G.B. et al v. DISTRICT OF COLUMBIA

Filing 11

MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on 1/14/2015.(lcckk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
G.B. et al.,
Plaintiffs,
v.

Civil Action No. 15-27 (CKK)

DISTRICT OF COLUMBIA,
Defendant.

MEMORANDUM OPINION
(January 14, 2015)
Plaintiffs Joseph Brown and Jennifer Brown filed suit as the parents and next friends of
their minor daughter, G.B., against the District of Columbia (“the District”). G.B. has been
identified as eligible for special education and related services pursuant to the Individuals with
Disabilities Education Improvement Act (“IDEA”),1 20 U.S.C. § 1400 et seq. This suit invokes
the IDEA’s “stay-put” provision and seeks to force the District to fund G.B.’s placement in a
non-public educational program while the challenge to G.B.’s December 8, 2014, Individualized
Education Program (“IEP”) is under review by an administrative hearing officer. Concurrently
with the Complaint, Plaintiffs filed a Motion for a Temporary Restraining Order (“TRO”) and a
Motion for Preliminary Injunction. During a telephonic conference call with the Court, the
parties agreed to a briefing schedule for Plaintiffs’ TRO request. Minute Order (Jan. 8, 2015).

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The IDEA was re-authorized and re-codified pursuant to the Individuals with
Disabilities Education Improvement Act in 2004, Pub. L. No. 108–446, 118 Stat. 2647
(2004). The short title of the re-authorized and amended provisions remains the Individuals with
Disabilities Education Act. See Pub. L. No. 108–446, § 101; 118 Stat. at 2647; 20 U.S.C. § 1400
(2006). Accordingly, the Court refers to the amended Act herein as the IDEA.

Plaintiffs’ Motion for a TRO is now fully briefed.2 After considering the parties’ briefs, the
accompanying exhibits, and the applicable authorities, the Court finds that Plaintiffs are entitled
to a “stay-put” injunction. Accordingly, Plaintiffs’ Motion for Temporary Restraining Order is
GRANTED. As the grounds for Plaintiffs’ request for a Preliminary Injunction are identical to
the grounds for Plaintiffs’ TRO request, the Court also GRANTS Plaintiffs’ Motion for
Preliminary Injunction, ECF No. [3], during the pendency of the administrative challenge.
I.

BACKGROUND

A. Statutory Framework
The IDEA was enacted to “ensure that all children with disabilities have available to them a
free appropriate public education [“FAPE”] 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 individualized education program (“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

