I. v. Department of Education
Filing
68
ORDER GRANTING PLAINTIFF'S MOTION FOR STAY PUT re 62 ; 67 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/12/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARCUS I., by and through his )
parent and next best friend, )
KAREN I.,
)
)
Plaintiff,
)
)
vs.
)
)
)
DEPARTMENT OF EDUCATION,
State of Hawaii,
)
)
)
Defendant.
_____________________________ )
CIVIL NO. 10-00381 SOM/BMK
ORDER GRANTING PLAINTIFF’S
MOTION FOR STAY PUT
ORDER GRANTING PLAINTIFF’S MOTION FOR STAY PUT
I.
INTRODUCTION.
Plaintiff Marcus I. is an autistic child receiving
services from the State of Hawaii under the Individuals with
Disabilities Education Act (“IDEA”).
Marcus’s mother, proceeding
on Marcus’s behalf, and Defendant Department of Education (“DOE”)
have had disputes over whether the DOE has offered Marcus a Free
Appropriate Public Education (“FAPE”) in Individualized Education
Plans (“IEPs”) covering several school years.
The present
lawsuit concerns the IEP dated May 5, 2008, and the IEP dated May
4 and 12, 2009, for the 2008-09 and 2009-10 school years,
respectively.
Now before the court is Marcus’s mother’s motion
for a stay-put order authorizing Marcus to stay at his current
private school at DOE expense through completion of the present
litigation.
This court, relying on the Ninth Circuit’s decision
in a related case stating that Marcus is entitled to stay put at
Loveland Academy during the pendency of this action, GRANTS the
Motion for Stay Put (the “Motion”).
II.
STATUTORY FRAMEWORK.
“The IDEA is a comprehensive educational scheme,
conferring on disabled students a substantive right to public
education.”
Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298,
1300 (9th Cir. 1992) (citing Honig v. Doe, 484 U.S. 305, 310
(1988)).
The IDEA ensures that “all children with disabilities
have available to them a free appropriate public education 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).
To provide a FAPE in compliance with the IDEA, a state
educational agency receiving federal funds must evaluate a
student, determine whether that student is eligible for special
education and services, conduct and implement an IEP, and
determine an appropriate educational placement for the student.
20 U.S.C. § 1414.
When a parent disagrees with the contents of an IEP,
the parent may challenge that IEP by demanding an administrative
due process hearing.
See 20 U.S.C. § 1415(b)(6), (f)(1)(A).
A
parent may also enroll the child in a private program, and, upon
establishing that the public school failed to provide a FAPE, the
parent may seek reimbursement.
See 20 U.S.C.
2
§ 1412(a)(10)(C)(ii).
The IDEA also includes a “stay put”
provision that permits a child to stay in the child’s current
educational placement during the pendency of any administrative
or judicial proceeding regarding a due process complaint notice.
See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a), (d).
It is the
stay-put provision that is in issue in the Motion.
III. FACTUAL AND PROCEDURAL BACKGROUND.
The court incorporates and adopts the extensive factual
background laid out in its Order Partially Vacating and Remanding
the Hearings Officer’s June 9, 2010, Decision, ECF No. 34.
For
the convenience of the parties, the court highlights the
pertinent factual information and supplements the procedural
background as follows.
At the time Marcus’s mother filed the Complaint in this
action, Marcus was sixteen years old.
Administrative Record (“AR”) at 96.1
Compl. ¶ 5, ECF No. 1.
Marcus attends Loveland
Id. at 94, 96.
Marcus
lives at a residential facility run by Loveland Academy.
Id. at
Academy, a private institution, on Oahu.
96.
In a Settlement Agreement dated August 9, 2006, the
parties agreed to place Marcus at Loveland Academy for the 200607 school year.
AR at 97.
In an earlier case before Judge David
1
The Administrative Record on Appeal is located at ECF Nos.
11-22, with certain portions sealed.
3
Ezra, Marcus’s mother had challenged Marcus’s two 2007-08 IEPs,
which had placed Marcus at a residential facility in Texas.
The Hearings Officer found in favor of the DOE.
Id.
That ruling was
upheld by Judge Ezra, who determined that the IEPs provided
Marcus with a FAPE. See Marcus I. ex rel. Karen I. v. Dep’t of
Educ., Civ. No. 08-00491 DAE/BMK, 2009 WL 3378589, at *9-10 (D.
Haw. Oct. 21, 2009).
Marcus’s mother appealed Judge Ezra’s ruling.
