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Z.B. v. District of Columbia

United States District Court, District of Columbia

February 16, 2018

Z.B., a minor, by and through his mother, Sylvia Sanchez, Plaintiff
v.
THE DISTRICT OF COLUMBIA, et al., Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge.

         This case is about a disagreement over which school a child with autism should attend. That child, Z.B., is currently attending the nonpublic Kingsbury Day School, but District of Columbia Public Schools (“DCPS”) has determined that the proper location of service to implement Z.B.'s Individualized Education Program (“IEP”) is another nonpublic school, Kennedy Krieger. Plaintiff has filed this lawsuit seeking an order that Z.B. remain at Kingsbury Day School at public expense. After filing suit, Plaintiff filed the currently pending [9] Motion for Preliminary Injunction to Compel Stay-Put under the Individuals with Disabilities Education Act (“IDEA”). In summary form, Plaintiff's motion seeks to take advantage of a provision of the IDEA which allows a child with disabilities, under certain circumstances, to remain in his or her current educational placement while the appropriateness of a proposed change is litigated.

         Having carefully reviewed the administrative record, the pleadings, [1] and the relevant authorities, the Court determines that Plaintiff is not entitled to a stay-put injunction because Plaintiff is not challenging a fundamental change to Z.B.'s current educational placement. Plaintiff's Motion for Preliminary Injunction to Compel Stay-Put is therefore DENIED. By separate Order, the Court will instruct the parties to meet and confer and propose a schedule for briefing dispositive motions in this matter.

         I. BACKGROUND

         A. Statutory Background

         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 within which the child resides must convene a meeting of a multidisciplinary team to develop an IEP for the student. See § 1414. “The IEP is in brief a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs.” Leonard v. McKenzie, 869 F.2d 1558, 1560 n.1 (D.C. Cir. 1989) (quoting Sch. Comm. of the Town of Burlington v. Dept. of Educ., 471 U.S. 359, 368 (1985)). As such, it represents the “modus operandi” of the IDEA. Id. The IEP must be formulated in accordance with the terms of the IDEA and “should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 204 (1982). Once the IEP is developed, the school system must provide an appropriate educational placement that comports with the IEP. See Alston v. District of Columbia, 439 F.Supp.2d 86, 90 (D.D.C.2006). “If no suitable public school is available, the school system must pay the costs of sending the child to an appropriate private school.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (citation and internal editing omitted).

         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., 20 U.S.C. § 1415(b)(7)(A). 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.

Id. § 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.” Id. § 1415(k)(4). A party seeking a 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 in educational placement.” Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984).

         B. Factual Background

         Plaintiff Z.B. has been identified as a High Function Student on the Autism Spectrum. See Am. Compl., ECF No. 3, ¶ 5. Z.B. is thirteen years old and currently enrolled in the 8th grade at Kingsbury Day School, a nonpublic school in Washington D.C. Id. Z.B.'s October 12, 2016 IEP notes that, among other things, Z.B. requires a small class size with a low student-to-teacher ratio, individualized instruction, and counseling for behavioral and social issues. Id. ¶ 29. That IEP currently provides for Z.B. to have 26 hours per week of “specialized instruction” outside the general education setting, 480 minutes per month of occupational therapy services outside the general education setting, 360 minutes per month of physical therapy services outside the general education setting, 240 minutes per month of speech-language pathology services outside the general education setting, and 360 minutes per month of behavioral support services outside the general education setting, in a normal school year. Id. ¶ 28.

         On April 14, 2017, DCPS sent Plaintiff a document entitled “Prior Written Notice - Intent to Discuss Change in Placement, ” which proposed meeting to discuss moving Z.B. from Kingsbury Day School to a different placement for the 2017-18 school year. Id. ¶ 31. Between April and June 2017, Defendant allegedly attempted to persuade Plaintiff Sanchez to allow Z.B. to visit other nonpublic schools that Z.B. might attend, but Plaintiff did not agree with Z.B. changing schools because she contended that the alternatives were not able to implement Z.B.'s IEP, and because of the distance between those schools and Plaintiff's home. Id. ¶ 34.

         On July 11, 2017, DCPS submitted a referral for Z.B. to the nonpublic school Kennedy Krieger. Id. ¶ 36. On August 7, 2017, Z.B. was accepted into Kennedy Krieger with an 11-month program, including: 30 hours per week of classroom instruction during the school year, 22 hours per week of classroom instruction during the summer, 240 minutes per month of direct speech and language therapy, 480 minutes per month of direct occupational therapy, 360 minutes per month of direct behavioral support services, and 360 minutes per month of direct physical therapy services, and daily transportation. Id. ¶ 37.

         On August 11, 2017, Plaintiff filed a due process complaint with the District of Columbia Office of the State Superintendent of Education to challenge DCPS's decision that Kennedy Krieger is now the proper location of services for Z.B.'s IEP. Id. ¶ 6. The Hearing Officer in that proceeding ultimately issued a determination that Plaintiff had not carried her burden. Id. ¶ 11. In pertinent part, the Hearing Officer concluded that Kennedy Krieger could implement Z.B.'s IEP, that the differences between Kingsbury Day School and Kennedy Krieger (i.e., that Kennedy Krieger has a shorter bell schedule but provides services over a longer period) represented only a ...


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