A.D. v. District of Columbia ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
A.D., et al.,
Plaintiffs,
Civil Action No. 20-cv-2765 (BAH)
v.
Chief Judge Beryl A. Howell
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiffs, A.D., a special-education eligible student residing in the District of Columbia,
and her parents, E.D. and C.D., are before this Court asserting their rights, under 20 U.S.C. §
1415(j), the “stay-put” provision of the Individuals with Disabilities Education Act (“IDEA”). 1
They seek to maintain the student’s current educational placement at The Lab School of
Washington, see Pls.’ Mot. Preliminary Inj. (“Pls.’ Mot.”) at 1, ECF No. 8, and tuition
reimbursement retroactively to the start of the 2020–21 school year, see Pls.’ Mem. Supp. Mot.
Preliminary Inj. (“Pls.’ Mem.”) at 11, ECF No. 8, and prospectively “throughout the resolution
of this appeal,” Pls.’ Reply Def.’s Opp’n Mot. Preliminary Inj. (“Pls.’ Reply”) at 6, ECF No. 11.
The District of Columbia (“the District”) opposes plaintiffs’ request for stay-put relief. See
Def.’s Opp’n Pls.’ Mot. Preliminary Inj. (“Def.’s Opp’n”) at 1, ECF No. 10. Upon consideration
of the parties’ arguments, plaintiffs’ motion is granted.
1
The Individuals with Disabilities Education Improvement Act (“IDEIA”) was enacted in 2004 to
reauthorize the IDEA, see Pub. L. No. 108-446, 118 Stat. 2647 (Dec. 3, 2004) (effective July 1, 2005), but the short
title continues to state that the law may be cited as the “Individuals with Disabilities Education Act,” 20 U.S.C. §
1400(a), which is the reference used in this opinion.
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I. BACKGROUND
The facts surrounding the plaintiffs’ three due process complaints culminating in the
instant lawsuit and pending motion for a stay-put order are summarized below, followed by a
brief review of the procedural history.
A. Factual Background
A.D. is a fifteen-year-old, educationally disabled student who currently attends The Lab
School, a full-time, private school in Washington, D.C. See Compl. ¶¶ 4, 6, ECF No. 1. From
pre-Kindergarten through first grade, A.D. attended Hyde-Addison Elementary School (“Hyde-
Addison”), a public school within the District of Columbia Public Schools system (“DCPS”). Id.
¶ 7. While attending Hyde-Addison, A.D.’s parents requested academic and cognitive testing
due to A.D.’s ongoing struggles with reading, writing, spelling, and her social interactions with
peers, id. ¶¶ 7–8, but DCPS did not provide the requested testing nor any special education
services to A.D., id. ¶ 8.
In August 2012, A.D. enrolled in another school, Creative Minds International Public
Charter School (“Creative Minds”), for second grade, where she received an assessment “to
determine her cognitive and academic functioning and any disabilities that might have been
impacting those disabilities,” id. ¶ 10. Based on that assessment, Creative Minds’ Individualized
Education Program (“IEP”) Team found A.D. eligible to receive special education services under
the IDEA and developed an IEP. Id. ¶ 11. Over the following four years, however, A.D. failed
to make “appropriate educational progress” while receiving “minimal services” at Creative
Minds. Id. ¶ 12.
In January 2016, A.D. underwent a psychoeducational evaluation, id. ¶ 13, which
concluded that A.D. continued to have a “Specific Learning Disability [(“SLD”)] in the area of
writing” and experienced “weaknesses in areas of attention control, working memory and
2
processing speed,” id. The evaluation was submitted to Creative Minds, id. ¶ 14, prompting the
school to prepare a new IEP on February 10, 2016 (“2016 IEP”), to provide A.D. with “one hour
per week of specialized instruction outside general education, 30 minutes per week for
Behavioral Support Services (‘BSS’), and 30 minutes per week of occupational therapy (‘OT’).”
Def.’s Opp’n, Ex. 3, Hearing Officer Determination, September 8, 2020 (“September 2020
HOD”) ¶ 3, ECF No. 10-3.
A.D.’s parents believed the 2016 IEP adopted by Creative Minds was an “inadequate
educational program,” Compl. ¶ 16, and thus initiated an administrative due process action.
Since that time, litigation has been sporadically ongoing in this Court against the District over
the sufficiency of this 2016 IEP and two subsequent IEPs issued by DCPS in December 2018
and November 2019, as described below.