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Plaintiffs’ Motion for a Temporary Restraining Order (“Pls.’ TRO”), ECF No. [2];
Defendant’s Opposition to Plaintiffs’ Motion for a Temporary Restraining Order (“Def.’s
Opp’n”), ECF No. [7]; Plaintiffs’ Reply to Opposition to Motion for Temporary Restraining
Order (“Pls.’ Reply”), ECF No. [8].
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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. 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); accord 34 C.F.R. § 300.518(a). The
purpose of this provision is to prohibit “school officials from removing a child from the regular
public school classroom over the parents’ objection pending completion of the review
proceedings.” Honig v. Doe, 484 U.S. 305, 327 (1988).
B. Factual Background
The following facts are not disputed by the parties. G.B. is a thirteen year-old resident of
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the District of Columbia who has been identified as a student with disabilities who is entitled to
receive special education and related services. Compl. ¶¶ 68, 69, 72. On October 16, 2013, the
District developed an IEP designed to provide G.B. with thirty-one hours of special education
instruction outside of the general education setting and one hour of behavioral support services
outside of the general education setting for a total of thirty-two hours of services. Def.’s Opp’n
at 1; Compl. ¶ 73. On December 13, 2013, the District reconvened the IEP team and developed
another IEP that again provided for thirty-one hours of special education instruction and one
hour of behavioral support services outside of the general education setting. Def.’s Opp’n at 1;
Compl. ¶ 74. Both IEPs “anticipated that [G.B.] would receive her services at a [District of
Columbia Public Schools (“DCPS”)] school that had a fully separate special education setting,
including separate entrance and lunchroom for special education students.” Def.’s Opp’n at 1.
The District identified the location for the provision of services as Hart Middle School
(“Hart”) and G.B. was placed at Hart. Id. at 2; Compl. ¶ 76. However, Hart could only provide
G.B. twenty-seven and a half hours of services per school week because it does not have a fully
separate special education setting. Id. In April 2014, G.B. was raped by two non-disabled
students while transitioning to her bus at Hart. Compl. ¶ 78; Pls.’ TRO at 3, 8; Pls.’ Ex. 4
(Children’s Hospital Medical Records). On December 8, 2014, the District reviewed and revised
G.B.’s IEP to provide for twenty-seven and a half hours of specialized instruction and related
services. Def.’s Opp’n at 2; Compl. ¶¶ 97, 101. The District identified Cardozo High School as
the location for provision of G.B.’s IEP services. Def.’s Opp’n at 2; Compl. ¶ 102. “Due to the
structure of Cardozo, G.B. would normally have transitions and lunch with nondisabled peers.”
Def.’s Opp’n at 2.
On December 31, 2014, Plaintiffs filed an administrative due process complaint before
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the District’s Office of the State Superintendent of Education Office of Dispute Resolution
challenging, among other things, the December 8, 2014, IEP, and placement at Cardozo High
School. Def.’s Opp’n at 2; Compl. ¶¶ 112-13. The administrative hearing officer’s decision is
due by March 16, 2015. Def.’s Opp’n at 1 (citing 34 C.F.R. § 300.515). On January 8, 2015,
Plaintiffs filed the present action invoking the IDEA’s “stay-put provision” and requested that
the District fund G.B.’s placement in a separate non-public special education school while their
due process complaint is adjudicated.
II.

DISCUSSION

Since the “stay-put provision” imposes an automatic statutory injunction, the traditional
four-part test for an injunction does not apply. D.K. ex rel. Klein v. District of Columbia, 962
F.Supp.2d 227, 232 (D.D.C. 2013); Alston, 439 F.Supp.2d at 91-92. Instead, the Court must
answer two questions to determine whether Plaintiffs are entitled to a stay-put injunction: (1)
what was G.B.’s “then-current educational placement” at the time the due process complaint was
filed?; and (2) has the District proposed a “fundamental change” in G.B.’s educational program?
Johnson v. District of Columbia, 839 F.Supp.2d 176, 177 (D.D.C. 2012); see Laster v. District of
Columbia, 394 F.Supp.2d 60, 64 (D.D.C. 2005) (citing Lunceford v. District of Columbia Bd. of
Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984)) (A court may grant a stay put injunction if the
school system proposes “a fundamental change in, or elimination of, a basic element of the
[then-current education placement].”).
A. G.B.’s “Then-Current Educational Placement”
Typically, “[t]he dispositive factor in deciding a child’s ‘current educational placement’
should be the [IEP] . . . actually functioning when the ‘stay put’ is invoked.” Johnson, 839
F.Supp.2d at 177 (quoting Drinker ex rel. Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 (3d
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Cir. 1996)). However, when a plaintiff has challenged the student’s educational placement in
place at the time the “stay-put provision” is invoked, courts traditionally treat the IEP in place
prior to the challenged IEP as the controlling IEP for purposes of the “stay-put provision.” See
Laster, 394 F.Supp.2d at 65 (finding the student’s then-current educational placement to be the
2004-2005 IEP because the student’s guardian did not consent to the 2005-2006 IEP); Spilsbury
v. District of Columbia, 307 F.Supp.2d 22, 25-26 (D.D.C. 2004) (holding that the IEP in place
for the students prior to the challenged IEP controlled what services the students were required to
receive during the pendency of the students’ challenge to the revised IEP).
Here, the parties do not dispute that G.B.’s December 13, 2013, IEP is the “then-current
educational placement” for purposes of the “stay-put provision.” See Pls.’ TRO at 8; Def.’s
Opp’n at 2. The December 2013 IEP provided for thirty-one hours per week of specialized
instruction “in an out of general education setting.” Pls.’ Ex. 3 (Dec. 2013 IEP), at 11. It also
provided for two hundred and forty minutes per month of Behavioral Support Services “in an out
of general education setting.” Id. Behavioral Support Services were to “include counseling,
behavior management and consultation with teacher and parent to ensure that interventions are
consistently implemented in the school setting.” Id. at 9.3 As Defendant explains, “it was
anticipated that the student would receive her services at a DCPS school that had a fully separate
special education setting, including separate entrance and lunchroom for special education

