Claims of: Afra Abdullah, Charles "Tucker" Battle III, Elvin Charles, Zachary Devillier, James Tanney-Palmeter, Emily Keller, Liam McNamara, Margaret Kenworthy, Shanice Brooks, Lillian deVrijer and Emily Cooper
This matter is before the Court for consideration of five reports filed by the Special Master in which she recommends that the Court grant the motions for preliminary injunction filed on behalf of eleven members of the class. Plaintiffs' class counsel and/or counsel for defendants filed objections to the Special Master's reports and recommendations pursuant to Rule 53 of the Federal Rules of Civil Procedure. Counsel for the eleven plaintiffs responded. Underlying each motion for a preliminary injunction is a claim that the plaintiffs are being irreparably harmed by defendants' failure to schedule timely due process hearings in violation Section 1415(f) of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. ("IDEA"), Section 300.511 of the Code of Federal Regulations, 34 C.F.R. § 300.511, and Sections 5-3029.1 and 3030.1 of the District of Columbia Municipal Regulations, D.C. MUN. REGS. tit. 5, §§ 3000, et seq. (2003).
A. The Special Master's Findings and Recommended Relief
In her reports, the Special Master made the following findings of fact with respect to these eleven plaintiffs.
1. Claims of Afra Abdullah, et al.
With respect to the claims of Afra Abdullah, Charles "Tucker" Battle III, Elvin Charles, Zachary Devillier and James Tanney-Palmeter, the Special Master determined that in each case: (1) the District of Columbia Public Schools ("DCPS") either failed to find the student eligible for special education and/or related services under the IDEA or issued an individualized education program ("IEP") with which the parents disagreed; (2) the parents placed their child in a private school that provided the special education and related services they believed their child required; (3) the parents concurrently or shortly thereafter filed a request for a due process hearing challenging DCPS's determination, indicating, pursuant to DCPS instructions, three dates on which plaintiffs and plaintiffs' counsel were available for a hearing during the ensuing 35 days; (4) *fn1 with the exception of Afra Abdullah, DCPS sent a notice of a due process hearing to plaintiffs' counsel scheduled on none of the dates requested and at times at which either plaintiffs or plaintiffs' counsel were unavailable; DCPS made no additional efforts to schedule a hearing; *fn2 (5) DCPS failed to hold a timely due process hearing pursuant to Section 1415(f) of the IDEA and Sections 5-3029.1 and 5-3030.1 of the District of Columbia Municipal Regulations; (6) plaintiffs' counsel filed a motion for summary determination with the DCPS student hearing office that was not acted upon; (7) plaintiffs filed a motion for a preliminary injunction with this Court; and (8) DCPS sent plaintiffs a hearing notice months after the close of the period within which DCPS was statutorily required to hold the due process hearing and issue a determination, purporting to schedule a hearing two days before the already-scheduled meeting with the Special Master. See Abdullah Rep. at 2-8.
2. Claims of Emily Keller, et al.
With respect to the claims of Emily Keller, Liam McNamara and Margaret Kenworthy, the Special Master determined that in each case: (1) DCPS either failed to find the student eligible for special education and/or related services under the IDEA or issued an IEP with which the parents disagreed; (2) the parents placed their child in a private school that provided the special education and related services they believed their child required; (3) the parents concurrently or shortly thereafter filed a due process hearing request challenging DCPS's determination, indicating, pursuant to DCPS instructions, three dates on which plaintiffs and plaintiffs' counsel were available during the ensuing 35 days; (5) DCPS failed respond to plaintiffs' request and failed to conduct a timely due process hearing; (6) after the expiration of the statutory period within which DCPS was required to conduct a hearing and issue a decision,
With respect to plaintiff Afra Abdullah, the Special Master found as a fact, despite DCPS faxed to plaintiffs' counsel an "administrative clean up" form that asked counsel to identify the status of the child's case; (7) plaintiffs filed a motion for a preliminary injunction with this Court; and (8) DCPS scheduled a due process hearing in April 2003 without consultation with plaintiffs' counsel. See Report and Recommendations of the Special Master, Claim of Emily Keller, et al. ("Keller Rep.") at 2-5.