1. July 27, 2018 Hearing Officer Determination on First Due Process
Complaint
Due to their dissatisfaction with the 2016 IEP, at the beginning of the 2016–17 school
year, A.D.’s parents removed A.D. from Creative Minds and enrolled her at The Lab School, a
“full-time, nonpublic school approved for special education placements in the District of
Columbia for Children with learning disabilities, attentional, executive, and language disorders,
and sensory-motor/sensory-integration needs” like A.D. Id. ¶ 16–17. Plaintiffs subsequently
filed a due process complaint against Creative Minds for “failure to provide an appropriate IEP
in February 2016 for the 2016–17 and 2017–18 school years,” and sought tuition reimbursement
for The Lab School for the 2016–17 and 2017–18 school years. September 2020 HOD ¶ 5. 2
This complaint was resolved in a Hearing Officer Determination (“HOD”) issued on July 27,
2
The complaint states that this due process complaint was filed on January 3, 2018, Compl. ¶ 21, while the
September 2020 HOD indicates that this due process complaint was filed on May 4, 2018, September 2020 HOD ¶
5. This date discrepancy is immaterial to resolution of the pending motion.
3
2018 (“July 2018 HOD”). Pls.’ Mem., Ex. 1, July 2018 HOD, ECF No. 8-1. Specifically, the
July 2018 HOD determined that the Creative Minds “denied the Student educational benefit, and
therefore a [free appropriate public education (“FAPE”)], through its IEP dated February, 2016,”
July 2018 HOD at 16, but nevertheless did not provide for all of the relief requested. Plaintiffs
were granted reimbursement for only one-half of The Lab School tuition for the 2016–17 school
year, rather than the requested reimbursement for that entire school year as well as the 2017–18
school year. Id. at 23. The July 2018 HOD denied reimbursement for the 2017–18 school year
because DCPS, not Creative Minds, was A.D.’s local education agency (“LEA”) for that school
year, see July 2018 HOD at 18, 23, and reduced the reimbursement award for 2016–17 by half
because “[p]laintiffs failed to provide Creative Minds proper notice under 20 U.S.C. §
1412(a)(10)(C)(iii),” A.D. v. Creative Minds Int’l Public Charter School, Civil Action No. 18-
cv-2430 (CRC) (DAR), 2020 U.S. Dist. LEXIS 184173 at *8–9 (D.D.C. Sept. 28, 2020); July
2018 HOD at 22.
Plaintiffs appealed the July 2018 HOD findings, and on September 28, 2020, another
Judge on this Court adopted, over Creative Minds’ objections, the Magistrate Judge’s Report and
Recommendation, finding that: (1) the February 2016 IEP was inadequate under the IDEA, A.D.
v. Creative Minds Int’l Public Charter School, 2020 U.S. Dist. LEXIS 184173 at *13; and (2)
plaintiffs complied with the notice provisions of the IDEA and were thereby entitled to full
tuition reimbursement, id. at *17. Creative Minds was ordered to pay the tuition reimbursement
for the full 2016–17 school year. Id. at *23.
During the summer of 2018, A.D.’s parents enrolled her as a student in DCPS to begin
the special education eligibility process. Compl. ¶ 24. A variety of diagnostic tests were
administered to A.D., September 2020 HOD ¶¶ 6–8; Compl. ¶ 25–32, resulting in the November
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28, 2018 DCPS determination that A.D. “remained eligible for special education and related
services with a classification of [multiple disabilities] for SLD and Other Health Impairment
(‘OHI’),” September 2020 HOD ¶ 9. A new, third IEP was prepared by DCPS, on December 5,
2018, that provided for five hours per week of specialized instruction outside general education,
ten hours per week of specialized instruction in general education, two hours per month of BSS
and two hours per year of OT consultation services. Id. ¶ 10. Shortly thereafter, however, on
February 12, 2019, The Lab School prepared an IEP for A.D. (“February 2019 IEP”), prescribing
thirty-two hours per week of specialized instruction, three hours per month of individual
psychological services from a clinical psychologist, and three hours per month of group
psychological services, along with specific, measurable learning objectives. Id. ¶ 11.