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The Court has placed G.B.’s IEPs under seal along with all of the exhibits Plaintiffs
filed in this case because they contain sensitive identifying information about G.B. and her
disability. The Court has directly quoted language from G.B.’s December 2013 IEP which is
under seal. However, the quoted language contains only a generic description of the services
G.B. was to receive pursuant to the IEP and is akin to the information openly discussed by the
parties in their briefing about the number of hours of services and types of services set forth in
G.B.’s IEPs. Accordingly, the Court finds there is no reason to redact the language from G.B.’s
December 2013 IEP that the Court has included in this Memorandum Opinion.
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students.” Def.’s Opp’n at 1. The December 2013 IEP did not require that G.B. receive the
support of a dedicated aide. Pls.’ Ex. 3 (Dec. 2013 IEP), at 10.
Having identified G.B.’s “then-current educational placement,” the Court must now
evaluate whether the District has proposed a fundamental change in G.B.’s educational
placement such that G.B. is entitled to be placed in her “then-current educational placement”
pending the resolution of Plaintiffs’ challenge to this proposed change.
B. Fundamental Change
At the outset, the Court notes that in response to Plaintiffs’ Motion for a TRO, Defendant
proposed several modifications to G.B.’s challenged December 2014 IEP in order “[t]o comply
with the maintenance of placement provision.” Def.’s Opp’n at 2-3. Specifically, Defendant
proposed that G.B. “enjoy her lunch in a separate setting, which DCPS will provide, that will be
separate from the general education population and monitored by appropriate school personnel.”
Id. at 3.

Defendant also proposed that it “provide G.B. with a dedicated aide who will

accompany her in her transitions between special education classes.” Id. Accordingly, the
change that Defendant is ultimately proposing in G.B.’s educational placement consists of a
reduction from a total of thirty-two hours of specialized instruction and related services in a fully
separate special education setting to twenty-seven and a half hours of specialized instruction and
related services with lunch in a setting separate from the general education population and
monitored by school personnel, and a dedicated aide to accompany G.B. in her transitions
between special education classes.

Defendant argues that this newly proposed educational

placement “will not be a fundamental deviation from the December 13, 2013 IEP” as “the only
de minimis difference [are] transitions among nondisabled peers with a dedicated aide.” Id.
(emphasis in original).
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To be entitled to a “stay-put” injunction, Plaintiffs must identify a “change in the ‘general
educational program in which a child . . . is enrolled, rather than mere variations in the program
itself.’ ” Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984)
(quoting Concerned Parents v. New York City Board of Education, 629 F.2d 751 (2d Cir. 1980));
see also id. (“[A]ppellee 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.”).

