Disability Law Center of Alaska, Inc. v. Anchorage School District

Filing 23

Order on Motion for TRO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

DISABILITY LAW CENTER OF
ALASKA, INC.,

Case No. 3:07-cv-0131-RRB

Plaintiff,
vs.
ANCHORAGE SCHOOL DISTRICT,

ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Defendant.

I.

INTRODUCTION
Before the Court is Plaintiff Disability Law Center of

Alaska (“DLC”) with a Motion for Temporary Restraining Order and
Preliminary Injunction at Docket 4.

DLC seeks an order requiring

Defendant Anchorage School District (“ASD”) to release names and
contact information for the parents and guardians of special needs
students at Lake Otis Elementary School.

ASD opposes at Docket 17

on the grounds that the information is protected and not subject to
disclosure under the Family Educational Rights and Privacy Act

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(“FERPA”),1 and the Individuals with Disabilities Education Act
(“IDEA”).2

The Court heard oral argument on DLC’s Motion for

Consideration on Shortened Time on July 31, 2007.
The Court has reviewed DLC’s Motion at Docket 4 and
Notice of Supplemental Authority at Docket 15, ASD’s Opposition at
Docket 17, and DLC’s Reply at Docket 18.

The Court has also

reviewed ASD’s Motion for Leave to File Supplemental Opposition at
Docket 20.

Because the Court finds the original briefing adequate

to resolve this matter, Defendant’s Motion at Docket 20 is denied.
For the reasons set forth herein, DLC’s Motion for
Temporary Restraining Order and Preliminary Injunction at Docket 4
is denied.
II.

BACKGROUND
This matter arises from a dispute between DLC and ASD

over access to contact information for the parents and guardians of
children attending special needs classrooms at Lake Otis Elementary
School during the 2006-07 academic year.
DLC is the designated protection and advocacy (“P&A”)
agency for the State of Alaska pursuant to the Developmental

1

20 U.S.C. § 1232g.

2

20 U.S.C. §§ 1400-87.

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Disabilities Assistance and Bill of Rights Act (“DD Act”),3 the
Protection

and

Advocacy

for

Mentally

Ill

Individuals

Act

(“PAMII”),4 and the Protection and Advocacy for Individual Rights
Act (“PAIR”)5 (collectively “P&A Acts”).

As the P&A agency for

Alaska, DLC is authorized to “investigate incidents of abuse or
neglect of individuals with developmental disabilities if the
incidents are reported to the system or if there is probable cause
to believe that the incidents occurred.”6
ASD

is

the

local

school

district

responsible

for

providing educational services, including special education, to
Anchorage students. Lake Otis Elementary School, a school overseen
by ASD, has two self-contained special education classrooms which
serve children who require a low teacher-student ratio in a special
education setting.

Each classroom also has a minimum of two adult

teaching assistants and fewer than 10 children.7

M.M. was one of

the special education teachers during the 2006-07 school year.8
3

42 U.S.C. § 15041, et seq.

4

42 U.S.C. § 10801, et seq.

5

29 U.S.C. § 794e, et seq.

6

42 U.S.C. §§ 15041(a)(2)(B); 15043(a)(2)(A)(i).

7

Docket 17-2 at 2.

8

In order to protect the privacy of the students and ASD
staff involved, the Court will follow the practice of referring to
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M.M. resigned at the end of the 2006-07 school year and none of the
teaching assistants who served in his classroom will be returning
to for the 2007-08 school year.9
Plaintiff contends that since May of 2007, DLC has
received a total of six separate and corroborating complaints of
abuse and/or neglect in the other special needs classroom involving
M.M. and his teaching assistant, C.B.

On May 25, DLC received two

separate

and/or

complaints

classroom.10
June 25.11

alleging

abuse

neglect

in

M.M.’s

DLC received two further corroborating complaints on
On or about June 26, DLC received a complaint from a

parent/guardian of a student in the classroom that corroborated the
four previous complaints and provided additional information about
specific

incidents

as

well

as

general

complaints

about

the

classroom, teacher and staff.12
On June 29, 2007, DLC initiated an investigation and
requested the following records from ASD: (a) Directory information
(names and contact information for the parents/guardians of the

ASD staff using only initials.
9

Docket 17 at 5.