3. Claim of Shanice Brooks
With respect to the claim of Shanice Brooks, the Special Master found that DCPS originally had drafted an IEP that her parents found inadequate to her needs. See Report and Recommendations of the Special Master, Claim of Clarence Jetter, parent of Shanice Brooks ("Brooks Rep.") at 2. In response to the allegedly infirm IEP, plaintiffs' counsel filed a request for a due process hearing indicating three available dates. See id. Plaintiffs also discussed placement with a private provider that conditionally accepted Shanice, but as of the date of the Special Master's report Shanice remained in her original placement at a public elementary school. See id. DCPS represented to the Special Master that it had tried to contact plantiffs' counsel to schedule a due process hearing to no avail, a claim that the Special Master found unconvincing. See id. at 3. Plaintiff then filed a motion for a preliminary injunction. See id. at 1.
4. Claim of Lillian deVrijer
With respect to Lillian deVrijer, the Special Master found that DCPS had developed two IEPs for Lillian, the second of which called for placement at a public school. See Report and Recommendations of the Special Master, Claim of Lillian deVrijer ("deVrijer Rep.")
In response, plaintiffs requested a due process hearing. See id. At the end of the 45-day period in which DCPS was to have held a due process hearing and issued a hearing officer determination, DCPS issued a notice of a hearing without prior consultation with plaintiffs or their counsel. Plaintiffs were unable to attend on the date proposed. See id. Several months after the close of the 45-day period, plaintiffs received another notice of a hearing date that indicated that only two hours had been allotted for the hearing; plaintiffs rejected this proposal, indicating that the hearing would take a full day. See id. at 4. It is unclear what response DCPS had to this representation. Plaintiffs then filed a motion for a preliminary injunction. See id.
With respect to the claim of Emily Cooper, the Special Master found that DCPS had issued an IEP with which her parents disagreed. See Report and Recommendations of the Special Master, Claim of Emily Cooper ("Cooper Rep.") at 2. Her parents then placed Emily in a private school and filed a due process hearing request indicating three dates on which plaintiffs and plaintiffs' counsel were available. DCPS failed to schedule a timely due process hearing. See id. at 2-3. Several months after the close of the period within which DCPS was statutorily required to hold the due process hearing and issue a determination, DCPS proposed a two-hour hearing on March 13, 2003. Plaintiffs rejected this proposal, indicating that a full day hearing was necessary. DCPS did not respond, and plaintiffs filed their motion for a preliminary injunction. See id. at 3.
B. The Special Master's Conclusions of Law and Recommendations for Relief
The Special Master concluded that each plaintiff has met the requirements for emergency injunctive relief. First, the Special Master found that the plaintiffs already had prevailed on the merits of their underlying claims when the Court entered a judgment for plaintiffs in this action on the issue of liability, citing the Court's Opinion of June 3, 1998 in this matter. See Abdullah Rep. at 9. *fn3 Second, the Special Master determined that plaintiffs have demonstrated irreparable harm because DCPS's failure to provide timely due process hearings "forced" the parents to unilaterally place and pay for the education of their children in an appropriate setting when in fact DCPS has the statutory obligation to provide an appropriate special education at government expense. Id. Furthermore, she concluded that DCPS's failure to provide timely due process hearings constitutes irreparable harm in and of itself by denying plaintiffs a fundamental right afforded by the IDEA. See id. Third, the Special Master concluded that the rights of defendants will not be impaired by her findings and recommendations because defendants remain able to change any placement ordered by the Court provided the change is made in compliance with the IDEA. See id. at 10. Fourth, the Special Master noted that the Court already has recognized the public interest in implementing the IDEA in the Court's earlier opinions in this matter. See id. at 10.