2. August 5, 2019 Hearing Officer Decision on Second Due Process
Complaint
Plaintiffs filed a second Due Process Complaint on April 22, 2019 challenging the
December 2018 IEP and alleging that (1) the District failed to provide an appropriate IEP and
placement for the 2018–19 school year, citing the lack of full-time specialized instruction or
placement in appropriate outside programs, and inappropriate building and class size, noise
levels, pace of instruction, instructional presentation method and level of staffing, and (2) The
Lab School was an appropriate placement for the student. Id. ¶ 12. The Hearing Officer
Decision issued on August 5, 2019 (“August 2019 HOD”), again, found in plaintiffs’ favor,
concluding that the District had not met its burden of persuading that five hours per week of
specialized instruction outside general education and ten hours per week of specialized
instruction within general education were “reasonably calculated to enable [A.D.] to make
appropriate progress in [A.D.’s] circumstances,” and that The Lab School is “proper and
appropriate for [A.D.].” Id. ¶ 12. Consistent with these findings, DCPS was ordered to
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reimburse plaintiffs for tuition and related services at The Lab School “for the entire 2018–19
school year, for the first half of the 2019–20 school year, and ‘until a FAPE is offered by
DCPS.’” Id. (quoting August 2019 HOD at 21).
Notably, an HOD ordering tuition reimbursement at a non-public school is considered an
“agreement” for “stay-put” purposes. 34 C.F.R. § 300.518(d) (“If a hearing officer in a due
process hearing . . . agrees with the child’s parents that a change of placement is appropriate, that
placement must be treated as an agreement between the State and the parents”). The August
2019 HOD reflects A.D.’s last agreed-upon placement.
Pursuant to the August 2019 HOD, A.D. began ninth grade at The Lab School for the
2019–20 school year funded by DCPS. Compl. ¶ 51. A new, fourth IEP issued by DCPS on
November 25, 2019 (“November 2019 IEP”) prescribed twenty hours per week of specialized
instruction outside general education, three hours per month of BSS, two hours per month of OT
services, and thirty minutes per month of OT consultation services. September 2020 HOD ¶ 14.
This amounted to more services than set out in the December 2018 IEP, but fewer services than
A.D. was receiving at The Lab School under the February 2019 IEP. DCPS recommended
A.D.’s placement for implementation of the November 2019 IEP at A.D.’s neighborhood school,
Roosevelt High School, a public high school in Northwest Washington, D.C. Compl. ¶ 61.
Plaintiffs rejected the November 2019 IEP as written, id. ¶ 60, and disagreed with this
IEP’s prescription of only twenty hours of specialized education outside of general education,
September 2020 HOD ¶ 15. A.D.’s mother also visited Roosevelt High School, on December
18, 2019, to “gauge its feasibility for [A.D.’s] placement,” but quickly concluded that the school
was inappropriate for A.D. because of the limited services offered by DCPS, the limited services
6
available at the school itself, the restrictions on electronic devices in the school, and also the size
and noise level of the school. Id. ¶ 16; Compl. ¶ 66.
3. September 8, 2020 Hearing Officer Decision on Third Due Process
Complaint, Which Decision is At Issue in Instant Lawsuit
Plaintiffs filed a third Due Process Complaint, submitted initially on January 28, 2020,
Compl. ¶ 71, and later withdrawn and refiled on May 5, 2020, as a result of witness
unavailability and the national COVID-19 pandemic, id. ¶ 72, seeking “(1) an order maintaining
[A.D.’s placement at The Lab School] through the 2020–21 school year, [and] (2) reimbursement
for occupational therapy services at [The Lab School] during the 2019–20 school year,”
September 2020 HOD at 20. A hearing officer determination issued on September 8, 2020
denied this complaint in full, finding that the November 2019 IEP provided A.D. “an appropriate
program and placement.” Id. Although conceding that The Lab School “is an appropriate
placement” for A.D, id., plaintiffs’ requested relief of maintaining A.D.’s placement at The Lab
School through the 2020–21 school year and reimbursement for occupational therapy services at
The Lab School during the 2019–20 school year was denied, id.Plaintiffs appealed the September 2020 HOD to this Court in the instant lawsuit, Compl.
¶¶ 3, 79–96, alleging that DCPS failed to provide A.D. with the requisite FAPE and that this
most recent HOD “compounded [this] violation[]” by “ignor[ing] the parents’ compelling
evidence and witnesses, misapplied controlling law, and denied the requested relief,” id. ¶ 1.