10

Docket 5-3.

11

Docket 5-2.

12

Id., ¶ 6.

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students

in

the

class;13

(b)

Names

of

staff

working

in

the

classroom, including related service providers; (c) Information
regarding

any

and

all

complaints

teachers/staff

people

under

investigation

conducted

by

regarding

investigation;
ASD

connected

the

classroom

(d)

Any

with

the

an

internal

complaints

received.14 On July 6, 2007, after initiating an investigation, DLC
received a sixth complaint.15
As a result of DLC’s June 29 records request, ASD learned
of an incident that had been reported to the Principal at Lake Otis
Elementary and the ASD Superintendent involving one child in M.M.’s
classroom.

ASD also learned of a series of other allegations

involving personnel in both of the special needs classrooms.16
ASD initially refused to provide any records to DLC until
DLC provided additional information regarding the complaints.17 DLC
informed ASD that based on the complaints and results of the
13

Because the phrase “directory information” has a specific
legal meaning under federal educational privacy laws which both
parties agree does not characterize the parent/guardian contact
information sought by DLC, the Court will refer to the requested
information as parent/guardian contact information. See 20 U.S.C.
§ 1232(a)(5)(A); Docket 17 at 15-17, Docket 18 at 3.
14

Docket 5 at 2-3.

15

Docket 5-2, ¶ 9.

16

Docket 17 at 6-7.

17

Docket 5-6.

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initial investigation, it had probable cause to believe that
neglect or abuse had occurred.

However, DLC did not provide ASD

with any details regarding the complaints or the time frame during
which the alleged events occurred and has been reluctant throughout
to disclose the specifics of its concern to ASD.18
Through an exchange of letters, ASD provided some of the
information DLC had requested, but maintained its refusal to
provide DLC with parent/guardian contact information on the grounds
that it constituted personally identifiable information not subject
to disclosure under federal law.19 DLC maintains that it needs this
information so that it can contact the parents to inform them of
the allegations DLC has received and to obtain permission to review
the records of other children as part of its investigation.20
Interestingly, although DLC wishes to inform parents/guardians of
its concerns, it is unwilling to make these disclosures to ASD.
On several occasions, ASD requested DLC’s cooperation in
developing access agreements and investigation protocols.21 At oral

18

Docket 5-7.

19

Docket 5-8.

20

Docket 5 at 3-4.

21

See Docket 5-6; Docket 7-7; Docket 11-4 at 2; Docket 177; Docket 17-8.
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argument,

ASD

explained

that

it

is

concerned

about

adequate

protection from potential liability for unlawful disclosure of
confidential information if it were to comply with DLC’s request.
DLC, however, has declined to negotiate access agreements or
protocols for investigations as a matter of policy.22
DLC filed a Complaint in federal court on July 16, 2007,
seeking injunctive relief to obtain contact information for the
parents/guardians of special needs students at Lake Otis Elementary
School.

One week later, on July 23, 2007, DLC filed a Motion for

Temporary Injunction and Preliminary Injunction.23 Affidavits from
DLC staff filed with DLC’s motion indicate that the complaints
received involve “general problems with classroom conditions and
the treatment of students” and an allegation that a “child was
subject to abuse/neglect while a student in the classroom.”24

DLC

requested that its motion be heard on shortened time so that
“parents of the children in the classroom where the alleged abuse
and/or neglect [occurred] may be notified.”25

The Court heard oral

argument on DLC’s motion on July 31, 2007.

22

Docket 17 at 8.

23

Docket 4.

24

Docket 5-2 at 2; Docket 5-3; Docket 5-4.

25

Docket 7 at 2, ¶ 9.

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III. STANDARD OF REVIEW
The Court initially notes the parties’ disagreement
regarding the applicable standard of review.

DLC seeks an order

requiring ASD to disclose the names and contact information for the
parents/guardians of special needs students at Lake Otis Elementary
School.

DLC titles its request “Motion for Preliminary Injunction

and Temporary Restraining Order.”26
ASD, however, posits that DLC’s motion seeks a permanent,
rather than preliminary injunction because once the information is
released

it

cannot

be

recovered.27

The

Court

agrees.

