1986, and she remains there where tuition is being paid by her parents. In the pending motion, the plaintiffs seek to have the Court order the defendants to provide transportation for Molly to and from the Lab School. Plaintiffs' request is based on two contentions. First, they argue that the EHA and its implementing and related regulations require DCPS to provide transportation to the Lab School as a related service even though Molly was unilaterally placed in the school by her parents. Second, they argue that they are entitled to injunctive relief requiring transportation because in the absence of such relief, they will suffer irreparable injury.

 II

 The plaintiffs contend that the EHA requires DCPS to provide the related service of transportation even though they unilaterally placed Molly at the Lab School.

 The EHA requires participating states to provide all handicapped children with a free appropriate public education. 20 U.S.C. §§ 1400(c) and 1412(1). The statute and its implementing regulations provide an elaborate scheme for the identification of children with handicaps, the designation of programs appropriate for their unique needs, and procedural safeguards to protect their rights. Not only must the public school system provide special education services, it must also provide related services, and such related services may include transportation. 20 U.S.C. § 1401(17). In providing special education, DCPS may utilize appropriate public school programs or may place and fund a handicapped child in a private school. 34 CFR §§ 300.400 - 300.403. If a handicapped child has been given a free appropriate public education, and the parents nevertheless choose to place the child in a private school, DCPS is not required to pay for the child's education at the private school, but it is required to make services available to the child as proscribed under 34 CFR §§ 300.450 - 300.452. Id. § 300.403(a). In the event DCPS and the parents disagree, the question of financial responsibility and the appropriateness of the special education program are subject to a due process hearing. Id. § 300.403(b).

 The regulations, Section 300.451(a), provide that even though a parent unilaterally places a child in a private school that:

 
(a) To the extent consistent with their number and location in the State, provision is made for the participation of private school handicapped children in the program assisted or carried out under this part by providing them with special education and related services; and . . .

 Plaintiffs argue that the above section requires DCPS to provide the related services of transportation to the extent possible. Here, they contend that since DCPS has placed and funded other children at the Lab School and undoubtedly provides transportation for some or all of those children, it is convenient and appropriate for the school system to provide such transportation to Molly since a school bus passes within a few blocks of her home. They read the regulations as establishing an absolute requirement that DCPS provide such transportation, although they also seem to suggest that the public school may not be required to provide such transportation where either the child or the private school is out of the way or not located close to an established school bus route.

 DCPS argues that the public school agency is not required to provide transportation under the circumstances of this case and that Section 300.451 applies to those cases where a child is placed in a private school by his or her parents and requires a particular program such as speech therapy. DCPS contends that once the child's needs are established, for example for speech therapy, that DCPS would be required to ...


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