B. Procedural History
Plaintiffs filed the pending motion for injunctive relief on December 16, 2020, seeking an
injunction, pursuant to A.D.’s stay-put rights, under 20 U.S.C. § 1415(j), requiring the District to
“fund,” Pls. Mot. at 1, and “maintain A.D. in her current educational placement at The Lab
School, retroactive to the start of the 2020-21 school year, including transportation and related
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services, and continuously thereafter until the completion of the pending appeal,” Pls.’ Mem. at
11–12. In accordance with the schedule proposed by the parties and adopted by the Court, this
motion became ripe for review on January 15, 2021.
II. LEGAL STANDARD
Section 1415(j) of the IDEA states that, except in certain circumstances inapplicable here,
“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.” 20 U.S.C. § 1415(j). This so-called “stay-put”
provision is among the “various procedural safeguards” established by the IDEA to “guarantee
parents both an opportunity for meaningful input into all decisions affecting their child’s
education and the right to seek review of any decisions they think inappropriate.” Honig v.
Doe, 484 U.S. 305, 311–12 (1988). The “unequivocal” language of this provision shows “that
Congress very much meant to strip schools of the unilateral authority they had traditionally
employed to exclude disabled students,” pending completion of the review proceedings. Id. at
323 (emphasis in original). Thus, the stay put provision “creates a powerful statutory
presumption in favor of maintaining the current classroom placement of a student with a
disability when the school seeks to change his placement over a parent’s objections,” such that
“[t]he local educational agency must overcome a heavy evidentiary burden to displace the
default rule that the child will stay put.” Olu-Cole v. E.L. Haynes Pub. Charter Sch., 930 F.3d
519, 522 (D.C. Cir. 2019).
The traditional four-part test for a preliminary injunction does not apply in evaluating
requests for injunctive relief under the stay-put provision, which “turns that traditional
framework on its head.” Id. at 527; see also Andersen by Andersen v. District of Columbia, 877
8
F.2d 1018, 1023–24 (D.C. Cir. 1989) (noting that “if the [stay-put] provision applies, injunctive
relief is available without the traditional showing of irreparable harm”). Instead, the stay-put
provision “effectively provides for an automatic statutory injunction upon a two-factor showing
that (i) an administrative due process proceeding is ‘pend[ing],’ and (ii) the local educational
agency is attempting to alter the student's ‘then-current educational placement.’” Olu-Cole, 930
F.3d at 527 (quoting 20 U.S.C. § 1415(j)). Upon meeting this two-part inquiry, the student is
presumptively entitled to a stay-put injunction in favor of the student's current placement, and
“the burden rests with the school district to demonstrate that the educational status quo must be
altered.” Id. (quoting Honig, 484 U.S. at 328 n. 10). As the D.C. Circuit has summed up the
operation of the stay-put provision, “[t]aking it down to brass tacks,” upon demonstration that the
two statutorily required factors are met, “[s]tay put lock[s] in [the student]’s educational status
quo, and the party that need[s] injunctive relief [is] the School seeking to derail the statute’s
ordinary operation.” Id. at 528.
III. DISCUSSION
The parties agree that the first prong of the two-factor test for application of the stay-put
presumption is met since plaintiffs’ appeal of the September 2020 HOD to this Court is pending.
See Pls.’ Mem. at 3; Def.’s Opp’n at 2, ECF No. 10. The parties dispute whether the second
factor is met. In particular, the District argues that The Lab School is not A.D.’s stay-put
placement, id. at 4, and further contends that maintaining A.D. at The Lab School would cause
harm to the District, due to the expenditure of tuition on A.D.’s behalf, and would circumvent the
IDEA appeal process, id. at 5. As the analysis that follows demonstrates, The Lab School
constitutes A.D.’s “then-current educational placement” for purposes of the stay-put injunction,
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and the District’s protestations of harm do not overcome the statutory requirement that A.D. is
entitled to the relief requested here.
A. Student’s Current Private School Placement Is The “Then-Current
Educational Placement” For Purposes of The Stay-Put Provision
The last educational placement for A.D. upon which plaintiffs and the District agreed is
set out in the August 2019 HOD, which agreed with plaintiffs that The Lab School, where A.D.
has now been enrolled for four years, see Pls.’ Mem. at 4, was an appropriate educational
placement, see August 2019 HOD at 18. Such an order amounts to an “agreement” for “stay-
put” purposes. See District of Columbia v. Vinyard, 901 F. Supp. 2d 77, 85–86 (D.D.C. 2012);
Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 372 (1985)
(confirming that an HOD constitutes an “agreement” as to an appropriate placement of a child);
see also Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83–87 (3d Cir. 1996); Sudbury Public
Sch. v. Mass. Dep’t of Elementary and Secondary Educ., 762 F. Supp. 2d 254, 268 (D. Mass.