This

distinction is significant because in order to obtain a permanent
injunction, DLC must demonstrate “actual success” rather than only
a “likelihood of success” on the merits.28
A preliminary injunction is a provisional remedy designed
to preserve the status quo until the court can resolve the case on

26

See Docket 4.

27

Docket 17 at 9.

28

See Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.
1988) (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,
546 n.12 (1987)) (“The standard for a preliminary injunction is
essentially the same as for a permanent injunction except
likelihood of success on the merits rather than actual success must
be shown.”); see generally Warsoldier v. Woodford, 418 F.3d 989,
993-94 (9th Cir. 2005) (standard for preliminary injunction).
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the merits.29
injunctive

Logically, this is why a party seeking preliminary

relief

needs

only

to

demonstrate

a

success, rather than actual success on the merits.

likelihood

of

Here, however,

DLC does not seek a provisional remedy pending resolution of the
matter.

Indeed, whether DLC is entitled to the parent/guardian

contact information is the “merits of the case.”30 Therefore, DLC’s
motion is properly characterized as a motion for a permanent
injunction.
Under

“well-established

principles

of

equity,”

a

plaintiff seeking a permanent injunction must show that (1) it has
suffered irreparable injury; (2) the available legal remedies are
inadequate to compensate for that injury; (3) the balance of
hardships between the plaintiff and defendant warrants an equitable
remedy; and (4) the public interest would not be disserved by a
permanent injunction.31

“The decision to grant or deny permanent

29

Dep’t of Parks & Recreation v. Bazaar Del Mundo, Inc.,
448 F.3d 1118, 1124 (9th Cir. 2006).
30

See Docket 1 at 5.

31

eBay Inc. v. MercExchange, L.L.C., __ U.S. __, 126 S. Ct.
1837, 1839 (2006) (citing Weinburger v. Romero-Barcelo, 456 U.S.
305, 311-13 (1982); Amoco, 480 U.S. at 542).
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injunctive relief is an act of equitable discretion by the district
court, reviewable on appeal for abuse of discretion.”32
ASD also asserts that DLC’s motion seeks a mandatory,
rather than prohibitory injunction.33
prohibitory

injunction

preserves

Again, the Court agrees.
the

status

quo”

whereas

“A
a

mandatory injunction orders affirmative conduct that “goes well
beyond simply maintaining the status quo.”34
DLC argues that since the law already requires disclosure
of ASD’s parent/guardian contact information, DLC merely seeks to
preserve the status quo.
is trying to prove.

However, DLC’s argument assumes what it

Whether the law requires disclosure of the

directory is what DLC must demonstrate in order to establish
success

on

the

merits.

Moreover,

even

if

the

law

requires

disclosure of the directory, ASD has not yet disclosed it.35

An

order granting DLC’s requested relief would necessarily order

32

Id.

33

See Docket 17 at 9-10 (citing Meghrig v. KFC Western,
Inc., 516 U.S. 479, 484-85 (1996)).
34

Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir.
1994) (citing, inter al., Anderson v. United States, 612 F.2d 1112,
1114 (9th Cir. 1979)) (omitting quotation marks).
35

Docket 5 at 13.

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affirmative conduct from ASD, which is the essence of a mandatory
injunction.36
The Court concludes that DLC’s motion seeks a mandatory
permanent injunction.

Accordingly, the Court reviews DLC’s motion

for actual success on the merits and heeds the caution that motions
for mandatory injunctions are “particularly disfavored,”37 “subject
to heightened scrutiny”,38 and “should not be issued unless the
facts and law clearly favor the moving party.”39
IV.

DISCUSSION
A.

DLC’s Asserted Access Authority
As the P&A system for the State of Alaska, DLC is

authorized

to

“investigate

incidents

of

abuse

or

neglect

of

individuals with developmental disabilities if the incidents are
reported to the system or if there is probable cause to believe

36

Cf. Wash. Prot. & Advocacy Sys., Inc. v. Evergreen Sch.
Dist., CV03-5062 (W.D. Wash. April 11, 2003) (available at Docket
17, Ex. 10) (declaring motion for release of contact information
for parents and/or guardians of all students with disabilities
mandatory rather than prohibitory), aff’d, 71 Fed. Appx. 654 (9th
Cir. 2003).
37

Stanley, 13 F.3d at 1320 (citing, inter al., Anderson,
612 F.2d at 1114) (omitting quotation marks).
38

Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403 (9th Cir.
1993) (citing Anderson, 612 F.2d at 1114).
39

Id.

