United States District Court for the District of Columbia
March 10, 2004.
ROBERT SPILSBURY, et al. Plaintiffs,
DISTRICT OF COLUMBIA, et al. Defendants
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs are disabled children who are eligible for special education
and related services under the Individuals with Disabilities Education
Act ("IDEA"), 20 U.S.C. § 1400 (2003). Defendants are the District of
Columbia; the Superintendent of District of Columbia Public Schools; the
Assistant Superintendent of District of Columbia Public Schools, Anne
Gay; and the Director of Policy and Planning for District of Columbia
Public Schools, Judith Smith, Esq. Pending before the Court are the
parties' cross motions for summary judgment. The central issue is whether
defendants (collectively "DCPS") have complied with the IDEA;
specifically, whether DCPS has provided plaintiffs with a "free
appropriate public education that emphasizes special
education and related services designed to meet [plaintiffs'] unique
needs." 20 U.S.C. § 1400 (d)(1)(a); see also Petties v. District of
Columbia, 238 F. Supp.2d 114, 116 (D.D.C. 2002).
The plaintiff-students are currently enrolled at the McLean School, a
non-public school serving children with learning disabilities, and their
continued placement at McLean is not currently at issue.*fn1 Rather,
plaintiffs argue that they are due reimbursement from DCPS for the cost
of educating five students at McLean, costs plaintiffs have thus-far paid
out of their own pockets.*fn2 Plaintiffs allege that defendants
the educational services at issue, but in February of 2002 "abruptly
ceased funding" plaintiffs' education, and that DCPS also advised McLean
and plaintiffs' parents that it would seek return of previous funding for
plaintiffs' education at McLean in 2001-2002. Pls.' Mot. for Summ. J. at
4. Plaintiffs thus seek reimbursement in the amount of $31, 367.50,*fn3
as well as an order that DCPS cannot reclaim any payments made for the
2001-2002 school year. Defendants' cross-motion for summary judgment
counters that Plaintiffs Bodnar, Shirk, and Spilsbury are not entitled to
reimbursement for tutoring expenses, and that Plaintiff Bodnar is not
entitled to reimbursement for psychological therapy.
Upon careful consideration of the motions, the responses and replies
thereto, the oral arguments of counsel, as well as the governing
statutory and case law, and for the following reasons,
it is by the Court hereby ORDERED that plaintiffs' motion for summary
judgment is GRANTED; and it is FURTHER ORDERED that defendants' motion
for summary judgment is DENIED.
I. STANDARD OF REVIEW
This case is before the Court on the parties' cross motions for summary
judgment. Pursuant to Federal Rule of Civil Procedure Rule 56, summary
judgment should be granted only if the moving party has shown that there
are no genuine issues of material fact and that the moving party is
entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of
Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). Likewise, in ruling on
cross-motions for summary judgment, the court shall grant summary
judgment only if one of the moving parties is entitled to judgment as a
matter of law upon material facts that are not genuinely disputed. See
Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975).
The central issue before the Court is whether defendants have fulfilled
their obligation under the IDEA, as well as this Court's Order granting
injunctive relief, to provide a free public education to plaintiffs. The
Court must determine
whether plaintiffs are entitled to reimbursement for personal money spent
on the students' education, and whether DCPS is entitled to reimbursement
for what it now claims were mistaken payments for plaintiffs' education
for the 2001-2002 school year.
A. The IDEA
The IDEA'S purpose is to ensure that all children with disabilities are
able to receive a free public education that is tailored to meet their
specialized needs. To make certain that disabled children can truly access
the educational services they require, the IDEA provides that a disabled
child's parents, teachers, and other professionals annually confer and
establish a written "individualized education program"("IEP") for each
child. See 20 U.S.C. § 1401(11); 20 U.S.C. § 1414(d) (requiring
that each IEP include a statement of needs, services, learning aids, and
programs that should be made available to the student). After an IEP is
developed, the school system is required to "provide an appropriate
placement that meets those needs and, if appropriate public placement is
unavailable, the school system must provide an appropriate private
placement or make available educational-related services provided by
private organizations to supplement a private placement." Petties, 238 F.
Supp.2d at 116.
If the school system proposes to fundamentally change a child's
educational placement during this process, parents are entitled to
challenge that change through an appeal process. 20 U.S.C. § 1415(f).
During the pendency of such an appeal, the IDEA provides that the child
will "stay-put" that is, maintain her "current educational
placement" until any appeal or ongoing litigation is resolved.