Based on this standard, the Court agrees with Plaintiffs that

Defendant’s proposed change in educational placement—even with the recently proposed
modifications—constitutes a “fundamental change” from the December 2013 IEP—G.B.’s
“then-current educational placement.”
G.B.’s December 2013 IEP contemplated thirty-one hours of special education
instruction and one hour of behavioral support services in a fully separate special education
setting. Defendant’s proposed educational placement for G.B. contemplates (1) twenty-seven
and a half hours of specialized instruction and related services, (2) G.B.’s exposure to her nondisabled peers, and (3) lunch segregated from her peers and under adult supervision. The Court
finds that these three changes represent a fundamental alteration to G.B.’s educational
placement.
First, under Defendant’s proposed educational placement, G.B. will receive four and a
half fewer hours of services per week because G.B. will not receive services during lunch or
transition periods as contemplated in her December 2013 IEP. Defendant appears to propose
that this gap in services can be filled by providing G.B. a dedicated aide to accompany her
during transition periods and “appropriate school personnel” to monitor her during lunch.
However, Defendant offers no explanation as to how these modifications match the services
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provided for in G.B.’s December 2013 IEP; specifically, whether the dedicated aide or school
monitor would provide the behavioral support services that the December 2013 IEP
contemplated G.B. would receive during these periods.

The Court finds that neither the

dedicated aide nor the school monitor is an adequate substitute for the services that the
December 2013 IEP contemplated G.B. would receive.

As presented by Defendant, the

dedicated aide is intended to simply “accompany” G.B. during her transitions amongst her
nondisabled peers throughout the school day and the school monitor is intended to simply
“monitor” G.B. during lunch.

See Def.’s Opp’n at 3.

Moreover, it appears that neither

individual can provide the level of services required by G.B.’s December 2013 IEP because the
IDEA does not permit paraprofessionals to provide specialized instruction or related services
without the supervision of a special education teacher. See Assistance to States for the Education
of Children With Disabilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg.
46612 (Aug. 14, 2006) (the IDEA “should not be construed to permit or encourage the use of
paraprofessionals as a replacement for teachers or related services providers who meet State
qualification standards . . . these aides provide special education and related services to children
with disabilities only under the supervision of special education and related services
personnel.”). Indeed, G.B.’s December 2013 IEP, which contemplated a total of thirty-two hours
of services entirely outside of the general education setting, specifically stated that a dedicated
aide was not required, strongly suggesting that a dedicated aide is not an individual capable of
providing the services G.B. requires during transition and lunch periods. Accordingly, the
presence of a dedicated aide or school monitor during transitions and lunch is not a substitute for
the “counseling and behavior management [instruction G.B. is to receive] when interacting with
her peers” during transitions and lunch per G.B.’s December 2013 IEP. Pls.’ Reply at 4-5.
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Defendant’s proposed educational placement represents a substantial reduction in services.
In addition, the District’s proposed educational placement would expose G.B. to her nondisabled peers during transitions in the school day. The December 2013 IEP, by contrast,
purposefully contemplates that G.B. would receive her services in a fully separate setting for
disabled students. See Johnson v. District of Columbia, 962 F.Supp.2d 263, 269 (D.D.C. 2013)
(crediting testimony by a DCPS employee that “when individuals create IEPs that are 32 hours,
what they are actually trying to do is ensure that [the disabled students] do not engage with their
non-disabled peers during non-instructional time[,] which include[s] lunch and transition.”). The
Court finds Defendant’s attempt to remedy this difference by assigning G.B. a dedicated aide to
accompany her during transitions amongst non-disabled students unavailing. A fundamental
aspect of G.B.’s December 2013 IEP was the requirement that all of G.B.’s services be provided
to her outside of the general education setting to “prevent G.B. from being exposed to her nondisabled peers at any point in time during the day.” Pl.’s Reply at 8. Even with a dedicated aide
to accompany her, G.B. will still be exposed to her non-disabled peers. And, as previously
discussed, the dedicated aide will not be able to provide G.B. with the requisite services to help
G.B. navigate that exposure during these transition periods.4
Finally, beyond resulting in a reduction of services, the Court finds Defendant’s proposal
that G.B. spend lunch “separate from the general education population and monitored by
appropriate school personnel” does not bring Defendant’s proposed educational placement closer