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that

the

incidents

occurred.”40

The

DD

Act’s

implementing

regulations define “probable cause” as “a reasonable ground for
belief that an individual with developmental disabilities has been,
or may be, subject to abuse or neglect.”41 Although none of the P&A
Acts explicitly require ASD to give DLC a list of students and
contact information for their parents or guardians, several courts,
including the Second and Seventh Circuits, have ruled that a P&A
agency is entitled to the names and contact information for the
parents and/or guardians of children with disabilities.42
DLC asserts that it has probable cause for its belief
that ASD staff in the special needs classrooms at Lake Otis
Elementary have engaged in actions which potentially constitute
abuse or neglect toward students with disabilities.43 DLC based its
determination on complaints received and information gathered
through its investigation.44
regarding

“classroom

According DLC, general complaints

conditions”

are

40

to

establish

42 U.S.C. § 15041(a)(2)(B).

41

sufficient

45 C.F.R. § 1386.19.

42

See Conn. Office of Prot. & Advocacy for Persons with
Disabilities v. Hartford Bd. of Educ., 464 F.3d 229 (2nd Cir.
2006); Disability Rights Wisc., Inc. v. Wisc. Dep’t of Pub.
Instruction, 463 F.3d 719 (7th Cir. 2006).
43

Docket 5 at 3-6.

44

Id.

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probable cause as to all students in the special needs classrooms.45
At oral argument DLC clarified that the complaints involved one
special needs teacher, one teacher aide, and one child.
Significantly, the teacher at issue resigned at the end
of the 2006-07 school year and none of his teaching assistants will
be returning for the 2007-08 school year.46

Nevertheless, DLC

asserts that it has probable cause to obtain the parent/guardian
contact information for all special needs children in order to
contact parents for permission to review records of other children
during its investigation. ASD has provided much of the information
that DLC has requested, but refuses to provide names and contact
information of the parents/guardians of the special needs children
on the grounds that DLC has not demonstrated probable cause and
that FERPA and IDEA prohibit ASD from disclosing the information.
The parties do not dispute that the DD Act authorizes DLC
to make the initial probable cause determination. However, ASD may
seek judicial review of the sufficiency of DLC’s probable cause
determination.47

DLC has made no showing that other children have

45

Id. at 7.

46

Docket 17 at 5; Docket 17-2 at 2.

47

See Iowa Prot. & Advocacy Servs., Inc. v. Gerard
Treatment Programs, L.L.C., 152 F. Supp. 2d 1150, 1172 n.1 (N.D.
Iowa 2001) (citing Ariz. Ctr. for Disability Law v. Allen, 197
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been or continue to be subject to abuse or neglect.

Complaints

regarding a former teacher’s classroom during the previous school
year are insufficient to establish probable cause to investigate
the entire specials needs program in a subsequent year absent some
showing of systemic neglect.

DLC has not made any such showing.

DLC asserts that even without probable cause, it is
entitled to parent/guardian contact information.48

DLC cites 45

C.F.R. § 1386.22(i) which provides that if a P&A agency is denied
access to “records covered by the Act it shall be provided promptly
with a written statement of reasons, including, in the case of a
denial for alleged lack of authorization, the name and address of
the legal guardian, conservator, or other legal representative of
an individual with developmental disabilities.”49

DLC argues that

under this regulation, “all a P&A must do to receive a list of
guardians is to ask for it.”50

However, as to the information at

issue in the present case, DLC’s reliance on this regulation is
tenuous and would produce illogical results, particularly in light

F.R.D. 689, 693 (D. Az. 2000); Pa. Prot. & Advocacy, Inc. v. RoyerGreaves Sch. for Blind, 1999 WL 179797 at *8 & n.11 (E.D. Pa.
1999)).
48

Docket 5 at 11.

49

Id. (citing 45 C.F.R. § 1386.22(i)).

50

Id. (citing Royer-Greaves, 1999 WL 179797 at *6-*8).

