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COCHRAN v. DISTRICT OF COLUMBIA

May 14, 1987

Jonas Cochran, et al.
v.
District Of Columbia, Et Al.



The opinion of the court was delivered by: PENN

 The plaintiffs filed this action pursuant to the Education for All Handicapped Children Act (EHA), as amended, 20 U.S.C. § 1400, et seq. The case is now before the Court on the plaintiffs' motion for a preliminary injunction.

 I

 Jonas is a ten year old, learning disabled child, eligible for special education and related services in the District of Columbia. The plaintiffs allege that on March 29, 1985 they filed a Confidential Student Services Form with the District of Columbia Public Schools (DCPS). DCPS evaluated Jonas and found him eligible for a special education placement and proposed placement at the Brent Elementary School (Brent) with twenty-five percent of his education to be provided with non-handicapped children. Cochran Declaration par. 3. The parents agreed to place him in that school, however, he only attended for one day in September 1985, and thereafter the parents withdrew him because they felt that it was clear that the placement was a "disaster". Id., par. 4. They then initiated due process proceedings to contest the placement at Brent. 34 C.F.R. §§ 300.506-300.507. The hearing officer determined that the DCPS Notice of Proposed Change in Educational Placement was deficient and did not conform to the law and concluded that DCPS could not meet the burden of proof that the proposed placement is appropriate. *fn1" Plaintiffs' Motion Exhibit 2 (Determination filed November 19, 1985, hereinafter referred to as the 1985 Determination) at 3. The hearing officer provided that DCPS had until the close of business on November 25, 1985 to prepare and present "a legal Notice of Proposed Change in Educational Placement . . . with appropriate accompanying documents."

 On November 27, 1985, DCPS issued a new Notice of Proposed Change in Educational Placement in which it was proposed that Jonas be placed at the Prospect Learning Center (Prospect), a DCPS full-time special education facility. Cochran Declaration par. 7. After the parents visited Prospect, they concluded that it was not appropriate to meet the needs of Jonas and they requested a second due process hearing to contest the proposed placement. Id., par. 8. In the meantime, because they were not satisfied that Prospect was an appropriate placement and because they felt that Jonas needed an appropriate special education placement, the parents enrolled him in the Lab School of Washington (Lab School), a private, special education day school for the learning disabled. A hearing was held on March 12, 1986. The hearing officer determined that both Prospect and the Lab School are appropriate programs. *fn2" Plaintiffs' Motion Exhibit 3 (Determination filed March 24, 1986, hereinafter referred to as the 1986 Determination) at 5. The hearing officer determined further that notwithstanding that Prospect can provide Jonas with an appropriate special education program, that "since [Prospect] was not afforded to [Jonas] until 11/27/85, DCPS shall be responsible for his placement at the Lab School of Washington from the beginning of the 1985-86 school year until April 7, 1986, at which time [DCPS] are to have his placement at [Prospect] available to him." Id. The plaintiffs filed this action as an appeal from the hearing officer's determination. 20 U.S.C. § 1415(e)(2). Jonas remained at the Lab School past the April 7, 1986 date, and is still enrolled there.

 On May 29, 1986, the Lab School held a meeting to develop its Individualized Educational Program (IEP) for Jonas for the 1986-87 school year. *fn3" Cochran Declaration par. 14. The meeting was attended by Ms. Carrie M. Johnson, DCPS IEP Developer. Id., see also Plaintiffs' Exhibit 1 (as distinguished from Plaintiffs' Motion Exhibit 1). DCPS did not propose any special education placement for Jonas for the 1986-87 school year and DCPS continues to transport him to his program at the Lab School. *fn4" DCPS paid the Lab School tuition only up to April 7, 1986, but the parents state that it was only recently that they were advised that DCPS ceased paying tuition on that date. The plaintiffs state that they became aware that DCPS had not paid tuition after April 7, 1986 when they received a letter from the attorneys representing the Lab School advising them that the plaintiffs would be sued "immediately" unless they paid the remaining tuition due for 1985-86 amounting to $ 1,744.66. Id., par. 18, Declaration Exhibit 1. They allege that they are unable to pay the tuition and will be sued unless DCPS is ordered to maintain Jonas at the Lab School retroactive to April 7, 1986. Id., par. 19. They allege further that if the money is not paid that Jonas cannot remain at the Lab School. Id., par. 20.

 In their motion, the plaintiffs seek to have the Court require the defendants to place and maintain Jonas at the Lab School, retroactive from April 7, 1986, during the pendency of these proceedings. They contend that the Lab School is the "current educational placement" for Jonas and that as such DCPS is required to maintain the status quo.

 The defendants disagree and argue that the "current educational placement" for Jonas is Prospect. Defendants reason that while the hearing officer required DCPS to pay for the tuition and related services at the Lab School to April 7, 1986, he provided that after that date, the child was to be placed at Prospect.

 II

 The motion presents three questions. First, whether the plaintiffs are entitled to injunctive relief under the usual standards applied to such requests. Second, whether the Lab School is the "current educational placement" for Jonas. See 20 U.S.C. § 1415(e)(3). If it is then DCPS will be required to maintain the status quo during the pendency of these proceedings. Third, whether by failing to propose a placement for the 1986-87 school year, DCPS is now required to fund the child at the Lab School for that year.

 Normally when a plaintiff seeks injunctive relief, he must demonstrate that he is likely to prevail on the merits, that he will suffer irreparable harm if injunctive relief is denied, that other parties will not suffer substantial injury if injunctive relief is granted, and that the granting of such relief is not inconsistent with 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). Here the irreparable harm alleged is that Jonas would be required to leave the Lab School. Although the plaintiffs note that the school has threatened to sue them for the tuition due for the past school year, 1985-86, that fact standing alone does not entitle them to a preliminary injunction. Moreover, although the plaintiffs allege that if the "money is not paid" and "Jonas cannot remain in his program at the Lab School", see Cochran Declaration par. 20, they will suffer irreparable harm, there is no evidence that the Lab School is threatening to expel Jonas at this time. Indeed, at the hearing on the motion held on May 12, 1987, plaintiffs' counsel stated candidly that the school has yet to issue such a threat. Under these circumstances, the Court cannot find that the plaintiffs will suffer irreparable harm if the preliminary injunction is denied.

 Turning to the merits, the Court finds that it is unable to gauge the relative merits of the two schools. It observes that an impartial hearing officer has determined that Prospect represents an appropriate placement; but, of course, it is that decision that the plaintiffs are appealing as contrary to the weight of the evidence. The Court notes also that the same hearing officer found that the Lab School represents an appropriate placement but that determination is not dispositive because where both placements are appropriate DCPS may place the child in either one and the parents have no right to insist upon their preferred placement.

 In sum, the Court finds that the plaintiffs have not demonstrated that they are likely to prevail on the merits as that issue relates to the ability of the respective schools to afford an appropriate placement and that they have not demonstrated that they will suffer irreparable injury if injunctive relief is denied. Thus, the Court concludes that so much of ...


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