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Morris Johnson, et al v. District of Columbia

March 16, 2012

MORRIS JOHNSON, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Morris Johnson filed suit as the parent and next friend of his minor son, M.J., against Defendant the District of Columbia ("the District"). M.J. receives special education services from the District pursuant to the Individuals with Disabilities Education Improvement Act ("IDEA"),*fn1 20 U.S.C. § 1400 et seq. This suit seeks to force the District to allow M.J. to attend his former school (Deal Middle School) while the challenge to M.J.'s placement at McFarland Middle School is under review by a hearing officer. Concurrently with the Complaint, Plaintiffs filed a [2] Motion for a Temporary Restraining Order. During a telephonic conference call with the Court, the parties agreed to convert Plaintiffs' TRO request into briefing on the merits of Plaintiffs' underlying Complaint, to be completed on an expedited basis. 2/27/12 Minute Order. Plaintiffs subsequently filed a [6] Motion for Summary Judgment, supplementing their prior motion. The summary judgment motion is now fully briefed*fn2 and ripe for adjudication. After considering the parties' briefs, the accompanying exhibits, and the applicable authorities, Plaintiffs' Motion for Summary Judgment is DENIED.

I. BACKGROUND

A. Statutory Framework

The IDEA was enacted to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). Once a child is identified as disabled, the school district must convene a meeting of a multi-disciplinary team to develop an individualized education program ("IEP") for the student. See § 1414.*fn3 The IEP must include a variety of information, including the child's current levels of academic achievement and functional performance, measurable annual goals, how the child's progress towards the goals will be measured, and the special education and related services to be provided to the child. § 1414(d)(1)(A)(I).

If the parent of a child receiving services pursuant to the IDEA believes his or her child's IEP or school placement is inadequate, the parent may file a "due process complaint." E.g., § 1415(b)(7)(A); § 1415(k)(3). The IDEA further provides that Except as provided in subsection (k)(4), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed. § 1415(j). Known as the "stay-put provision," this section mandates that once a parent files a due process complaint, "the child shall remain in the interim alternative educational setting pending the decision of the hearing officer . . . unless the parent and the State or local educational agency agree otherwise." § 1415(k)(4); accord 34 C.F.R. § 300.518(a).

B. Factual Background

M.J. is a twelve year old student currently in the sixth grade. Pls.' Ex. 1 (Compreh. Psych. Eval.), at 1. In the third grade, M.J. was diagnosed with a learning disorder and began to receive special education services. Id. at 3. Prior to entering middle school, M.J.'s IEP identified his primary disability as "specific learning disability" and dictated that M.J. should receive five hours per week of specialized instruction outside the general education setting in each of the following academic areas: reading, written expression, and mathematics. Pls.' Ex. 3 (1/23/12 Hearing Officer Determination ("HOD")), at 3. The IEP further provided that M.J. should receive 30 minutes of specialized instruction outside the general education setting each in the following areas: behavioral support services and occupational therapy. Id. Finally, the IEP required M.J. to receive the support of a dedicated aide and access to "Other Classroom Aids," such as access to a computer, open book examinations, modified projects to fit M.J.'s attention threshold. Id.

Before entering middle school, M.J. underwent another comprehensive psychological evaluation, which diagnosed M.J. with Attention-Deficit/Hyperactivity Disorder, Combined Type, and classified as having a learning disorder, not otherwise specified. Pls.' Ex. 1, at 12. For the 2011-2012 school year, M.J. enrolled in Deal Middle School ("Deal"), his neighborhood middle school. Pls.' Ex. 3, at 4. In the fall of 2011, the District convened several meetings to revise M.J.'s IEP. Id. at 4-5. Among other changes, the District decided to reduce M.J.'s hours of specialized instruction by half. Id. at 5. M.J.'s parent filed a due process complaint, arguing that M.J.'s October 31, 2011 IEP denied M.J. a free appropriate public education. Pls.' Ex. 2 (11/9/11 Due Process Compl.).

In ruling on the initial due process complaint, the Hearing Officer found that rather than transfer M.J. to a school that could provide the services outlined in his IEP, the District had simply revised M.J.'s IEP to match the lower level of services available at Deal. Pls.' Ex. 3, at 5. The Hearing Officer denied the parent's request that M.J. receive "full-time out of general education specialized instruction," and instead found that the full fifteen hours of specialized instruction previously required by M.J.'s IEP was sufficient to provide M.J. with a free appropriate public education. Id. at 8. Finally, the Hearing Officer denied the parent's request that M.J. be placed in a separate day school, but explicitly found that Deal could only provide the specialized instruction in a "resource setting with [intellectually disabled] students or a co-taught setting in general education classrooms only, neither of which is appropriate for [M.J.]," therefore, "the location of services offered by [the District] pursuant to this decision must be something other than [M.J.'s] current DCPS middle school." Id. at 8-9 (emphasis added).

In light of the Hearing Officer Determination ("HOD"), the parties convened to establish a new IEP for M.J. Pls.' Ex. 4 (2/1/12 IEP). In accordance with the HOD, the District designated a new school for M.J. to attend, MacFarland Middle School ("MacFarland"). Pls.' Ex. 5 (2/6/12 Due Process Compl.), at 5. Plaintiffs allege they asked for an opportunity to visit the school before consenting to M.J. attending MacFarland. Id. After visiting the school, the Plaintiffs objected, but the District moved forward with transferring M.J. to MacFarland, including by un-enrolling M.J. from Deal. Id. On February 6, 2012, Plaintiffs filed a second due process complaint, alleging MacFarland could not provide the specialized instruction required by M.J.'s new IEP. Id. at 7. Three days later, Plaintiffs filed a motion with the Hearing Officer invoking the stay-put provision and requesting that M.J. be placed at a private school while the second due process complaint is adjudicated. Pls.' Ex. 6 (2/9/12 Mot. to Invoke "Stay Put"), at 4. The Hearing Officer denied Plaintiffs' motion, finding that "on 2/1/12, the revised IEP became [M.J.'s] current educational program and MacFarland [Middle School] became [M.J.'s] current placement." Pls.' Ex. 10 (2/16/12 Hearing Officer Order), at 3. Plaintiffs subsequently filed the present action, seeking an injunction requiring M.J. to attend Deal or a private school of his parent's choice pending resolution of the second due process complaint. Compl., ECF No. [1], at 7.

II. LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When considering a motion for summary judgment, the court may not make credibility determinations or weigh the evidence; the evidence must be analyzed in the light most favorable to the nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The stay put provision has been interpreted as imposing an automatic statutory injunction, like the automatic stay in bankruptcy." Casey K. ex rel. Norman K. v. St. Anne Cmty High Sch. Dist., 400 F.3d 508, 511 (7th Cir.2005) (citations omitted). Once a due process complaint has been filed, a parent can invoke the stay-put provision when the school district proposes a change in the child's "then-current educational placement." ยง 1415(j). The IDEA does not define the term "then-current educational placement," but the courts have explained that a child's educational placement "falls somewhere between the physical school attended by a child and the abstract goals of a child's IEP." Bd. of Educ. of Cmty High Sch. Dist. No. 218, Cook Cnty., Ill. v. Ill. State Bd. of Educ., 103 F.3d 545, 548 (7th Cir. 1996). The parent seeking the stay-put injunction "must identify, at a minimum, a fundamental change in, or elimination of a basic element of the education program in order for the change to qualify as a change ...


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