20 U.S.C. § 1415(j).
B. Plaintiffs' "Current Educational Placement"
To resolve whether DCPS is required to fund the plaintiffs' McLean
education, the Court must first determine whether McLean was each
plaintiff's current educational placement, and thus the proper place for
plaintiffs to remain during their appeal of the 2001-02 IEPs. The parties
disagree on the issue of proper placement, in large part due to a dispute
as to which IEPs-the 2000-01 IEPs or the 2001-02 IEPs-set forth
plaintiffs' current educational placements. Plaintiffs posit that the
2000-01 IEPs control, whereas defendants argue that the 2001-02 IEPs (the
IEPs challenged by plaintiffs) dictate the plaintiffs' current
The 2001-02 IEPs proposed fundamental changes in plaintiffs'
educational programs, namely removal from the McLean School.
Plaintiffs made use of IDEA'S procedural safeguards, challenged the
implementation of the 2001-02 IEPs, and were awarded stay-put protection
by this Court's March 8, 2002 Order. See supra note 1. Thus, because the
students attended McLean prior to the development of the 2001-02 IEPs,
plaintiffs continued to be enrolled at McLean School and to receive the
educational services provided for in their previous (2000-01) IEPs.
However, DCPS refused to fund these services, arguing that the 2001-02
IEPs the challenged IEPs dictate the students' placements
and required educational services. In essence, defendants argue that the
2001-02 IEPs were developed prior to the commencement of the 2001-2002
school year, and thus control which educational services need to be
provided during that school year. Since the 2001-02 IEPs proposed to
remove plaintiffs from McLean, DCPS concludes that it is not required to
fund placement, or associated services, at McLean.
Quite simply, defendants' argument that the 2001-02 IEPs control flies
in the face of the IDEA'S design and purpose; defendants essentially seek
to eliminate the protections offered by the IDEA'S stay-put provision.
20 U.S.C. § 1415(j). The stay-put provision is designed for precisely
the present situation-it allows parents to challenge a proposed change in
their child's educational placement "in advance of that change taking
place. . . ." Petties, 238 F. Supp.2d at 124 (emphasis added). While such
an appeal is underway, the IDEA mandates that a disabled child remain at
her current educational placement; plainly, "current educational
placement" can only mean the student's placement before the proposed
It is undisputed that plaintiffs were enrolled at McLean immediately
prior to DCPS's issuance of the challenged 2001-02 IEPs, thus establishing
McLean as their current educational placements. Further, plaintiffs'
motion for injunctive relief requested that the Court order defendants to
"maintain all student-plaintiffs' current educational placements at the
McLean School." This Court's grant of such injunctive relief solidly
confirms that, pursuant to the IDEA, plaintiffs were to remain at the
Moreover, the IDEA'S procedural safeguards, specifically the stay-put
protection, would be rendered worthless if the Court adopted defendants'
theory. Plaintiffs would be forced to "stay-put" at a new school, under
the dictates of the 2001-02 IEPs-the very IEPs being challenged. In
attempting to alter the students' placements despite their parents' due
process challenges to such changes, DCPS endeavors to make the very kind
changes" expressly prohibited by the IDEA. Petties, 238 F. Supp.2d at
116. Accordingly, the Court is convinced that the 2000-01 IEPs establish
McLean School as plaintiffs' current educational placements.
C. Educational Services
The only remaining question is which, if any, educational services
plaintiffs were entitled to receive while enrolled at McLean School under
the stay-put protection. Plaintiffs state, and defendants do not dispute,
that their 2000-01 IEPs provided for the services at issue here (tuition,
academic tutoring, mental health services, and book costs), and that
plaintiffs received and DCPS funded these services during the 2000-2001
school year. Accordingly, plaintiffs argue that DCPS' refusal to fund
these same services in 2001-2002, given that the 2000-01 IEPs remained in
effect while the 2001-02 IEPs were challenged, violates the IDEA, and
that plaintiffs are entitled to reimbursement for the students' education
costs in 2001-2002.
Defendants have not challenged plaintiffs' assertions that the 2000-01
IEPs provided for these services; however, defendants argue that even if
the McLean School is the current educational
placement, this placement does not give rise to a DCPS obligation to fund
the services provided for in the 2000-01 IEPs. While defendants' argument
is unclear at best, they appear to be arguing for a narrow construction
of "current educational placement" namely, that the term only
encompasses the literal school building. Defendants argue, "The record
does not show that plaintiffs' [sic] challenged the educational programs
contained in the April/May 2001 IEPs [the 2001-02 IEPs]. Rather . . .
plaintiffs' [sic] challenged only the placement in which the IEPs were to
be implemented. In short, the accuracy of the programs contained in the
IEPs is conceded." Defs.' Supplemental Mem. at 1-2.