2010). The August 2019 HOD finding that The Lab School “is proper and appropriate for” A.D.,
August 2019 HOD at 17–18, is only bolstered by the September 2020 HOD, which found that
A.D.’s “steady progress over the past four years at the Lab School indicates that it is an
appropriate placement for” the student, September 2020 HOD at 20. Consequently, according to
plaintiffs, The Lab School is the “then-current educational placement” for the purposes of
§ 1415(j). Pls.’ Mem. at 7–8. Plaintiffs are correct.
To satisfy the second factor in the two-part test for stay-put relief, a student must show
that the school system “is attempting to alter the student's ‘then-current educational placement,’”
Olu-Cole, 930 F.3d at 527 (quoting 20 U.S.C. § 1415(j)), by proposing a “fundamental change
in, or elimination of, a basic element of the educational program,” Lunceford v. District of
Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984). See also K.W. v. District of
10
Columbia, 385 F. Supp. 3d 29, 43 (D.D.C. 2019); Douglas v. District of Columbia, 4 F. Supp. 3d
1, 2–3 (D.D.C. 2013); Vinyard, 901 F. Supp. 2d at 83 (D.D.C. 2012). This factor is easily met
here.
The challenged November 2019 IEP and proposed placement at issue in the underlying
appeal in this case would result not only in a change of location in the provision of educational
services to A.D. from The Lab School to the public school Roosevelt High School, but also a
change in the educational services provided. In comparison to A.D.’s current educational
program, the challenged IEP would reduce by twelve hours per week A.D.’s specialized
instruction outside of general education, September 2020 HOD ¶ 14, and eliminate both her
individual and group psychological services, id. Meanwhile, A.D.’s existing February 2019 IEP,
which is being implemented by The Lab School, was in place for the duration of the last year and
at the time the instant motion was filed. As such, the February 2019 IEP was the “actually
functioning” IEP when the stay-put relief was invoked, a consideration deemed “dispositive” in
identifying the “then-current” placement. Vinyard, 901 F. Supp. 2d at 79 (“Typically, the
dispositive factor in deciding a child’s current educational placement should be the
individualized education program actually functioning when the stay-put is invoked.” (citation
omitted)).
For all of these reasons, The Lab School is A.D.’s “then-current educational placement.”
See N.W. v. District of Columbia, 253 F. Supp. 3d 5, 20–21 (D.D.C. 2017) (holding that “prior
administrative determination,” which ordered District to pay student’s tuition at private school
“thus represent[ed] an administrative determination that [private school] was appropriate” and
private school remains student’s “current educational placement” pending appeal of subsequent
administrative determination, such that District is obliged to pay for student’s attendance at
11
private school “through the resolution of this case”); Eley v. District of Columbia., 47 F. Supp.
3d 1, 17 (D.D.C. 2014) (holding that school attended by student during controversy over the
student’s most-recent IEP was student’s then-current educational placement); Vinyard, 901 F.
Supp. 2d at 79–80 (finding that “Lab School of Washington to be [student]’s current educational
placement for stay-put purposes” and therefore “directing the District to maintain and fund
[student]’s placement at the Lab School pending a judicial determination on the merits”); accord
District of Columbia v. Jeppsen, 468 F. Supp. 2d 107, 111–12 (D.D.C. 2006) (“requiring parents
to reimburse school districts for tuition and other expenses paid to private schools under the stay-
put provision is wholly inconsistent with the intent and spirit of the provision itself.”), reversed
in part and remanded on different grounds, 514 F.3d 1287, 1288 (D.C. Cir. 2008).
The District raises three arguments disputing the conclusion that The Lab School is
A.D.’s “then-current educational placement” under the stay-put provision, but none are
persuasive. First, the District points to the fact that the August 2019 HOD granted tuition
reimbursement only for the first half of the 2019–20 school year, rather than the entire school
year, and that this partial reimbursement is indicative of an interim placement, disqualifying
plaintiffs from obtaining stay-put relief at The Lab School. Def.’s Opp’n at 4–5 (noting DCPS
was required to “fund A.D.’s placement at Lab for the first semester of the 2019–2020 school
year only.”) (emphasis in original). The District reasons that, even if the last agreed-upon
placement for A.D. is The Lab School, by expressly denying to extend A.D.’s placement through
the second semester of the 2019–20 school year, the August 2019 HOD put plaintiffs “on notice
that A.D.’s placement at Lab was temporary and that A.D. could attend a different school if
DCPS provided an appropriate IEP and placement.” Id. at 5. This reasoning is unmoored from
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the actual explanation provided in the August 2019 HOD for the denial of reimbursement for the
full 2019–20 school year.