The Special Master recommends certain relief for ten of the eleven students, directing DCPS: to make retroactive payments to those private providers that the children have attended from their dates of enrollment through the end of the 2002-2003 school year; to conduct due process hearings with respect to each plaintiff within one month of the date of this Opinion; and to keep plaintiffs at their current placements through the end of the 2002-2003 school year absent express consent to a change in placement from the parents. See Abdullah Rep., Proposed Orders at 1.*fn4 For the remaining plaintiff, Shanice Brooks, who currently is placed in a public school, the Special Master recommends that the Court direct DCPS to place Shanice at St. Coletta of Greater Washington, Inc., the private provider that conditionally accepted her, through the end of the 2002-2003 school year, to conduct a due process hearing within one month of the date of this Opinion, and not to remove Shanice from St. Coletta prior to the end of the 2002-2003 school year without the express consent of her parents. See Brooks Rep., Proposed Order at 1. *fn5
C. Objections to the Reports and Recommendations
Both defendants and plaintiffs' class counsel filed objections to the Special Master's reports on two main bases. First, defendants assert that plaintiffs have not demonstrated the necessary irreparable injury or threat of irreparable injury required for preliminary injunctive relief. Defendants and plaintiffs' class counsel argue that the parents were not forced to place their children in private schools as a result of the failure of DCPS to provide timely due process hearings but instead chose to do so, and that the cost of funding the students is not evidence of irreparable harm justifying injunctive relief. See Objection of Defendants District of Columbia and District of Columbia Public Schools to Reports and Recommendations of Special Master, Claims of Clarence Jetter, et al. ("Defs.' Jetter Obj.") at 3; Objection of Defendants District of Columbia and District of Columbia Public Schools to Reports and Recommendations of Special Master, Claims of Emily Keller, et al. ("Defs.' Keller Obj.") at 1 (incorporating by reference the arguments put forth in defendants' objections to the Jetter and deVrijer Reports); Response of Class Counsel to Objections by Defendants to Reports and Recommendations of the Special Master ("Cl. Consl. Resp.") at 4-5. In this same vein, defendants object to the Special Master's conclusion that a denial of a timely due process hearing is an automatic denial of a free appropriate education required by the IDEA that causes harm to plaintiffs. See Defs.' Jetter Obj at 3-6.
Second, defendants object to the Special Master's recommended relief. They assert that it is inappropriate to require DCPS to fund the students' placements in private schools retroactively (for the time already spent in the private placements) and prospectively (through the end of the school year) irrespective of the outcome of a due process hearing officer's determination. Defendants argue that DCPS should not be ordered to pay the providers for the time a student already has spent in the private placement unless and until a hearing officer determines that the private placement is appropriate; after all, defendants assert, the hearing officer may find that the placement was not appropriate to begin with. Defendants also challenge the logic of ordering DCPS to pay the students' tuitions through the end of the 2002-2003 school year on the ground that it effectively would negate any hearing officer's subsequent determination that the appropriate placement lies elsewhere. See Defs.' Jetter Obj. at 6-7; Objection of Defendants District of Columbia and District of Columbia Public Schools to Reports and Recommendations of Special Master, Claims of Erik deVrijer, et al. ("Defs.' deVrijer Obj.") at 5-6.*fn6 Defendants propose as an alternative remedy that the Court simply direct DCPS to conduct due process hearings and to issue decisions promptly. See id.*fn7
A. Standard of Review for Emergency Injunctive Relief
Under the familiar standard for deciding whether to grant emergency injunctive relief, the Court must consider (1) whether there is a substantial likelihood that plaintiffs will succeed on the merits of their claims, (2) whether plaintiffs will suffer irreparable injury absent an injunction, (3) the harm to defendants or other interested parties (balance of harms), and (4) whether an injunction would be in the public interest or at least not be adverse to the public interest. See Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998); Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1208 (D.C.Cir. 1989); Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir. 1977); Milk Industry Foundation v. Glickman, 949 F. Supp. 882, 888 (D.D.C. 1996).
Plaintiffs are not required to prevail on each of these factors. Rather, under Holiday Tours, the factors must be viewed as a continuum, with more of one factor compensating for less of another. "If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir.1995). An injunction may be justified "where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." Id. Conversely, when the other three factors strongly favor interim relief, a court may grant injunctive relief when the moving party has merely made out a "substantial" case on the merits. The necessary level or degree of likelihood of success that must be shown will vary according to the Court's assessment of the other factors. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d at 843-45. In sum, an injunction may be issued "with either a high probability of success and some injury, or vice versa." Cuomo v. United States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985).
B. Denial of Timely Due Process Hearings and Resulting Irreparable Harm
The crux of the disagreement among the parties lies in the second prong of the preliminary injunction standard: irreparable harm. The Special Master concluded that DCPS's failure to provide timely due process hearings constitutes irreparable harm to plaintiffs because the right to a hearing "is absolute, and the failure to provide a timely hearing has consequences that are absolute – that is, there is no substitute available to the student and his or her family. It is the absolute lack of any alternative to the student that causes 'irreparable harm' at the hands of DCPS." deVrijer Rep. at 5-6. Defendants counter that because the timely provision of due process hearings is a procedural protection provided in the IDEA, plaintiffs must demonstrate that actual harm or prejudice resulted from the denial of a hearing in order to merit injunctive relief. In the absence of such harm, the failure to provide a hearing may be remedied by directing that such a hearing promptly be held. See Defs.' Jetter Obj. at 4.