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of ASD’s asserted confidentiality obligations under FERPA and IDEA,
discussed below.
that

DLC’s authority does not support the conclusion

parent/guardian

contact

information

constitutes

“records

covered by” the DD Act.
B.

ASD’s FERPA/IDEA Obligations
ASD maintains that FERPA and IDEA prohibit educational

agencies from disclosing an individual’s “educational records” or
“personally identifiable information contained therein other than
directory

information,”

without

the

individual’s parents or guardians.51

written

consent

of

that

Both parties agree that the

parent/guardian contact information sought by DLC does not fit
within the “directory information” exemption of these statutes.52
It appears that no federal court of appeals has addressed
the interrelationship between FERPA/IDEA and the P&A Acts in the
context of access to parent/guardian contact information as sought
by DLC.

The Seventh Circuit has addressed the issue of access to

the unredacted names of students in an investigative file, but did

51

See 20 U.S.C. § 1232g(b)(1) (FERPA); 34
(FERPA); 20 U.S.C. §§ 1412(a)(8), 1417(c) (IDEA);
300.611-.627 (IDEA).
52

See Docket 17 at 15-17; Docket 18 at 3.

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C.F.R. 99
34 C.F.R.

not discuss access contact information for parents/guardians.53 The
Second Circuit has acknowledged the issue of access to students’
parent/guardian contact information, but declined to address it
because the school district abandoned its argument on appeal after
the Department of Education and the Department of Health and Human
Services

(“DOE/DHHS”)

jointly

filed

an

Brief”) taking a position on the issue.54

amicus

brief

(“Amicus

DLC submits the DOE/DHHS

Amicus Brief as supplemental authority in the present matter.55
Additionally, the parties respectively rely on the decisions of two
separate federal district courts.56
DLC relies on a decision of the District of Connecticut
for

its

argument

that

the

P&A

Acts

require

access

to

53

Disability Rights Wisc., Inc. v. Wisc. Dep’t of Pub.
Instruction, 463 F.3d 719, 724 (7th Cir. 2006).
54

See Conn. Office of Prot. & Advocacy for Persons with
Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 233, 237-38
(2nd Cir. 2006).
55

See Br. for Dep’t of Educ. & Dep’t of Health & Human
Servs. as Amici Curae Supp. Pl.-Appellees, Conn. Office of Prot. &
Advocacy for Persons with Disability v. Hartford Bd. of Educ., No.
05-1240-CV (2nd Cir. June 2, 2006) (available at Docket 15-2).
56

See Conn. Office of Prot. & Advocacy for Persons with
Disabilities v. Hartford Bd. of Educ., 355 F. Supp. 2d 649 (D.
Conn. 2005); Wash. Prot. & Advocacy Sys., Inc. v. Evergreen Sch.
Dist., CV03-5062 (W.D. Wash. April 11, 2003) (available at Docket
17, Ex. 10), aff’d, 71 Fed. Appx. 654 (9th Cir. 2003).
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parent/guardian contact information notwithstanding FERPA/IDEA.57
In Hartford, the district court granted injunctive relief in favor
of the Connecticut Office of Protection and Advocacy (“OPA”) to
obtain a directory of students containing parent/guardian contact
information

from

the

defendants

Hartford

Board

of

Education,

Hartford Public Schools, and Hartford Superintendent of Schools
(collectively

“Hartford

defendants”).58

The

district

court

concluded that allowing OPA to access names and contact information
served the purposes of the P&A Acts by allowing OPA to pursue an
investigation

while

limiting

its

access

to

records

until

it

received authorization from students and parents, as the court
deemed required by FERPA and IDEA.59

Thus, the district court

concluded that it was able to harmonize the various statutes.60
On appeal to the Second Circuit, the Hartford defendants
initially argued that FERPA and IDEA prohibited them from providing
OPA

with

the

information.61

list

of

students’

parent/guardian

contact

However, the Hartford defendants abandoned this

57

Hartford, 355 F. Supp. 2d at 664.

58

Id.

59

Id.

60

Id.