The August 2019 HOD explains that plaintiffs’ request for reimbursement for the entire
2019–20 school year “received virtually no attention during the due process hearing,” “there was
no discussion of placement and Student’s options with DCPS for 2019/20,” and “DCPS did not
suggest any placement or school for Student for 2019/20.” August 2019 HOD at 19. Since,
however, DCPS was ordered to prepare a new IEP promptly, the tuition reimbursement was
limited to “the first half of the school year to enable DCPS to attempt to provide a FAPE to
Student beginning in January 2020, if desired.” Id. at 20. Thus, the HOD’s limitation on tuition
reimbursement to only the first half of the 2019–20 school year was in anticipation of the
preparation of an IEP that ensured A.D. a FAPE for the remainder of the school year.
In compliance with the August 2019 HOD, DCPS prepared the November 2019 IEP and
proposed placement of A.D. at Roosevelt High School, but both are challenged as failing to
provide a FAPE. Revoking tuition reimbursement now during the pendency of this litigation,
would result in A.D.’s placement being transferred to DCPS’s current choice of Roosevelt High
School for implementation of the November 2019 IEP, even if the changes proposed in that last
IEP are ultimately found in this litigation to be inappropriate and inadequate, undermining the
very purpose of the stay-put provision to allow parents an opportunity to test the legality of a
disputed educational change and placement before implementation.
The District has unsuccessfully tried out before this same argument that “the underlying
determination from which [the student] appeal[ed]” limited prospective relief so “[the District]
should not be required to fund” the following school year. District of Columbia v. Oliver, 991 F.
Supp. 2d 209, 216 (D.D.C. 2013). That reading of the stay-put provision was rejected. Id.13
Citing DCPS’ failure to develop an appropriate IEP as required by the HOD, the Oliver Court
explained that the District could not “interpret the structure of the HOD’s order as limited to
placing the child at her private school only for the then-current school year and absolving the
[District] of any responsibility to provide a placement in future years.” Id. Similarly, in other
cases, where the HOD ordering the “then-current educational placement” did not provide full
tuition reimbursement, courts have not hesitated to grant stay-put relief. See, e.g., Wimbish v.
District of Columbia, 153 F. Supp. 3d 4, 12–13 (D.D.C. 2015) (granting plaintiffs’ stay put
injunctive relief and requiring District to “fund 100% of Plaintiffs’ cost of attendance at [private
school] until the conclusion of these proceedings,” even though HOD ordering placement at
private school required only 50% tuition reimbursement by District for earlier school year).
In asserting the position that The Lab School cannot be A.D.’s stay-put placement, the
District relies solely on Simmons v. District of Columbia, 355 F. Supp. 2d 12 (D.D.C. 2004), a
non-binding case that is also inapposite. The procedural posture of Simmons differs in several
material respects from the pending motion for a stay-put order. First, the child at issue in
Simmons had been parentally-placed at a private school but, unlike here, that private school
placement was never agreed-upon with the District. Id. at 14–15. Second, unlike here, the only
IEP available for the Simmons child was the challenged IEP since this was the “first and only
educational placement” for the child. Id. at 17. Indeed, even the Simmons court acknowledged
the significance of this distinction, noting the “contrast to other decisions in this district declining
to find that the ‘current educational placement’ is the school specified in the challenged IEP
where there is a pre-existing IEP.” Id. at 17. Finally, after the challenged HOD was issued
finding that the challenged IEP and public school placement were appropriate, the parents filed a
due process complaint but, unlike here, “did not invoke the ‘stay put’ provision.” Id. at 15.
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Instead, the parents asserted in their appeal of the HOD that offering a public school placement,
rather than allowing her to stay put in the private school, “denied her a [FAPE],” id.; id. at 16,
“in failing to fund her enrollment at [the private school] during the pendency of this action,” id.
at 17. On summary judgment, the court sustained the HOD and the appropriateness of the
challenged IEP and public school placement, id. at 19, findings that undergird the conclusion that
“there was no denial of FAPE through maintenance of that [IEP] placement …during the
pendency of this action,” id. at 17. Simmons simply does not help the District here.