The
Ninth Circuit held that the issue was moot, because the DOE was
no longer seeking to place Marcus at the Texas facility.
In its
unpublished Memorandum of May 23, 2011, the Ninth Circuit stated,
“The only issue in this case, whether Five Oaks Achievement
Center (Five Oaks) was the least restrictive environment for
Marcus, is moot.”
Marcus I. ex rel. Karen I. v. Dep’t of Educ.,
No. 09-17606, 434 Fed. Appx. 600, 2011 WL 1979502, at *1 (9th
Cir. 2011).
Regarding the issue of stay-put, the Ninth Circuit
said:
Marcus argues that the case is not moot
because dismissing the appeal would have
collateral legal consequences for Marcus,
namely, it would affect whether the DOE
allows him to remain at Loveland pursuant to
the stay-put provision. The DOE stated at
oral argument that if this appeal is
dismissed, Marcus’ stay-put will move to
Baldwin High School.
This line of reasoning lacks merit as a
basis for finding the case not moot for two
reasons. First, the stay-put provision is
designed to allow a child to remain in an
4
educational institution pending litigation.
20 U.S.C. § 1415(j). It does not guarantee a
child the right to remain in any particular
institution once proceedings have concluded.
Thus, the fact that dismissing an appeal as
moot would remove a child from the protection
of the stay-put provision cannot in and of
itself create a live controversy, as the
stay-put order will lapse however the
litigation concludes.
Second, Marcus is entitled to stay put
at Loveland pending his separate ongoing
challenge to the offered placement at Baldwin
High School for school year 2008–2009, the
DOE’s contrary statement at oral argument
notwithstanding. The relevant section of the
IDEA indicates that Marcus is entitled to
stay at his then-current placement “during
the pendency of any proceedings . . . [and]
until all such proceedings have been
completed.” 20 U.S.C. § 1415(j). Marcus was
at Loveland when the disputed 2008–2009 IEP
was issued. As Marcus will in any event stay
at Loveland, Marcus’ placement at Loveland
pursuant to the stay-put provision as applied
to this case does not save this appeal from
mootness.
Id. at *1 (footnote omitted) (emphasis in original).
No issue in
that earlier case remains pending before any court.
While that related action was pending before Judge
Ezra, Marcus’s mother, on November 10, 2009, filed her request
for a due process hearing concerning the two IEPs at issue before
this court.
AR at 97.
Hearings Officer Richard A. Young
conducted the due process hearing and heard testimony over the
course of five days in April 2010.
AR at 95-96.
Officer issued his decision on June 9, 2010.
The Hearings
AR at 94.
He held
that Marcus’s mother had failed to demonstrate that the 2008 or
5
2009 IEP and any Prior Written Notice had denied Marcus a FAPE,
that Baldwin High School was an appropriate placement for Marcus,
and that Marcus’s mother had failed to establish any
discrimination by the DOE against Marcus or Marcus’s mother.
AR
at 112.
Marcus’s mother then appealed to this court on July 7,
2010.
See Compl. for Declaratory & Injunctive Relief, ECF No. 1.
This court concluded that there were unresolved factual issues
regarding: (1) whether Baldwin High School, in conjunction with
any other appropriate agency that might be responsible for
implementing the May 2009 IEP, had the ability to implement the
extended school year, occupational therapy, and speech therapy
services in that IEP; and (2) whether the May 2008 educational
placement offer of “the public high school in his home community”
was specific enough to alert Marcus’s mother that the DOE was
proposing that Marcus be placed at Baldwin High School, as
opposed to Maui High School.
In its Order of May 9, 2011, this
court vacated the Hearings Officer’s Decision and remanded those
two issues to the Hearings Officer for the limited purpose of
conducting further proceedings limited to those issues.
court denied the appeal as to all other areas.
The
See Order
Partially Vacating and Remanding the Hearings Officer’s June 9,
2010, Decision, ECF No. 34.
Marcus’s mother moved for reconsideration.
6
See Mot.
for Reconsideration of Order Filed May 9, 2011, ECF No. 37.
This
court denied the Motion for Reconsideration on June 14, 2011, see
ECF No. 46, and Marcus’s mother filed Plaintiff’s Motion for Stay
Put on June 29, 2011.
See ECF No. 48 (designated in the case
docket as “Second Motion for Reconsideration for Stay Put”).
While the Motion for Reconsideration was pending before
this court, Marcus’s mother took an appeal to the Ninth Circuit
of this court’s order of May 9, 2011.
No. 39.