61

464 F.3d 229, 235-36 (2nd Cir. 2006).

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argument at oral argument and agreed to defer to the position taken
by DOE/DHHS in its Amicus Brief that the P&A Acts override FERPA’s
non-disclosure requirements.62

Because the Hartford defendants

abandoned their FERPA argument, the Second Circuit expressly did
not address it.63

Notably, DOE/DHHS advanced the position that

“FERPA does not bar a P&A from obtaining access to the name of and
contact

information

for

a

parent,

guardian,

or

other

legal

representative of a minor student with a disability” when “the
P&A’s probable cause determination satisfies the requirements for
access to records under the . . . DD Act.”64

DOE/DHHS further

asserted that where the statutes are in conflict, the DD Act is
“properly understood as a limited override of FERPA’s generally
applicable non-disclosure requirements.”65
This

Court

declines

to

adopt

the

reasoning

of

the

DOE/DHHS Amicus Brief because it reaches conclusions that are
inconsistent with case law within the Ninth Circuit which this

62

Id. at 236.

63

Id. at 237-38. The court nevertheless accorded “some
deference [to the DOE/DHHS Amicus Brief] on account of the
‘specialized experience’ and information available to the agency.”
Id. at 239.
64

Docket 15-2 at 16.

65

Id.

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Court finds persuasive, namely the decision of the Western District
of Washington in Washington Protection and Advocacy System, Inc. v.
Evergreen School District which the Ninth Circuit affirmed.66
In Evergreen, the Washington Protection and Advocacy
System (“WPAS”) sought a preliminary injunction to obtain the names
of all students with disabilities participating in the Evergreen
School District’s Work Experience Program and contact information
for their parents and/or guardians, which the school district had
refused to release.67

The court denied the motion because the

allegations were not sufficient to establish probable cause that
the child in question had suffered abuse or neglect68 and because
it was “not sufficiently satisfied that the P&A Acts override the
FERPA and IDEA.”69

The court held that WPAS failed to show that

FERPA/IDEA and the P&A Acts could be “‘harmonized’” because “the
type of information sought cannot properly be characterized as
‘directory information.’”70

The court explained that “[d]irectory

information . . . clearly does not include contact information for
66

Case No. C03-5062 (W.D. Wash. April 11, 2003) (available
at Docket 17, Ex. 10), aff’d 71 Fed. Appx. 654 (9th Cir. 2003).
67

Id. at 1.

68

Id. at 5.

69

Id. at 4.

70

Id. (citing 20 U.S.C. § 1232g(a)(5)(A)).

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parents/guardians or information sufficient to establish which
students are participating in [Evergreen School District’s Work
Employment Program].”71
the

Ninth

Circuit

decision.72

On limited review for abuse of discretion,

unanimously

affirmed

the

district

court’s

The court acknowledged that its review was “much more

limited than review of an order involving a permanent injunction,
where all conclusions of law are freely reviewable.”73

Based on

that standard, the court concluded: “We cannot say that the
district court abused its discretion here.”74
ASD, like the school district in Evergreen, argues that
the information sought by DLC pertaining to parents and guardians
of the students is not “directory information” (which can be
disclosed

under

FERPA)

but

rather

“personally

identifiable

information” which is protected by FERPA and IDEA.75

ASD points to

the plain language of applicable regulations which classifies
information about parents or guardians, including their identities,

71

Id. (citing 20 U.S.C. § 1232g(a)(5)(A)).

72

See Wash. Prot. v. Evergreen Sch. Dist., 71 Fed. Appx.
654 (9th Cir. 2003).
73

Id. at *654 (citing Walzac v. EPL Prolong, Inc., 198 F.3d
725, 730 (9th Cir. 1999)).
74

Id. at *655.

75

Docket 17 at 13-17.

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as “personally identifiable information” which cannot be disclosed
without written consent of the parents or guardians.

Under FERPA,

“directory information” includes “the student’s name, address,
telephone listing, date and place of birth, major field of study,
participation in officially recognized activities and sports,
weight

and

height

of

members

of

athletic

teams,

dates

of

attendance, degrees and awards received, and the most recent
previous

educational

agency

or

institution

attended

by

the

student.”76

Noticeably absent from the definition of directory

information

is

any

reference

to

the

identities

or

contact

information of the parents and/or guardians of the children.
In contrast, FERPA explicitly protects parent/guardian
contact information from disclosure as “personally identifiable
information” which includes, but is not limited to: (a) The
student’s name; (b) The name of the student’s parent or other
family member; (c) The address of the student or student’s family;
(d) A personal identifier, such as the student’s social security
number or student number; (e) A list of personal characteristics
that would make the student’s identity easily traceable; or (f)
Other information that would make the student’s identity easily

