United States District Court, District of Columbia
VELMA OLU-COLE, Parent and next friend of M.K. Plaintiff,
E.L. HAYNES PUBLIC CHARTER SCHOOL, Defendant.
N. MCFADDEN United States District Judge
Velma Olu-Cole, on behalf of her minor son M.K., seeks a
preliminary injunction against defendant E.L. Haynes Public
Charter School (“Haynes” or the
“School”) “from continuing to violate the
Individuals with Disability Improvement Act's
(‘IDEA') stay put provision.” Mem. of P.
& A. in Supp. of Pl.'s Mot. for a Preliminary
Injunction (“Mot. for Prelim. Injunction”) 3, ECF
No. 4-1. Ms. Olu-Cole's son, M.K., is a 17 year old
student classified under the IDEA as having an emotional
disturbance disability. Compl. ¶ 5. Pursuant to this
classification, M.K. is entitled to receive educational
services personalized to his needs, as well as to certain
procedural protections in the event that the School
unilaterally excludes him from campus. See id.
¶¶ 11-12; 20 U.S.C. §§ 1415(j),
(k)(1)(G). In November 2017, M.K. physically attacked a
fellow student. Compl. ¶ 13. Haynes subsequently
suspended M.K. for 45 days. Id. ¶ 31. Now that
the 45 day period has elapsed, Ms. Olu-Cole seeks a
preliminary injunction against Haynes' continued
exclusion of M.K. from campus, which she alleges violates his
individualized education program by depriving him of the
ability to interact with his peers. Mot. for Prelim.
Injunction 16. Though a preliminary injunction is
“presumptive” in IDEA stay put cases upon
meeting a two part inquiry, Eley v. D.C., 47
F.Supp.3d 1, 8 (D.D.C. 2014), the presumption can be overcome
if a different result is warranted through application of the
traditional four part test. Laster v. D.C., 439
F.Supp. 2d. 93, 99 (D.D.C. 2006). Applying the traditional
test for preliminary injunctions, I find that although the
IDEA's stay put provision and implementing regulations
may otherwise require M.K.'s attendance at Haynes, M.K.
will not suffer irreparable harm through denial of the relief
requested, that granting the relief may injure other
interested parties, and that the public interest weighs
strongly in favor of the School. Accordingly, the
Plaintiff's motion will be denied.
The IDEA and its Stay Put Provision
IDEA requires states and local educational agencies
(“LEAs”)-i.e., schools-which accept
federal funding to provide a “free appropriate public
education” for disabled children. Honig v.
Doe, 484 U.S. 307, 308 (1988) (discussing the Education
of the Handicapped Act, now enacted as the IDEA). This
includes the development and implementation of an
individualized education program (“IEP”) for each
disabled child, with goals designed to “meet the
child's needs that result from the child's disability
to enable the child to be involved in and make progress in
the general educational curriculum.” 20 U.S.C. §
1414(d)(1)(A). This also includes certain procedural
protections, such as a parent's or a school's right
to an administrative hearing if the parent or school
disagrees with a placement decision, and the so-called
“stay put” provision, which provides that during
an administrative or judicial proceeding, the child shall
remain in his “current educational placement.”
See 20 U.S.C. §§ 1415(j), (k)(3); see
also 34 C.F.R. §§ 300.518, 300.532
(implementing regulations). The scheme as a whole reflects
congressional recognition that disabled children had been
commonly “excluded from the public school system
altogether [or] ‘warehoused' in special classes or
were neglectfully shepherded through the system until they
were old enough to drop out.” Hong, 484 U.S.
a 17 year old male student at Haynes who is eligible for
special education and related services under the IDEA under
the emotional disturbance classification. Compl. ¶ 5.
His current IEP provides that he receive seven hours a week
of specialized instruction within the general education
setting, 30 hours per week of counseling outside the general
education setting, and two hours a year of consultative
occupational therapy. Id. ¶ 11. Thus,
M.K.'s IEP contemplates that he spend approximately 98%
of his school instruction in a general education setting.
Id. ¶ 12.
last three months, however, M.K. has been in an
“interim alternative educational setting, ” off
of School grounds, due to a violent incident on November 6,
2017. See Compl. ¶ 13. According to M.K.'s
mother, the incident began when M.K. allegedly
“snatched a juice box” from another student,
prompting the other student to grab it back. Id.
M.K. then pushed the student, who fell down. Id.
M.K. “repeatedly” punched the student in the
head, resulting in the student suffering a concussion.
Id. Although a Manifestation Determination Review
panel determined that M.K.'s behavior was a manifestation
of his disability, id ¶ 14, Haynes suspended
M.K. from school for 45 days for his conduct. Id.
¶ 31. Since then, M.K. has received homebound education
through tutors. Id. ¶ 34.
January 11, 2018, Haynes convened a change in placement
meeting with the Office of the State Superintendent for
Education (“OSSE”) to seek approval to transfer
M.K. to a different school, which was denied. Id.
¶¶ 35, 37. On January 24, 2018, after nearly
serving his 45 day suspension, M.K. attempted to return to
Haynes, which refused to admit him. Id. ¶ 40.
The following day, on January 25, Haynes filed a due process
complaint with OSSE's Office of Dispute Resolution
seeking to change M.K.'s placement to another school.
Id. ¶ 43. A determination in the administrative
hearing is expected on or around March 9, 2018. Mot. for
Prelim. Injunction 15. Since the 45 day period elapsed on
January 31, 2018, M.K. has remained at home. See
Mot. for Prelim. Injunction 15 n.5.
February 1, 2018, Ms. Olu-Cole filed her complaint and
accompanying motions for a temporary restraining order and a
preliminary injunction, seeking that I order Haynes to accept
M.K. back on campus during the pendency of the due process
hearing. Compl. 12. After hearing oral argument on the
motions on February 2, 2018, I denied the motion for a
temporary restraining order. Minute Order, Feb. 2, 2018.
Following an expedited briefing schedule and a further
motions hearing held on February 13, 2018, the motion for a
preliminary injunction is now ripe for resolution.
movant invoking the stay put provision is
“presumptively entitled” to an injunction upon a
showing that that: (1) proceedings under the IDEA are
pending; and (2) a change in the “then-current
educational placement” of the disabled child is sought.
Eley, 47 F.Supp.3d at 8. The school, however, may
“overcome the presumption if it can demonstrate that
application of the traditional four part preliminary
injunction test warrants a different result.”
Laster, 439 F.Supp. 2d. at 99 (citing
Honig, 484 U.S. at 327; Henry v. Sch. Admin.
Unit No. 29, 70 F.Supp.2d 52, 58 n.5 (D.N.H. 1999)). The
traditional four-part test examines whether the Plaintiff has
a substantial likelihood of success on the merits, the
likelihood that irreparable harm will occur in the absence of
the relief sought, the balance of equities (i.e.,
that an injunction would not substantially injure other
interested parties), and the public interest. Spencer v.
D.C., 416 F.Supp.2d 5, 8 (D.D.C. 2006). The factors are
balanced against each other and in making its determination,
the court looks to “all four factors, taken
together.” Davis v. Pension Benefit Guar.
Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
matter involves a twist on a typical stay put case insofar as
it intertwines IDEA's provisions regarding a request for
a change in placement with those governing disciplinary
proceedings, I begin with an analysis of the applicable
regulatory scheme. The IDEA's stay put provision, as