Anchorage School District v. M.G. et al

Filing 158

ORDER: on Motion to Stay Put 127 (see order for full details). Signed by Judge Sharon L. Gleason on 02/23/2018. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ANCHORAGE SCHOOL DISTRICT,
Appellant,
v.
Case No. 3:17-cv-00157-SLG
M.G., and his parents Betsy and Brian G.,
Appellees.
ORDER ON MOTION TO STAY PUT
Before the Court at Docket 127 is Appellees’ motion for a stay put order. The
motion has been exhaustively briefed. Appellees seek an order that would establish that
while this judicial proceeding remains pending, and unless the parties agree otherwise,
M.G. is to remain in his current educational placement, which is the Perkins School for
the Blind. Being fully advised, the Court GRANTS Appellees’ motion. 1
In May 2016, the parties worked cooperatively to develop an updated IEP for M.G.
At that time, the parties agreed that “[t]he nature and severity of [M.G.’s] disability justifies
residential placement as the least restrictive environment.

The location will be

administratively determined.” 2 The parties then disagreed on the appropriate residential
placement. A due process hearing ensued, which resulted in the Hearing Officer finding

1

The Court also GRANTS ASD’s motion on shortened time for leave to file the second affidavit
of Jennifer White at Docket 140, and has reviewed and considered all of the extensive recent
filings of each party.
2

A.R. 197.

that the Perkins School for the Blind was the appropriate residential placement for M.G. 3
M.G. has been attending the Perkins School since May 1, 2017. The current motion
arises because the Hearing Officer’s decision ordered ASD to pay for M.G.’s attendance
at Perkins from May 1, 2017 through February 17, 2018. 4 The Hearing Officer recognized
that there “is no magic number” for how long M.G. “would need to attend Perkins to
achieve the skills he would need to transition to living as a blind person.” The decision
did not provide for a placement for M.G. after February 17, 2018. Rather, the Hearing
Officer stated “[i]t is my hope that the parents, Perkins staff and ASD staff and their
consultants can and will before February 17, 2018 collaborate on the evaluation of student
to determine if he is ready to return to ASD or would benefit from increased time at
Perkins.” 5
The Hearing Officer’s decision is now on appeal by ASD to this Court. Oral
argument on the appeal was held on January 31, 2018. 6 It appears that the parties are
making some progress in completing the evaluations and updating the IEP, but have not
agreed on M.G.’s placement at this time. On February 19, 2018, ASD served a prior
written notice (PWN) on Parents that indicated its intent to place M.G. in ASD’s ACE/ACT
program for interim diagnostic placement to commence on February 26, 2018. 7 ASD

3

Docket 1-2 (Hearing Officer Decision) at 14.

4

Docket 1-2 at 15.

5

Docket 1-2 at 15–16.

6

Docket 130 (Oral Argument Minute Entry).

7

Docket 148 (Notice Service of PWN).

Case No. 3:17-cv-00157-SLG, Anchorage School District v. M.G. et al.
Order on Motion to Stay Put
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indicated it “has administratively rejected paying tuition at Perkins after February 18, 2018
. . . because the District does not believe Perkins is providing a FAPE based on
evaluations and observations as well as on Perkins’ data narratives from May 1, 2017 to
the present. 8 By this motion, Parents seek to have M.G. remain at Perkins at this time.
The “stay put” provision of the IDEA, 20 U.S.C. § 1415(j) requires a student to
remain in his “current educational placement” during the course of administrative and
judicial proceedings. Section 1415(j) provides:
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.
In L.M. v. Capistrano Unified School District, 556 F.3d 900, 902–03 (9th Cir. 2009),
the Ninth Circuit discussed this statute as follows:
The IDEA does not define the phrase “current educational placement.” Courts
have generally interpreted the phrase to mean the placement set forth in the
child's last implemented IEP. Johnson v. Special Educ. Hearing Office, 287
F.3d 1176, 1180 (9th Cir.2002) (“typically the placement described in the
child's most recently implemented IEP”); Thomas v. Cincinnati Bd. of Educ.,
918 F.2d 618, 625 (6th Cir.1990) (“[the placement at the time of] the previously
implemented IEP”); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 (3d
Cir.1996) (“the dispositive factor in deciding a child's ‘current educational
placement’ should be the [IEP] . . . actually functioning when the ‘stay put’ is
invoked.”).
Here, M.G.’s most recently implemented IEP calls for a residential placement. 9

8

Docket 148 at 2.

9

The Court acknowledges ASD’s stated concern that the May 2016 IEP was never finalized and
therefore should not form the basis of a stay put order. However, the parties did all agree at that
time that a residential placement for M.G was appropriate. The dispute was then focused primarily
on which residential placement would be appropriate, although in the course of the due process

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Order on Motion to Stay Put
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ASD maintains, however, that the Hearing Officer “established a multi-phase
educational program that transitioned M.G. home to ASD after February 18, 2018.”10
Although the Hearing Officer clearly contemplated the likelihood that M.G. would be
transitioned back to Anchorage at some point after February 18, 2018, the Court does
not read the Hearing Officer’s decision to establish a multi-stage IEP in which M.G.’s
placement at Perkins definitively ended on February 18. 11
In the Court’s view, the determination of this motion is controlled by the Ninth
Circuit’s decision in Clovis Unified School District v. California Office of Administrative
Hearings, 903 F.2d 635, 639 (9th Cir. 1990). In that case, an administrative hearing
officer ruled in favor of the student, and ordered “the District to pay for her
hospitalization from August 16, 1985, through the 1985–86 school year.” The case
was then appealed to the district court. A principal issue on appeal was described
as “whether the ‘stay put’ provisions required [the school district] to maintain the child
[at the hospital] throughout the course of the court review proceedings which followed
the agency decision that [the hospital] was the appropriate placement.”12 In short,
the issue was whether the school district was required to pay for the placement after
the end of the 1986 school year, the ending date specified in the hearing officer’s

proceedings, ASD also advocated that M.G. might no longer need a residential placement. See
Docket 1-2 at 10.
10

Docket 129 (Opp. to Mot. to Stay Put) at 1.

11

Cf. N.E. by and through C.E. and P.E. v. Seattle Sch. Dist., 842 F.3d 1093, 1094–95 (9th Cir.
2016) (“The IEP incorporated two stages: During stage one, N.E. would finish the end of the 201415 school year in the agreed-upon individual class; during stage two, for the 2015-16 school year
and beginning on September 1, 2015, N.E. would be placed in a self-contained class.”).
12

Clovis, 903 F.2d at 640.

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Order on Motion to Stay Put
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order. The Ninth Circuit held that under IDEA’s stay put provision, the school district
was responsible for the costs of the child’s placement after that date “regardless of
which party prevails” in the appeal. 13
The Court finds that under this controlling precedent, Appellees’ motion for a
stay put order at Docket 127 is GRANTED. During the pendency of the review of the
Hearing Officer’s decision, M.G.’s placement, absent agreement to the contrary, is
Perkins School for the Blind.

DATED this 23rd day of February, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

13

Id. at 641 (citing Sch. Comm. of the Town of Burlington v. Massachusetts Dep’t of Educ., 471
U.S. 359 (1985)).

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