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 plaintiffs' motion as is founded upon the standard grounds for injunctive relief must be denied.
The second issue is whether the defendants are required to maintain the placement at the Lab School as the "current educational placement" for Jonas pursuant to 20 U.S.C. § 1415(e)(3). The plaintiffs rely on a recent case decided by this Court in which the Court concluded that, where the hearing officer had determined that due to the lateness of the DCPS proposal for placement, that although Prospect would have been appropriate, the child should be placed at the Lab School. The Court held that the Lab School became the current educational placement. See Saleh v. District of Columbia, 660 F. Supp. 212 (D.D.C. 1987). But, each case must be judged on its own facts, and the facts in that case differ from those here. At first glance the cases seem similar. Both cases involve the same two schools, the Lab School and Prospect, and in both cases the hearing officers were satisfied that both schools represented appropriate placements. Additionally, in both cases the hearing officers required DCPS to pay for, at least, a portion of placement at the Lab School because DCPS had submitted its proposed placement after the beginning of the school year. But, the cases differ in one important aspect. In Saleh the hearing officer did not place a time limit on the placement at the Lab School, while in this case, the hearing officer provided that the placement at the Lab School would terminate on April 7, 1986. Moreover, in Saleh DCPS never sought reconsideration or modification of the hearing officer's determination and did not appeal.
This Court has recognized that the parties in EHA cases may enter into settlements, for example, an agreement that DCPS will pay tuition for all or a part of a given school year without obligating itself to continue to pay tuition and related expenses until another appropriate placement is found. See Saleh, slip op. at 6-9; Jacobsen v. District of Columbia Board of Education, 564 F. Supp. 166, 169-171 (D.D.C. 1983). Likewise, the Court has recognized that a hearing officer may provide for a limited placement without ruling that placement constitutes the child's current educational placement. See Saleh, slip op. at 8. Such determinations should be the exception rather than the rule, but the ability to so rule in a given case allows the hearing officer some flexibility to address the particular facts of each case in a realistic manner. Where the hearing officer does so, he should set forth his reasons for departing from the standard determination so that the parties and the reviewing court may consider those factors in any future proceedings in the case. Unfortunately, the hearing officer in this case did not state why he terminated the placement at the Lab School on April 7, 1986 and the Court and the parties are left to speculate as to the reason.
Another factor which must be considered in determining whether the Lab School is the child's current educational placement is her prior placement. Normally, during the pendency of EHA proceedings the child is required to remain in his "present education placement". 34 C.F.R. § 300.513(a). But, as is true here, where the complaint involves an application for initial admission in the school, the child, with the consent of the parents must be placed in the public school program. 34 C.F.R. § 300.513(b).
After considering the evidence offered on this issue, the Court concludes that there is substantial evidence that the Lab School represents the current educational placement for Jonas. This is based on several factors. First, Jonas has never had a true placement in the public school system. He first entered Brent but that placement was aborted within one day. At a due process hearing challenging that placement, the hearing officer found it unnecessary to address the merits because he concluded that the DCPS Notice of Proposed Change in Educational Placement was deficient and did not conform to the law and that "therefore, DCPS cannot meet the burden of proof that the proposed placement is appropriate." 1985 Determination at 3.
Second, the hearing officer found that "DCPS did not have an adequate special education program for Jonas until 11/27/85" and therefore concluded that DCPS should be financially responsible for his placement at the Lab School from the beginning of the 1985-86 school year until April 7, 1986. While the Court expresses some concern with the cut-off date for financial responsibility by DCPS, there is no escaping the fact that Jonas did not have a proposed educational placement until November 27, 1985, late into the school year. There is no evidence that the delay was caused by any action or lack of action by the plaintiffs. By that time, the parents had found it necessary to place Jonas at the Lab School. A transfer of the child in December 1985 may have been too disruptive, and in any event, an administrative determination was not made until March 1986.
Based upon the above facts, the Court concludes that the parents were justified, as the result of the delay by DCPS in making a placement, in unilaterally placing the child at the Lab School. Simply stated, there was no other placement available at that time. And, likewise, the parents were justified in not attempting to change the placement once DCPS proposed Prospect, since they had a right to contest that placement in an impartial due process hearing. Since the child had no other placement in the school system which could be considered to be his current educational placement, and since the delay in placement was occasioned by the DCPS delay solely, the Court concludes that at the end of the 1985-86 school year, the child's current educational placement was the Lab School.
Based upon this determination, the Court need not address the third issue, namely, 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. Indeed, the only way in which the Court could grant injunctive relief on this grounds would be for the Court to apply the standard tests for injunctive relief, and the Court has already determined that in applying that test, the plaintiffs are not entitled to an injunction. See Part II, supra. But the fact that DCPS did not propose an educational placement for the 1986-87 school year only serves to support the conclusion that the Lab School represents the current educational placement for Jonas.
Finally, the Court notes that in giving injunctive relief at this time, it need not apply the standard test set forth in Part II, supra. This is because the EHA provides for an automatic preliminary injunction to maintain the child's placement at his or her current educational placement during the pendency of the proceeding. See 20 U.S.C. § 1415(e)(3).
The last issue the Court must address is the extent of the injunctive relief that should be granted. Plaintiffs seek to have the Court order that DCPS is required to place and fund Jonas at the Lab School as of April 7, 1986.
The Court concludes that, effective on May 1, 1987,
DCPS should fund the child at the Lab School during the pendency of these proceedings. Thus, DCPS will be required to pay tuition and all related expenses. With respect to funding for the period commencing on April 7, 1986 and ending on May 1, 1987, the Court will withhold a determination since it may be that the court hearing this case on the merits may conclude, based upon all the evidence, that the Lab School is not the current educational placement for Jonas. If the plaintiffs prevail, they will be entitled to reimbursement. Burlington School Committee v. Department of Education, 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985).
In view of the above, it is hereby
ORDERED that plaintiffs' motion for a preliminary injunction is granted in part and denied in part, and it is further
ORDERED that the defendants shall fund Jonas at the Lab School effective May 1, 1987, funding to include tuition and related expenses, and it is further
ORDERED that the plaintiffs shall not be required to post any security.
JOHN GARRETT PENN United States District Judge.