The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Claim of Helen Barksdale, parent and next friend of R.B.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on plaintiff's objections to the Report and Recommendation of the Special Master recommending denial of plaintiff's motion for a preliminary injunction requiring the District of Columbia Public Schools ("DCPS") to implement two Hearing Officer Determinations ("HODs") issued in January 2003 and November 2004. Upon careful consideration of the arguments of the parties, the Court adopts in part and rejects in part the Special Master's Report and Recommendation, and denies in part and grants in part plaintiff's motion for preliminary injunction.
R.B., represented in this action by his mother and next friend Helen Barksdale, is an emotionally disturbed and learning disabled fifteen-year-old DCPS student. In 2001, R.B. was evaluated by DCPS and found eligible for special education. In 2002, he became involved in activities that brought him to the attention of the D.C. Superior Court. Because of R.B.'s behavior problems and poor performance in school, his mother sought an administrative due process hearing. An HOD, issued on January 15, 2003, ordered DCPS to conduct clinical psychological, psycho-educational and functional behavioral assessments as well as a social history of R.B., and to develop an individualized education program ("IEP") for him. DCPS conducted all but the clinical psychological evaluation and conducted a Multidisciplinary Team ("MDT")/IEP meeting on May 16, 2003.
R.B.'s mother requested a second hearing in October 2003. On November 24, 2003, the hearing officer issued a second HOD, ordering DCPS within 10 days to convene an MDT/IEP meeting to re-evaluate R.B.'s current plan and to determine an appropriate interim placement for him, and to conduct clinical psychological and neurological evaluations of R.B. within 60 days. The prescribed MDT/IEP meeting was not conducted.
On June 9, 2004, plaintiff filed a motion for a preliminary injunction to require DCPS to conduct the IEP meeting required by the November 2003 HOD, which motion was referred to the Special Master pursuant to the Court's February 12, 1997 Order of Reference. See Order of Reference, Blackman v. District of Columbia, Civil Action No. 97-1629 (D.D.C. Feb. 12, 1997). While residing at the Oak Hill Youth Center, a juvenile detention facility, in the summer and early fall of 2004, R.B. underwent neuropsychological and psychiatric evaluation pursuant to an Order of the D.C. Superior Court, which was still exercising supervision over R.B.
On the basis of these evaluations, an IEP meeting was conducted on September 17, 2004. The IEP meeting was adjourned with the agreement that the IEP team would re-convene within 30 days to determine the amount and kind of compensatory education to which R.B. would be entitled for DCPS's past failures to provide R.B. with an appropriate public education. The IEP meeting was never re-convened, and the issue of R.B.'s compensatory education was not considered by the IEP team.
At a disposition hearing on November 9, 2004, the Superior Court ordered R.B. to attend Sunrise Academy, a private school in the District of Columbia.*fn1 In November 2004, R.B. enrolled at Sunrise Academy, where he has remained since.
On February 1, 2005, the Special Master issued a Report and Recommendation that expressed serious concern with DCPS's failure to comply with the two HODs, but nonetheless recommended that the Court deny plaintiff's motion for a preliminary injunction because of the Superior Court's continued involvement in R.B.'s case, including its Order that he be placed at Sunrise Academy.*fn2 If this Court were to order R.B. placed elsewhere, the Special Master reasoned, DCPS would run a substantial risk of noncompliance with either this Court's Order or that of the Superior Court. Furthermore, the Special Master expressed her view that further federal intervention could "interfere with judicial administration at a local level," and would "only produce additional hurdles in the efforts to provide an appropriate education to R.B." Report and Recommendations of the Special Master (Feb. 1, 2005) at 6-7.
With respect to plaintiff's request that DCPS be ordered to determine an interim and/or permanent placement for R.B., the Court agrees with the conclusion of the Special Master (unaddressed in plaintiff's opposition to the Special Master's Report and Recommendation) that attempting to dictate R.B.'s placement would interfere with the Superior Court's "ongoing and active" supervision of R.B.'s case and ultimately interfere with the provision of the appropriate education to which R.B. is entitled.*fn3 Moreover, plaintiff's original request for an IEP regarding placement and an interim placement are moot, as an IEP meeting was held on September 17, 2004, the requested evaluations have been substantially completed, and the Superior Court has ordered a placement for R.B. at Sunrise Academy. Accordingly, the Court will adopt the Special Master's recommendation that plaintiff's motion be denied in this respect.*fn4
Plaintiff also asserts, however, that R.B. is entitled to "compensatory education" to make up for the free appropriate education of which he was deprived while DCPS failed to implement the two HODs. The Special Master's Report and Recommendation does not address plaintiff's request for compensatory education, nor does defendant's brief.
The November 2003 HOD found (and DCPS does not dispute) that DCPS failed to comply with the January 2003 HOD and failed to develop an appropriate IEP for R.B. It also found that DCPS failed to provide R.B. with a free appropriate public education, and ordered DCPS to convene an MDT/IEP meeting and, among other tasks, to "determine the amount, form and method of implementation of compensatory education due [R.B.], if any." DCPS concedes that it failed to fulfill these requirements, as well.
Where a school system fails to provide special education or related services, a student may be entitled to compensatory education. See Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); Hall v. Knott County Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991); Miener v. Missouri, 800 F.2d 749, 753 (8th Cir. 1986); Walker v. District of Columbia, 157 F. Supp.2d 11, 30 (D.D.C. 2001). DCPS's failure to meet its requirements in this respect is undisputed. Such a deprivation of a student's right to a free appropriate education constitutes irreparable harm that may warrant an injunction. 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"); Blackman v. District of Columbia, 277 F. Supp.2d 71, 79 (D.D.C. 2003) (per se harm results from denial of free appropriate education stemming from failure to provide timely due process hearing). Certainly here, in light of R.B.'s continuing behavioral problems and lack of educational progress since he first was found eligible for special education in 2002, it would be difficult to conclude that DCPS's failure was without consequence to R.B. A determination of the "amount, form, and method of implementation of compensatory education due" therefore is necessary.
Unlike an injunction dictating a placement, an injunction requiring DCPS to reconvene the MDT/IEP meeting begun in September 2004, with the specific purpose of determining an appropriate course of compensatory education for R.B., imposes no harm on defendants. It would neither interfere with the Superior Court's administration of R.B.'s case nor put DCPS at risk of being subject to conflicting court orders. Moreover, the determination of an award of compensatory education is not likely to interfere with efforts to provide R.B. an appropriate education, but rather is a necessary step in providing R.B. the "basic floor of opportunity" that the IDEA seeks to guarantee each handicapped child. See Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982); Reid v. District of Columbia, 401 F.3d at 524 (compensatory education designed to ensure that student is appropriately educated within the meaning of the IDEA is appropriate relief for failure to provide free appropriate public education). Accordingly, the Court rejects ...