Second, the District contends that The Lab School does not qualify as A.D.’s current
educational placement because “A.D. was placed at Lab by [p]laintiffs.” Def.’s Opp’n at 4.
Section 1415(j) provides no definition for the key term “then-current educational placement” or
“educational placement,” but states only that “during the pendency of any proceedings,” the
child may “remain in the then-current educational placement . . . ,” 20 U.S.C. 1415(j). Thus, the
plain text imposes no qualifier about who chose that placement and does not support the
District’s argument. The statutory provision expresses Congress’ “intention to preserve the
status quo by referring to the placement in which the child is actually receiving educational
services at the time the dispute first arises.” Oliver, 991 F. Supp. 2d at 214; see also Murphy v.
Bd. of Educ., 86 F. Supp. 2d 354, 359 (S.D.N.Y. 2000), aff’d, 297 F.3d 195 (2d Cir. 2002)
(finding “then current placement” to mean the last agreed upon placement when the due process
proceeding commenced). At the time this dispute arose, in January 2020, A.D. was “actually
receiving educational services” at The Lab School, per the agreement reflected in the August
2019 HOD.
Relatedly, the District urges denial of the requested stay-put order because plaintiffs’
initial placement of A.D. at The Lab School and subsequent rejection of the November 2019 IEP
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constitutes a “unilateral placement” for which plaintiffs must bear financial responsibility.
Def.’s Opp’n at 5–6. This argument ignores the impact of the August 2019 HOD. “While
parents who reject a proposed IEP bear the initial expenses of a unilateral placement, the school
district’s financial responsibility should begin where there is an administrative or judicial
decision vindicating the parents’ position.” Susquenita, 96 F.3d at 86–87. Here, A.D.’s parents
have borne the “initial expenses” already. Plaintiffs assumed the initial cost for The Lab School
in both the 2016–17 and the 2017–18 school years, and were later reimbursed by Creative Minds
for the 2016–17 school year, see A.D. v. Creative Minds Int’l Public Charter School, 2020 U.S.
Dist. LEXIS 184173 at *23–24, and by DCPS for the 2018–19 school year and prospectively for
the first half of the 2019–20 school year, see August 2019 HOD at 21. To date, therefore, A.D.’s
parents have assumed the costs of The Lab School for 2017–18 school year and from January
2020 to the present. 3 The finding in the August 2019 HOD that The Lab School was an
appropriate placement for A.D., however, constitutes an “agreement” on her placement and
converts The Lab School from a unilateral placement, for which A.D.’s parents bore the “initial
expenses,” to an agreed-upon placement, for purposes of the stay-put provision. Put plainly, the
August 2019 HOD is the “administrative . . . decision vindicating” plaintiffs’ position and is
where the District’s “financial responsibility should begin . . . .” Susequenita, 96 F.3d at 86. See
also Oliver, 991 F. Supp. 2d at 214, 216 (holding that a child “parentally-placed” in a private
school and later subject to an HOD ordering the District “to fund the child’s education at [the
3
Plaintiffs were denied reimbursement for the 2017–18 school year in the July 2018 HOD, see July 2018
HOD at 18, 19, 23, which decision was affirmed on appeal, see Report and Recommendation, A.D. v. Creative
Minds Int’l Public Charter School, Civil Action No. 18-2430 CRC/DAR, 2020 U.S. Dist. LEXIS 184957 at *71–73,
*75 (D.D.C. Aug. 14, 2020), because DCPS, not Creative Minds or the Office of the State Superintendent of
Education (“OSSE”), which plaintiffs named as respondents in the July 2018 HOD, was the LEA obligated to
provide A.D. with a FAPE during that school year, id.16
private school] for the remainder of the . . . school year,” established the child’s educational
placement as the school in which she was enrolled at the time).
Finally, contrary to the District’s position, see Def.’s Opp’n at 4–5, A.D.’s placement at a
private school does not disqualify her from the stay-put procedural safeguard. This statutory
protection can extend to students “not ‘enrolled in a public school.’” Oliver, 991 F. Supp. 2d at
215 (quoting Vinyard, 901 F. Supp. 2d at 82); see also id. at 216 (asserting that “[a] hearing
officer’s determination that a given placement is appropriate is sufficient to render that
placement a ‘current educational placement’ for the purposes of the stay-put provision” (citing
F.S. ex rel. Snyderman v. District of Columbia, No. 06-923, 2007 U.S. Dist. LEXIS 27520, at *4
(D.D.C. Apr. 13, 2007))). In Vinyard, for example, a student was found to be entitled to a stay-
put order requiring the District to maintain his placement at The Lab School pending appeal of
an HOD that directed the District to maintain and fund the student’s private placement. Vinyard,
901 F. Supp. 2d at 79. There, the HOD’s “unequivocal holding in favor” of the student’s
placement at The Lab School was found to “constitute an agreement as to [the student’s] current
educational placement for the limited purpose of stay-put relief,” id. at 86, and entitled the
student to such relief “funded by the District, immediately, and retroactive” to the beginning of
the school year, id. at 91.