See Notice of Appeal, ECF
On September 13, 2011, the Ninth Circuit dismissed the
appeal for lack of jurisdiction, noting that the order of partial
remand to the Hearings Officer was not a final appealable order.
See Order of USCA, ECF No. 53.
On November 14, 2011, Marcus’s mother withdrew
Plaintiff’s Motion for Stay Put, saying that the DOE had actually
been paying Loveland Academy’s charges for Marcus.
Mot. to Withdraw Mot. for Stay Put, ECF No. 59.
See Ex Parte
However,
Marcus’s mother now alleges that, on or around November 20, 2011,
the DOE indicated that it would terminate stay-put payments for
Marcus.
See Motion at 2, ECF No. 62.
The DOE allegedly
confirmed on or around December 14, 2011, that it would cease
payments to Loveland Academy in light of the Ninth Circuit’s
Memorandum of May 23, 2011, issued in the appeal from Judge
Ezra’s decision.
See id.
Marcus’s mother therefore asks this
court to resolve whether Marcus is entitled to the benefit of the
7
stay-put provision.2
IV.
ANALYSIS.
A.
The IDEA Provides That A Student Challenging His IEP
May Stay Put At His “Current Educational Placement”
While The Action Is Pending.
The stay-put provision, bearing the title “Maintenance
of current educational placement,” states:
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.
20 U.S.C. § 1415(j).
Subsection (k)(4) concerns a child’s
placement pending a hearings officer’s decision.
Although the
statute itself does not speak of payment or reimbursement, the
Ninth Circuit has interpreted the stay-put provision as requiring
a school district to fund the child’s “then-current educational
placement” at a private school, when applicable, during the
pendency of any administrative or judicial proceedings under the
See Clovis Unified Sch. Dist. v. Cal. Office of Admin.
IDEA.
2
In response to the Motion, the DOE filed its Memorandum in
Opposition to Plaintiff’s Motion to Stay-Put (the “Opposition”).
Marcus and his mother filed their untimely Reply to Defendant’s
Opposition to Plaintiff’s Motion for Stay Put (the “Reply”) on
March 22, 2012, three days after the 14-day deadline for that
filing.
8
Hearings, 903 F.2d 635, 641 (9th Cir. 1990) (per curiam)
(“Clovis”).
The IDEA does not define the phrase “then-current
educational placement.”
However, the Ninth Circuit has
interpreted the phrase to mean “the placement set forth in the
child’s last implemented IEP.”
L.M. v. Capistrano Unified Sch.
Dist., 556 F.3d 900, 902-03 (9th Cir. 2009) (“Capistrano”)
(citing Johnson ex rel. Johnson v. Special Educ. Hearing Office,
287 F.3d 1176, 1180 (9th Cir, 2002); Drinker ex rel. Drinker v.
Colonial Sch. Dist., 78 F.3d 859, 867 (3d Cir. 1996); Thomas v.
Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir. 1990)).
A post-placement administrative or judicial
determination can also define the “current educational placement”
of a child.
“Where a parent unilaterally changes the placement
of a child, but a subsequent administrative or judicial decision
confirms that the parental placement is appropriate, the decision
‘constitute[s] an agreement by the State to the change of
placement’ and the placement becomes the ‘current educational
placement’ for the purposes of the stay put provision.”
K.D. ex
rel. C.L. v. Dep’t of Educ., 665 F.3d 1110, 1118 (9th Cir. 2011)
(quoting Clovis, 903 F.2d at 641).
“However, such a favorable
decision for a parent must expressly find that the private
placement was appropriate.”
Id. (citing Capistrano, 556 F.3d at
903-04).
9
Marcus’s mother argues that Loveland Academy is
Marcus’s “current educational placement.”
She attaches a copy of
the Ninth Circuit’s Memorandum in the appeal from Judge Ezra’s
order, which states that “Marcus is entitled to stay put at
Loveland pending his separate ongoing challenge to the offered
placement at Baldwin High School for school year 2008-2009.”
Marcus I., No. 09-17606, 2011 WL 1979502, at *1; Memorandum, May
23, 2011, attached as Exhibit “A” to Motion, ECF No. 62-2
(emphasis in original).
She contends that issue preclusion and
collateral estoppel prevent relitigation of the stay-put issue.
The DOE responds that Loveland Academy is not the last
agreed-upon placement, as the 2007-08 IEP was validated by the
Ninth Circuit’s Memorandum, there are no further proceedings
before Judge Ezra, and the Hearings Officer in the present case
has determined that subsequent IEPs have provided Marcus with a
FAPE.
