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April 4, 1995

NIKITA PETTIES, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.

The opinion of the court was delivered by: PAUL L. FRIEDMAN


 This matter came before the Court on the plaintiffs' motions for class certification and for preliminary injunction. Plaintiffs, minor students eligible for special education and their parents, sought to certify a class of students with disabilities who are entitled to or receive special education instruction and services from the District of Columbia Public Schools ("DCPS"). *fn1" After a hearing on March 17, 1995, the Court found that the prerequisites for class certification under Rule 23(a) and (b)(2), Fed. R. Civ. P., had been met and issued an Order certifying a class defined as:

all [DCPS] students currently placed in private special education schools or receiving special education and/or related services from a private third party provider, all [DCPS] students placed in public schools who currently are receiving related services from private providers, and all [DCPS] students who have been determined by an administrative decision or by agreement with the DCPS to be eligible to receive services from private providers (including private placements).

 For reasons stated in open court on March 17, 1995, the Court also granted plaintiffs' motion for a preliminary injunction. The Court found, inter alia, that:

Defendants have placed numerous DCPS students in private special education facilities pursuant to their obligation to provide an appropriate placement for these students. Similarly, defendants have entered into contracts or other agreement with private firms or other entities for the provision of special education related services to students attending public schools within the [DCPS] system. Defendants are required by law to maintain these students' placements and related services by paying the costs thereof.
Defendants have not paid the costs of private special education placements or related services either fully or on a current or timely basis for at least the 1994-1995 school year. Consequently, defendants have violated the [Individuals With Disabilities Education Act] and other laws and regulations intended to ensure that DCPS students with special education needs receive a free, appropriate education.
Unless defendants fully and immediately fund all DCPS students currently in private special education placements and/or receiving related services from private providers and, in addition, give adequate written assurances that such payments will be made on a current basis in the future, many, if not all of those students will have those placements and/or services terminated, and there is no indication that appropriate alternative placements will be available to meet the students' individual needs.

 Preliminary Injunction at 1-2 (Mar. 17, 1995).

 The Court concluded that the plaintiffs are suffering irreparable harm and ordered the defendants within fourteen days to pay all costs outstanding as of the date of the Court's Order, including costs of tuition for all private special education placements of DCPS students and all costs of all special education related services that private providers render to DCPS students pursuant to contracts or other agreements with the DCPS. The Court also required defendants to give written assurances that they will make future payments on a current basis and to report to the Court regarding their compliance with the Court's Order. This Opinion confirms the Court's oral ruling.


 The main purpose of the Individuals With Disabilities Education Act ("IDEA") is to assure that children with disabilities have available to them a free, appropriate public education that addresses their unique needs. See 20 U.S.C. §§ 1400 et seq. The IDEA's principal means of ensuring that this goal is met is the "individualized education program" ("IEP") that the IDEA mandates for each disabled child. Each child's parents and teachers, as well as other professionals, are to develop an IEP that sets forth the required instruction and services designed to meet the child's unique needs, and the school system must propose an appropriate placement that meets the child's needs as set forth in the IEP. 20 U.S.C. § 1401(20); 34 C.F.R. §§ 300.340-300.350. Where an appropriate public placement is unavailable to meet the child's needs, the school system must provide an appropriate private placement or make available additional related services provided by private organizations to supplement a public placement. 34 C.F.R. §§ 300.400-300.403.

 Once a placement has been made, agreed to, or determined to be appropriate after an administrative hearing, a school system proposing to change the educational placement of a student in special education must provide written notice to the student's parents, including a full explanation of all procedural safeguards available to them, an explanation of why the school system proposes to take the action, and a description of any factors relevant to the school system's decision. 20 U.S.C. § 1415; 34 C.F.R. §§ 300.504, 300.505, 104.36. The parents have a right to a prior administrative hearing if they disagree with the school system's proposed action, and the school system may not change a student's placement without the parent's agreement pending the administrative decision. 20 U.S.C. § 1415.

 Plaintiffs brought this suit because, they argue, defendants' failure to pay for private placements for disabled students who are currently placed or who have been determined eligible for private provider services violates the DCPS' statutory duty under the IDEA to continue to ...

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