Accordingly, A.D. is entitled to automatic stay-put protection at The Lab School pending
plaintiffs’ appeal challenging the September 2020 HOD and proposed placement, with tuition
reimbursement by DCPS during the pendency of this appeal.
B. District’s Objections Fail to Demonstrate That Stay-Put Status Quo Must Be
Altered
Upon satisfying the two-factor test triggering the automatic stay-put protection, “the
burden shift[s] to the School to meet the heavy burden of overcoming that presumption” and
17
“shoulder[ing] the difficult burden of justifying” an alteration in the status quo. Olu-Cole, 930
F.3d at 528. To meet this “heavy burden,” the District contends that maintaining A.D.’s current
placement at a private school would “cause harm to the District” and allow plaintiffs to
“circumvent the IDEA appeal Process,” Def.’s Opp’n at 5, by ordering the District “to fund
A.D.’s enrollment at [The Lab School] on a supposedly emergency basis,” id. at 7, rather than
“allow[ing] the appeal process to run its course and await a ruling from the Court on the merits
of [plaintiffs’] claim challenging the appropriateness of the IEP and placement,” id. These
justifications for denying stay-put relief only highlight a misapprehension of the applicable law
and amount to urging this Court simply to ignore the mandates of the stay-put provision.
Contrary to the District’s characterization, invoking statutory stay-put relief does not
“circumvent” the IDEA appellate process, but rather minimizes harm to the student while
litigation proceeds over the merits of the educational services proposed by the District. The
District posits that the stay-put injunction should be denied because if ordered “to fund A.D.’s
unilateral enrollment at Lab, Plaintiffs would be free to withdraw their complaint and DCPS
would be forced to fund Lab with no legal recourse,” Def.’s Opp’n at 7, since “the
appropriateness of the IEP and placement would not have been determined [and] yet Plaintiffs
would have received all the relief they seek, which is precisely the relief that the hearing officer
rejected,” id. Plainly, if plaintiffs were to withdraw their appeal, the stay-put protection
“pending appeal” would necessarily end. The fact that stay-put relief maintains the status quo
placement for a student, until the parties agree otherwise and/or the student withdraws a
challenge to the District’s proposal, is a facet of the operation of the statute and simply does not
amount to a justification for judicially altering the statutory mandate. Tuition at The Lab School
is indisputably expensive. Yet, the harm to the District from footing this tuition expense does
18
not justify denial of an otherwise requisite stay-put injunction, since the IDEA “expressly affords
such a remedy to the aggrieved student.” Vinyard, 901 F. Supp. 2d at 89 (quoting Ravenswood
City Sch. Dist. v. J.S., Case No. C 10-03950 SBA, 2010 U.S. Dist. LEXIS 126629, at *5 (N.D.
Cal. Nov. 18, 2010)). 4
The District has fallen far short of overcoming the applicable presumption for issuance of
a stay-put order.
IV. CONCLUSION
For the foregoing reasons, the plaintiffs’ Motion for Preliminary Injunction, ECF No. 8,
is granted. An appropriate Order accompanies this Memorandum Opinion.
Date: February 2, 2021 __________________________
BERYL A. HOWELL
Chief Judge
4
Moreover, the District’s express concern that plaintiffs are circumventing an appeals process for the August
2019 HOD through this stay-put injunction by seeking the same full 2019–20 school year reimbursement denied by
the August 2019 HOD is flatly incorrect. See Def.’s Opp’n at 5; see also August 2019 HOD at 21 (granting
plaintiffs reimbursement “for the first half of the 2019/20 school year and until a FAPE is offered by DCPS”).
Plaintiffs seek only an order that the District “maintain A.D. in her current educational placement at [The] Lab
School, retroactive to the start of the 2020–21 school year,” during the pendency of the appeal. Pls.’ Mem. at 11–
12; Pls.’ Reply at 5–6.
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