Again, this argument flies in the face of the IDEA'S purpose and
spirit. First, defendants again erroneously argue that the challenged
2001-02 IEPs controls. Second, the IDEA clearly intends "current
educational placement" to encompass the whole range of services that a
child needs; the term "current educational placement" cannot be read to
only indicate which physical school building a child attends. See, e.g.,
Bd. of Educ. of Cmty. High Sch. Dist. No. 218 v. Illinois State Bd. of
Educ., 103 F.3d 545, 549 (7th Cir. 1996) ("We accept as the outer
parameters of `educational placement' that it means something
more than the actual school attended by the child."); Erickson v.
Albuquerque, 199 F.3d 1116 (10th Cir. 1999) (adopting the Seventh Circuit
test). Indeed, the IDEA'S codified purpose is to ensure that all disabled
children receive appropriate education, including "related services
designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A)
(emphasis added). "Related services" include all "developmental,
corrective, and other supportive services . . . as may be required to
assist a child with a disability to benefit from special education."
20 U.S.C. § 1401(22) (including transportation, psychological
services, and counseling services). This recognition that an education
program encompasses vastly more than a school's four walls is precisely
why each IEP must contain "a statement of the special education and
related services and supplementary aids and services to be provided to a
child. . . ." 20 U.S.C. § 1414(d).
The IDEA'S stay-put provision is triggered when a change in placement
is proposed; "a fundamental change in, or elimination of, a basic element
of the educational program" constitutes a change in placement. Lunceford
v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir.
1984) (emphasis added). Academic tutoring and mental health care are
clearly basic elements of plaintiffs' educational programs. Elimination
these vital services formed the basis for plaintiffs' appeal, and
triggered stay-put protection. To comply with the IDEA, DCPS must ensure
that the students retain both their current placements and their
current level of services while the proposed change is litigated, as
"`stay-put' obviously does not mean providing some of the same services,
but declining others, at DCPS's unilateral discretion." Pls.' Mot. for
Summ. J. at 4.
Defendants have not challenged plaintiffs' assertions that the 2000-01
IEPs provided for the services for which plaintiffs now seek
reimbursement. Thus, because the 2000-01 IEPs control which services
plaintiffs should receive, it is clear that plaintiffs are entitled to
remain at McLean and receive the full range of services provided for
under the 2000-01 IEPs. As plaintiffs correctly conclude, "defendants
were obligated to pay, were ordered to pay, and have violated the Court's
orders by refusing to do so." Id. at 5.
As set forth above, the Court finds that the McLean School was
plaintiffs' current educational placement for the 2001-2002 school year,
and that this placement includes the full realm of educational services
provided for in the 2000-01 IEPs. Accordingly, DCPS was required to fund
plaintiffs' education at
McLean during the pendency of the due process appeal, and this it has not
done. Plaintiffs' parents, through the IEP process, concluded that McLean
was the appropriate placement for their children; because of this
choice, a choice protected by the IDEA, they have been forced to
personally fund plaintiffs' education, effectively negating their right to
a free public education. "The Act was intended to give handicapped
children both an appropriate education and a free one; it should not be
interpreted to defeat one or the other of those objectives." Burlington
v. Dep't of Educ. of Massachusetts, 471 U.S. 359, 372 (1985).
It is well-settled that the Court is empowered to grant retroactive
reimbursement to parents faced with shouldering the costs to maintain
their child's current educational placement during the appeal of a
placement change. Id. at 370-71. Accordingly, for the reasons set forth
above, it is hereby
ORDERED that plaintiffs' motion for summary judgment is GRANTED; and it
FURTHER ORDERED that defendants' motion for summary judgment is
DENIED; and it is
FURTHER ORDERED that defendants are to reimburse plaintiffs for the
remaining costs of plaintiffs' 2001-2002 placement at McLean school,
including all associated educational services and including attorneys'
fees and costs; and it is
FURTHER ORDERED that plaintiffs shall submit an itemized list of all
expenses and attorneys' fees for which they seek reimbursement within 14
days of this order; and it is
FURTHER ORDERED that defendants are not entitled to reimbursement for
any amounts previously paid for plaintiffs' placements at McLean for the
2001-2002 school year.