76

20 U.S.C. § 1232g(a)(5)(A).

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traceable.77

The

information

requested

by

DLC

is

personally

identifiable information because it would likely contain the names
of the children’s parents and/or family members, addresses for the
children’s families, and personal characteristics of the child such
as the children’s placement in a special needs classroom.
Like the Western District of Washington in Evergreen,
this Court is likewise unpersuaded by DLC’s argument that the P&A
Acts override FERPA/IDEA in this instance.

Although the Ninth

Circuit’s

district

memorandum

order

affirming

the

court

in

Evergreen does not contain explicit discussion of the district
court’s legal conclusions, the review for abuse of discretion
included a determination that the district court relied on correct
legal standards.78 Based on this limited scope of review, the Ninth
Circuit found no abuse of discretion and therefore impliedly held
that the district court’s legal conclusions were not erroneous.79
This Court cannot surmise how the Ninth Circuit would have ruled if
it had “freely review[ed]”80 the district court’s conclusions of law

77

34 C.F.R. § 99.3.

78

71 Fed. Appx. at *654.

79

Id. at *655.

80

See id. at *654 (citing Walzac v. EPL Prolong, Inc., 198
F.3d 725, 730 (9th Cir. 1999)).
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in Evergreen, or how it might rule now in light of recent decisions
of the Second Circuit,81 Seventh Circuit,82 and positions taken by
DOE/DHHS in their Amicus Brief to the Second Circuit.83

The Court

declines to follow decisions of the Second and Seventh Circuits and
accordingly

holds

that

the

P&A

Acts

do

not

override

ASD’s

FERPA/IDEA privacy obligations under the facts and circumstances of
this case.
C.

Irreparable Injury and Inadequacy of Remedy at Law
DLC argues that it will suffer irreparable harm without

the Court’s intervention because it will not be able to carry out
its mandate to investigate allegations of abuse and neglect and to
protect individuals with disabilities.

However, there is no

indication of continuing potential for abuse or neglect since the
teacher and teaching assistant provoking the complaints are no
longer employed at the school.

Moreover, any harm suffered by DLC

in the absence of injunctive relief is neither irreparable, nor

81

Conn. Office of Prot. & Advocacy for Persons with
Disabilities v. Hartford Bd. of Educ., 464 F.3d 229 (2nd Cir.
2006).
82

Disability Rights Wisc., Inc. v. Wisc. Dep’t of Pub.
Instruction, 463 F.3d 719 (7th Cir. 2006).
83

See Docket 15-2.

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without adequate remedy at law. DLC can continue to investigate by
making a proper legal inquiry.
D.

Balance of Hardships:
DLC argues that the balance of hardships tips in its

favor

because

producing

the

information

would

not

require

a

significant investment of time or resources from ASD and because
DLC is required to protect the privacy and confidentiality of
student information once it is provided to DLC.

DLC alleges it

would suffer significant hardship without the information because
it would be unable to complete a full investigation.

However,

after considering the facts and the state of the law relating to
this matter, the Court is unable to conclude that the balance of
hardships between the parties warrants an equitable remedy in favor
of

DLC,

particularly

in

light

of

ASD’s

frequently-expressed

willingness to cooperate through the formation of access agreements
and protocols.
E.

Public Interest:
DLC has not shown that the public interest would not be

disserved by its requested injunction. Given that ASD and DLC have
similar interests, it would appear that the public interest would
be better served through cooperation between the parties.

It is

time they work together to achieve their mutually held goal of

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ensuring that children with disabilities are able to obtain a
quality education in a safe environment.
V.

CONCLUSION
DLC has neither demonstrated sufficient probable cause,

nor that the facts and law clearly favor its request. Accordingly,
DLC’s

Motion

for

Temporary

Injunction is DENIED.

Restraining

Order

and

Preliminary

Because this order resolves the merits of

the case, DLC’s Complaint is hereby dismissed with prejudice.
IT IS SO ORDERED.
ENTERED this 26th day of September, 2007.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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