greater exposure to liability. In short, a full program of such transportation may well result in draining funds or resources from other programs designed for children who choose to attend the public schools at a time when such funds are limited.
In sum, this Court concludes that neither the EHA nor the implementing regulations require DCPS to provide transportation for Molly to attend the Lab School. Accordingly, so much of the motion for preliminary injunction as is based upon this argument must be denied. There are no outstanding genuine issues of material fact and therefore the defendants are entitled to summary judgment and a denial of plaintiff's request for a declaratory judgment on this issue. See Fed. R. Civ. P. 56.
In Part II, the Court assumed, for the purpose of consideration of the motion addressed in that part that Prospect represents an appropriate educational placement, since plaintiff's argument is really that under any circumstances, DCPS is required to furnish the requested transportation. In this Part, the Court makes no such assumption and addresses the classic request for injunctive relief.
To be entitled to injunctive relief, the plaintiffs must demonstrate that they are likely to prevail on the merits, that they will suffer irreparable injury if injunctive relief is denied, that the granting of injunctive relief will not cause substantial harm or injury to the other parties, and where lies the public interest. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 222, 559 F.2d 841, 843 (1977). "The necessary 'level' or 'degree' of possibility of success will vary according to the court's assessment of the other factors." Id.
With respect to the question of the likelihood of the plaintiff's prevailing on the merits, there is an insufficient record for the Court to make such a determination. The Court heard the testimony of Mrs. Work who testified that in her opinion Prospect did not represent an appropriate placement. Opposed to that opinion is the affidavit of Susan Chadwick, a psychologist at the Prospect Learning Center, who reviewed the records of Molly and who attended the administrative hearing on the appropriateness of the placement and who expresses her professional opinion that Prospect represents an appropriate placement.
Mrs. Work also testified that she does not have the available funds or resources with which to pay for Molly's transportation to and from the Lab School and that she can only transport the child to the school at great inconvenience to herself or other members of her family. She testified that Molly's parents are divorced and that Mr. Work has agreed to provide the tuition for Molly at the Lab School, but will not provide funding for transportation or will not transport Molly to and from the school. The Works have two other children who are attending Sidwell Friends, a private school in the District of Columbia. Although Mrs. Work has testified concerning her financial ability to pay for transportation, she has not offered the testimony or affidavit of Mr. Work in that regard.
The Court finds that the plaintiffs have failed to demonstrate that they will suffer irreparable injury if injunctive relief is not granted. They have failed to demonstrate that they cannot provide transportation for Molly either by transporting the child themselves, or paying for such service.
In view of the above, the Court concludes that the motion must be denied.
It is hereby
ORDERED that plaintiff's motion for a preliminary injunction is denied, and it is further
ORDERED, sua sponte, that the defendants shall have summary judgment with respect to Count III of the Complaint relating to the transportation of the child to the Lab School of Washington.
Dated March 31, 1987.
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