4

Plaintiffs also argue that assigning G.B. a dedicated aide to accompany her during her
transitions amongst the general education population does not ameliorate her exposure to that
population because G.B. had been assigned a dedicated aide at Hart the day she was raped by
two non-disabled students while transitioning to the bus. See Pls.’ TRO at 8; Pls.’ Ex. 13 at 3.
However, it is unclear to the Court from the parties’ briefs whether the dedicated aide at Hart
was assigned to accompany G.B. during her transitions at Hart.
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to G.B.’s December 2013 IEP, but instead makes the proposed placement more restrictive.
While G.B.’s December 2013 IEP requires that she be separated from her non-disabled peers at
lunch, it does not bar her from enjoying lunch with her disabled peers. Defendant’s proposed
educational placement would appear to require G.B. to eat lunch alone without any of her peers
because, “[d]ue to the structure of Cardozo,” disabled students “normally” eat lunch with their
nondisabled peers in the general education setting. Def.’s Opp’n at 2.
In Lunceford, the Court of Appeals for the District of Columbia Circuit found that “a
move from a ‘mainstream’ program to one consisting only of handicapped students would
constitute a change in educational placement; a move from one mainstream program to another,
with the elimination of a theater arts class, would not be such a change.” 745 F.2d at 1582.
Here, the Court finds that the four and a half hour per week reduction in important specialized
instruction and behavioral support services, the exposure to nondisabled students during
transition periods throughout the day, and the segregated lunch setting represent far more than
mere programmatic variations in G.B.’s educational placement. Even with Defendant’s recently
proposed modifications to the challenged December 2014 IEP, the District is seeking to place
G.B. in a more mainstream setting than is clearly contemplated by G.B.’s December 2013 IEP—
her “then-current educational placement.”

Accordingly, the Court finds that Defendant’s

proposed educational placement represents a fundamental change in the structure of and quantity
and quality of services provided by G.B.’s educational placement entitling Plaintiffs to a “stayput” injunction.
III.

CONCLUSION

For the foregoing reasons, the Court shall GRANT Plaintiffs’ Motion for a Temporary
Restraining Order. Accordingly, if none of the DCPS schools can provide thirty-two hours of
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special education and related services as required by G.B.’s December 2013 IEP, as Plaintiff
contends, DCPS must provide G.B. with placement in a similar program during the pendency of
administrative proceedings.

Knight v. District of Columbia, 877 F.2d 1025, 1029

(D.C.Cir.1989); McKenzie v. Smith, 771 F.2d 1527, 1533 (D.C. Cir. 1985); Block v. District of
Columbia, 748 F.Supp. 891, 898 n.9 (D.D.C.1990). Plaintiffs have suggested two non-public
special education schools that appear to meet the requirements of G.B.’s December 2013 IEP:
Frost School and Accotink Academy. Pls.’ TRO at 10. The Court will give Defendant the
opportunity to file a Notice with the Court by no later than January 16, 2015, indicating whether
there is a DCPS school that can accommodate G.B.’s December 2013 IEP or whether G.B. will
be placed in a non-public special education school and the date on which G.B. will be placed in a
proper educational placement. The Court expects G.B. to be placed in a proper educational
placement forthwith as she is presently at home and not receiving any educational benefits.
Because Plaintiffs’ Motion for a Preliminary Injunction is identical to Plaintiffs’ Motion
for a TRO and because a TRO will expire after fourteen days, see Fed. R. Civ. P. 65(b)(2)—long
before the administrative hearing officer will have rendered a decision regarding the challenged
2014 IEP—the Court shall also GRANT Plaintiffs’ Motion for a Preliminary Injunction pending
the resolution of the administrative due process hearing. Nevertheless, the Court shall give
Defendant the opportunity to object to the Court’s treatment of the Motion for Preliminary
Injunction by no later than January 20, 2015, if Defendant believes there is a reason that
Plaintiffs’ Motion for a Preliminary Injunction should not be treated the same as Plaintiffs’
Motion for a TRO.
//
//
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An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

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