The DOE further argues that the Ninth Circuit’s Memorandum
is inapplicable to the present case, because the issue of stay
put was not fully litigated before the Ninth Circuit, precluding
res judicata and collateral estoppel.
In the present case, Marcus’s mother’s due process
challenge to the Hearings Officer’s 2010 decision is currently on
remand to the Hearings Officer for clarification of two questions
posed by this court.
While this action is still pending, Marcus
is permitted to stay at Loveland Academy only if it was his
10
“then-current educational placement” at the time he filed the
due-process complaint.
B.
The Ninth Circuit’s Memorandum Governs the StayPut Issue Before This Court.
The court is faced with the limited question of whether
Marcus is entitled to remain at Loveland Academy while the
underlying action, currently on remand to the Hearings Officer,
is decided.
Because the Ninth Circuit stated in reviewing Judge
Ezra’s ruling that Loveland Academy is Marcus’s stay-put
institution during the pendency of the current action, the court
GRANTS the Motion seeking a stay-put order.
The Ninth Circuit designated the Memorandum as “not
appropriate for publication and . . . not precedent except as
provided by 9th Cir. R. 36-3.”
Id.
Under Rule 36-3, the
Memorandum is precedent if it is “relevant under the doctrine of
law of the case or rules of claim preclusion or issue
preclusion.”
The Ninth Circuit’s decision appears to this court to
be controlling with respect to the present Motion.
The issue of
Marcus’s right to stay put at Loveland Academy while he
challenges his 2008-09 IEP was expressly decided by the Ninth
Circuit in the course of reviewing Judge Ezra’s decision.
Thus,
the stay-put issue appears to fall within the “issue preclusion”
category of Rule 36-3.
Admittedly, the present case deals with Marcus’s IEPs
11
for the 2008-09 and 2009-10 school years, while it was a
challenge to the 2007-08 IEPs that was litigated before Judge
Ezra in Civil No. 08-00491 DAE-BMK.
Nevertheless, in determining
that the appeal from Judge Ezra’s ruling was moot, the Ninth
Circuit relied on its understanding of Marcus’s stay-put rights
in connection with the challenge that is the subject of the
present case, noting that “Marcus is entitled to stay put at
Loveland pending his separate ongoing challenge to the offered
placement at Baldwin High School for school year 2008-2009, the
DOE’s contrary statement at oral argument notwithstanding.”
Marcus I., No. 09-17606, 2011 WL 1979502, at *1 (emphasis in
original).
Given the Ninth Circuit’s explicit determination that
Marcus is entitled to stay put at Loveland Academy during the
present action, this court may not revisit the issue.
While the
DOE is correct that the case before Judge Ezra is not the same as
the case before this court because they deal with different IEPs,
the cases are undeniably closely related and arise from very
similar facts.
Certainly the facts from which any court would
determine whether Marcus is entitled to a stay-put order are
identical in both actions.
The Ninth Circuit must have viewed
the two cases as interrelated in basing its decision in part on
the proceedings in the present case.
decision is binding on this court.
12
The Ninth Circuit’s
This court acknowledges that the DOE is not making a
frivolous argument.
The DOE is correct in noting that no court
or agency has ever determined that the DOE failed to provide a
FAPE and thus must pay for Marcus to attend Loveland Academy as
Marcus’s stay-put institution over the course of multiple
appeals.
The DOE notes that stay put was not fully litigated
before the Ninth Circuit.
A review of the parties’ submissions
to the Ninth Circuit in that case shows that the issue of stayput placement was mentioned only in passing, including in an
assertion by Marcus’s mother in the factual background section.
See Br. of Appellant, No. 09-17606, 2010 WL 5813018 (9th Cir.
Mar. 19, 2010); Def.-Appellee’s Answering Br., No. 09-17606, 2010
WL 5813019 (9th Cir. May 3, 2010); Reply Br. of Appellant, No.
09-17606, 2010 WL 5813020 (9th Cir. May 17, 2010).
The “then-current educational placement” is “the
placement set forth in the child’s last implemented IEP.”
Capistrano, 556 F.3d at 902-03.
The DOE argues that the 2008-09
and 2009-10 IEPs at issue in this case were never implemented,
and are the focus of the current remand to the Hearings Officer.
Nor was the 2007-08 IEP at issue before Judge Ezra ever
implemented, even though Judge Ezra held that it offered a FAPE
in setting Five Oaks in Texas as Marcus’s placement.
