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August 23, 1988

Stephen Andrew Knight, et al., Plaintiffs,
District of Columbia, et al., Defendants

The opinion of the court was delivered by: RICHEY


 Under the Education of the Handicapped Act, 20 U.S.C. §§ 1400 - 1461, the District of Columbia is required to provide a "free, appropriate public education" to all handicapped children within its jurisdiction. Id. at § 1400(c). This education must emphasize special education and related services and must be tailored to meet the unique needs of each handicapped child. Id.; see also, e.g., McKenzie v. Smith, 248 App. D.C. 387, 771 F.2d 1527 (D.C. Cir. 1985). As a means to this end, the District of Columbia is required to develop an Individualized Educational Program ("IEP") *fn1" for each handicapped child and to arrange for public or publicly funded private schooling of each handicapped child in a facility "appropriate" for realizing the goals specified in the IEP.

 In this suit, plaintiffs challenge virtually every procedural and substantive aspect of the 1987-88 IEP and suggested educational placement developed by the District of Columbia for Stephen Andrew ("Andy") Knight. As that school year has concluded, they ask the Court to order defendants to reimburse them for the costs of Andy's 1987-88 education. The Court held a one-day trial of this case on June 27, 1988, and, after carefully considering the law, the legal arguments advanced by both parties, and the evidence presented at trial, the Court finds that plaintiffs are entitled to judgment in their favor. *fn2"


 Andy Knight is a thirteen-year-old boy who lives in the District of Columbia. Although he is of above-average intelligence, Andy suffers from learning disabilities and has a host of other problems. In July, 1985, he was injured in an automobile accident that resulted in multiple physical handicaps. In addition, Andy is plagued by a gender identity disorder and the many emotional difficulties associated with this condition.

 During the 1986-87 school year, the District of Columbia Public Schools ("DCPS") placed and funded Andy, pursuant to the Education of the Handicapped Act, at the Episcopal Center for Children ("Episcopal"), a private school near Andy's home. By letter dated November 25, 1986, Annette Brandt, a social worker at Episcopal, advised the DCPS that Episcopal would not be an appropriate educational placement for Andy during the 1987-88 school year. In consultation with Andy's teachers, therapists, and parents, the DCPS developed an IEP for Andy for the 1987-88 school year; pursuant to that plan, the DCPS recommended placing Andy at the Buchanan Secondary Learning Disabilities Program ("Buchanan"), a public day school in the District of Columbia.

 Andy's parents disagreed with that proposal. Instead, they apparently concurred with Ms. Brandt's suggestion that Andy be placed at the Lab School, a private, full-time special education facility for learning disabled students of average to above-average intelligence. Accordingly, they asked for a hearing to challenge the proposed placement at Buchanan.


 In Board of Education v. Rowley, 458 U.S. 176, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982), the Supreme Court detailed the scope of judicial review in suits brought under the Education of the Handicapped Act. The Court must examine whether the State has "complied with the procedures set forth in the Act," and, if so, must then consider whether "the individualized educational program developed through the Act's procedures [is] reasonably calculated to enable the child to receive educational benefits." Id. at 205. Although the Court must conduct an independent review of the evidence, it must also give "due weight" to the expert opinions rendered by the officials entrusted with the child's education. Id. at 205-06; see also, e.g., McKenzie v. Smith, 248 App. D.C. 387, 771 F.2d 1527, 1531 (D.C. Cir. 1985).

 On the basis of this record, there can be no question but that DCPS did not comply with the Act's procedures. The Act establishes comprehensive provisions designed to facilitate parental participation in decisions about their child's education; moreover, the Act provides for administrative and judicial review of any decision with which the parents disagree. See Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592, 596, 98 L. Ed. 2d 686 (1988). Among these procedural safeguards is the "stay-put" provision, "which directs that a disabled child 'shall remain in (his or her) then current educational placement' pending completion of any [administrative or judicial] review proceedings, unless the parents and state or local educational agencies otherwise agree." Id. (quoting 20 U.S.C. § 1415(e)(3)); see 20 U.S.C. § 1415(e)(2) (stay-put provision applies to both administrative and judicial review). Thus, as Andy's parents most certainly did not agree to any placement proposed by the DCPS, the DCPS is required to maintain Andy at his "then current educational placement" until this lawsuit is resolved.

 The parties agree that the DCPS could not follow this command. Andy's "then current educational placement" was the Episcopal Center, which the parties agree was not an "available" placement for Andy during the 1987-88 School Year. See Defendants' Mark-up of Plaintiff's Proposed Findings of Fact and Conclusions of Law, para. 16. *fn4" But there is a clear restriction on the DCPS in such a circumstance: Where the "current educational placement" is not "available" during a dispute over a handicapped child's proper placement, the law of this Circuit unequivocally demands that "DCPS. . . locate and arrange a placement in a similar program . . ." McKenzie v. Smith, 771 F.2d at 1533. Where the prior program was in "a private special education facility", so must the interim program be. *fn5" Id. The DCPS made no effort whatsoever to so provide.

 Nor did the DCPS make such an effort in McKenzie v. Smith, a case that is remarkably similar to the case at bar. There, a handicapped student had been placed in a private day special education school. When the DCPS proposed changing his placement to a public school, the parents challenged the proposal, pursuant to § 1415(e) of the Education of the Handicapped Act. During the pendency of the administrative hearing, the private day school ceased being an "available" placement, and the parents enrolled the child in a private facility without DCPS approval; in fact, DCPS objected to this ...

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