Defendants' failure to provide a timely due process hearing to plaintiffs is not an unimportant or technical violation of the procedural safeguards provided for in the IDEA. Rather, it is the denial of a fundamental component of the due process protections afforded by the statute. As the Supreme Court noted in Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982), the procedural due process protections included by Congress in the IDEA are of critical importance to effectuating the goals of the statute:
When the elaborate and highly specific procedural safeguards embodied in § 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g., §§ 1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.
Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. at 205-06. "The Act... was intended to ensure prompt resolution of disputes regarding appropriate education for handicapped children." Spiegler v. District of Columbia, 866 F. 2d 461, 467 (D.C. Cir. 1989). Of all the procedural rights provided by Congress in the IDEA, "[t]he due process hearing is the Act's primary procedural protection" in effectuating this purpose. Kroot v. District of Columbia, 800 F. Supp. 976, 982 (D.D.C. 1992).
In light of the primacy the due process hearing has in ensuring plaintiffs' substantive rights under the statute, the Court concludes that DCPS's failure to provide timely due process hearings and determinations can itself constitute the denial of a free appropriate education. See Walker v. District of Columbia, 157 F. Supp. 2d at 31, 32 (DCPS denied plaintiff a free appropriate education in failing to provide plaintiff timely due process hearing); Evans v. Board of Education of the Rhinebeck Central School District, 930 F. Supp. 83, 93 (S.D.N.Y. 1996) ("A violation of the Act's procedural guarantees may be a sufficient ground for holding that a school system has failed to provide a free appropriate public education and thus has violated the Act."). While a slight delay in the provision of a hearing after a request has been made or a slight delay in rendering a decision may be an excusable procedural infirmity in some cases, the failure to offer the parents and their children a timely hearing for months after the expiration of the 45-day period, as was the case here, crosses the line from process to substance. See id. at 93-94 ("[p]rocedural flaws do not automatically require a finding of a denial of a free appropriate education, but procedural inadequacies that result in loss of educational opportunity clearly result in the denial of a free appropriate education.").
As this Court previously has held, the failure to provide an IEP, the failure to hold a due process hearing, or the failure to provide a written determination in a timely manner after requests for an IEP meeting or a hearing have been made constitutes the denial of a free appropriate public education as required by the IDEA. See Walker v. District of Columbia, 157 F. Supp. 2d at 31, 32. Where there is a denial of a free appropriate education because no hearing has been held and no determination has been issued, and a proper placement therefore has not been made, there results a per se harm to the student and the irreparable injury requirement for a preliminary injunction has been satisfied. Indeed, each day a child is denied a free appropriate education by such procedural dereliction of a school system he or she is harmed yet again. See Cox v. Brown, 498 F. Supp. 823, 828-29 (D.D.C. 1980) (irreparable harm results when students "[lack] each day of their young lives an appropriate education, one that is sensitive to their particular disabilities, commensurate to their levels of understanding, and fulfilling their immediate needs"). As the Court previously noted in this very case:
[T]he failure of the District to comply with its statutory obligations and provide appropriate educational placements can have a devastating impact on a child's well-being. "Any agency whose appointed mission is to provide for the education and welfare of children fails that mission when it loses sight of the fact that, to a young, growing person, time is critical. While a month in the life of an adult may be insignificant, at the rate at which a child develops and changes, especially one at the onset of biological adolescence with or without special needs like those of our plaintiff, a few months can make a word of difference in the life of that child."
Blackman v. District of Columbia, 185 F.R.D. 4, 7-8 (D.D.C. 1999) (quoting Foster v. District of Columbia, Civil Action No. 82-0095, Memorandum Opinion and Order of February 22, 1982 at 4 (D.D.C. Feb. 22, 1982)); see also Spiegler v. District of Columbia, 866 F.2d at 466-67 (Act's procedural requirement for periodic and individualized assessments of each special education child "evinces a recognition that children, particularly young children, develop ...