In Capistrano, the Ninth Circuit was faced with a
situation in which the student never had an implemented IEP and
13
the student’s parents unilaterally placed the student in a
private program.
Although the parents prevailed before the
district court on their due process challenge, the Ninth Circuit
held that the private school was not the student’s stay-put
institution: “the district court here made no determination from
which we can imply L.M.’s private program is his ‘current
educational placement.’
Unless the district court or agency
actually reaches the merits of the appropriate placement, we will
not imply a ‘current educational placement’ for purposes of
§ 1415(j).”
Capistrano, 556 F.3d at 904.
Marcus was apparently placed at Loveland Academy
through a Settlement Agreement dated August 9, 2006, which
allegedly addressed only the 2006-07 academic year.
5, ECF No. 65.
See Reply at
Marcus’s mother repeatedly claims that the
Settlement Agreement represented a bilateral placement that was
sanctioned by Judge Ezra for stay-put purposes.
See Motion at 6,
ECF No. 62 (“It was judicially determined that Loveland was the
stay put placement by the Honorable David A. Ezra, in Case No.
1:08-CV-00491-DAE-BMK.”); Reply at 5, ECF No. 65 (“the settlement
agreement has been judicially sanctioned as a bilateral placement
agreement by both the judge Ezra and the Ninth Circuit Court of
Appeals”).
However, no party has pointed this court to anything
in any transcript or order evidencing such a statement by Judge
Ezra.
14
For its part, the DOE contends that the Settlement
Agreement addressed Marcus’s placement for only the 2006-07
school year and did not purport to extend Marcus’s placement
beyond that single school year.
The DOE argues that Marcus’s
mother’s decision to keep him at Loveland Academy beyond the
2006-07 school year was a unilateral placement and that the DOE
should not be ordered to continue to pay his tuition there.
The
record is silent as to why the DOE paid for Marcus to attend
Loveland Academy for a period after the 2006-07 school year.
The DOE relies on the Ninth Circuit’s recent decision
in K.D. ex rel. C.L. v. Department of Education, 665 F.3d 1110
(9th Cir. 2011), for the proposition that the student’s current
educational placement is not necessarily the school the student
was attending when the issue of stay put was raised.
also involved a settlement agreement.
That case
The Ninth Circuit said in
that case:
The dispute between the DOE and K.D.
centers on the effect, if any, of the March
2007 settlement on K.D.'s educational
placement. K.D. argues that he was placed at
Loveland by the settlement agreement, and
that Loveland remained his current
educational placement because he continued to
attend school and he never accepted any of
the subsequent IEPs offered by the DOE. In
response, the DOE contends that the
settlement agreement only required the DOE to
pay K.D.'s Loveland tuition for the 2006–07
school year and did not make Loveland K.D.'s
placement for purposes of the stay put
provision. We agree with the DOE.
15
Id. at 1118.
Noting that “there was no favorable agency or district
court decision agreeing with K.D.’s initial unilateral placement
at Loveland,” the Ninth Circuit held that “Loveland Academy is
not K.D.’s stay put placement because the DOE only agreed to pay
tuition for the limited 2006–07 school year, and never
affirmatively agreed to place K.D. at Loveland.”
1121.
Id. at 1118,
In so deciding, the court distinguished the one-year
tuition reimbursement provided for by the settlement agreement
from an indefinite stay-put placement:
K.D.’s settlement agreement never called for
“placement,” and only required tuition
reimbursement. This is not an insignificant
semantic difference. Rather, it was logical
for the DOE to settle the case by agreeing to
pay tuition for a limited amount of time in
order to avoid the costs associated with a
full due process hearing. However, it does
not follow that, by doing so, the DOE had
conducted the detailed evaluation required to
determine whether Loveland was the proper
educational institution for K.D. under the
IDEA.
Id. at 1119.
Whatever the pluses and minuses of the parties’
respective positions in the present case may be, this court is
not writing on a blank slate.
The Ninth Circuit has spoken
clearly on the very issue before this court, and this court rules
in accordance with that clear statement.
The DOE’s arguments are
better made to the appellate court, either on appeal or possibly
16
in a petition for a writ of mandamus.
V.
CONCLUSION.
In keeping with the Ninth Circuit’s statement that
Loveland Academy is Marcus’s stay-put institution in the present
case, the court GRANTS the Motion for Stay Put.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 12, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Marcus I. v. Department of Education; Civil No. 10-00381 SOM/BMK; ORDER GRANTING
PLAINTIFF’S MOTION FOR STAY PUT
17
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