L. et al v. State of Hawaii, Department of Education et al
Filing
35
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR STAY PUT re: 27 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/30/2012. ~ Order follows hearing held 8/27/2012. Minutes: doc no. 28 ~ (afc) 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). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RACHEL L., individually and
)
on behalf of her minor child, )
JULIA L.,
)
)
Plaintiffs,
)
)
)
vs.
)
)
STATE OF HAWAII, DEPARTMENT
OF EDUCATION, and KATHRYN
)
)
MATAYOSHI, in her official
)
capacity as Acting
Superintendent of the Hawaii )
)
Public Schools,
)
)
Defendants.
_____________________________ )
CIVIL NO. 11-00756 LEK-BMK
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’ MOTION FOR STAY PUT
Before the Court is Plaintiffs Rachel L. (“Mother”),
individually and on behalf of her minor child, Julia L.’s
(“Student,” both collectively “Plaintiffs”) Motion for Stay Put
(“Motion”), filed on August 24, 2012.
Defendants the Department
of Education, State of Hawaii, and Kathryn Matayoshi, in her
official capacity as Superintendent of the Hawaii Public Schools
(“Defendants” or “the DOE”), filed their memorandum in opposition
on October 5, 2012, and Plaintiffs filed their reply on
October 19, 2012.
The Court finds this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
After careful
consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, Plaintiffs’ Motion is HEREBY
GRANTED IN PART with respect to Plaintiffs’ request for
reimbursement for Student’s placement at Pacific Autism Center
and DENIED in all other respects for the reasons set forth below.
BACKGROUND
The Court and parties are familiar with the factual and
legal background in this matter.
In its September 25, 2012 Order
(“9/25/12 Order”1), the Court affirmed the Administrative
Hearings Officer’s (“Hearings Officer”) Findings of Fact,
Conclusions of Law and Decision (“Decision”2) dismissing
Plaintiffs’ Request for Impartial Due Process Hearing (“RIH”),
pursuant to the Individuals with Disabilities Education Act of
2004 (“IDEA”), 20 U.S.C. § 1400 et seq.
As set forth in the
9/25/12 Order:
At the time in question, Student was twelve
years old and in the sixth grade at Redemption
Academy. Student is eligible for special
education and related services under the IDEA in
the category of autism. Student’s former home
school was Kaelepulu Elementary School (“Former
Home School”), and her current home school is
Kailua Intermediate School (“Current Home
School”). Student attended Redemption Academy
from 8:00 a.m. until 1:00 p.m. and received
services from Pacific Autism Center from 1:15 p.m.
until 3:30 p.m.
1
The 9/25/12 Order is available at 2012 WL 4472263.
2
The Decision is attached to the Motion as Exhibit 1 to
Plaintiffs’ Declaration of Counsel.
2
2012 WL 4472263 at *1.
Plaintiffs filed their RIH on June 14,
2011, the Hearings Officer issued his Decision on November 29,
2011, and Plaintiffs appealed the Decision to this Court on
December 12, 2011.
I.
Plaintiffs’ Motion
Plaintiffs ask the Court to order the DOE to (1)
immediately pay for Student’s special education and related
services at Pacific Autism Center from December 1, 2011 through
May 9, 2012; and (2) resume Student’s stay-put payments through
the conclusion of these proceedings and any appeal.
Plaintiffs argue that the DOE refused to observe stay
put, even though it stated in a November 2, 2011 letter (“11/2/11
Letter”) to Pacific Autism Center that Student was placed there
pursuant to a prior stay-put order.
[Mem. in Supp. of Motion at
2 (citing Exh. 2 (11/2/11 Letter)).]
According to Plaintiffs,
the DOE has refused to pay for Student’s program since the
Hearings Officer issued his Decision, and that Student was forced
to leave Pacific Autism Center in May 2012 “because of
nonpayment.”3
[Id.]
Plaintiffs argue that stay put is automatic through the
pendency of any administrative or judicial proceedings, including
appeals.
[Id. at 4 (citing 20 U.S.C. § 1415(j)).]
3
They assert
According to Defendants, Student began attending Variety
School after leaving Pacific Autism Center. [Mem. in Opp., Decl.
of Aletha Sutton at ¶ 8.]
3
that Pacific Autism Center is Student’s “current placement” going
forward for stay-put purposes, as evidenced by the 11/2/11
Letter, and remains the “last agreed upon educational placement.”
[Id. at 5.]
Plaintiffs contend that the DOE violated the IDEA
when it stopped making stay-put payments in December 2011, and
unilaterally changed Student’s placement.
II.
[Id. at 5-6.]
DOE’s Memorandum in Opposition
The DOE argues in its opposition that Plaintiffs are
not entitled to relief under the IDEA’s stay-put provision.
It
contends that Plaintiff’s appeal of the Decision did not mount a
substantive challenge to the contents of the individualized
education program (“IEP”), “except for a baseless argument that
Student’s transition plan should have been incorporated into the
IEP, which was clearly not required.”
[Mem. in Opp. at 2.]
According to the DOE, it paid Student’s tuition at
Pacific Autism Center throughout the pendency of the underlying
administrative proceeding pursuant to stay put, but stopped
paying following the November 29, 2011 Decision in its favor.
[Id. at 7 (citing Declaration of Aletha Sutton (“Sutton Decl.”)
at ¶¶ 5-7).]
It argues that Plaintiffs are not entitled to
payments after May 9, 2012 because there is no basis for finding
that Variety School, or any other private school, is Student’s
“current educational placement.”
[Id. at 16-17.]
4
It points to the Court’s holding in the 9/25/12 Order
affirming the Hearings Officer’s finding that Mother’s failure to
cooperate with the school in scheduling the IEP meeting caused
the meeting to be held on a date when the parents claimed they
were unable to attend.
According to the DOE, Plaintiffs are not
entitled to stay put because they caused the procedural violation
complained of, and because the appeal did not bring a nonfrivolous substantive challenge to the IEP.
to follow the district court’s decision in
It urges the Court
A.R. v. Hawaii
Department of Education, Civil No. 10–00174 SOM/RLP, 2011 WL
1230403 (D. Haw. Mar. 31, 2011).
[Id. at 6.]
III. Plaintiffs’ Reply
In their reply, Plaintiffs argue that a motion for stay
put is not a proceeding on the merits, and that it need not
establish the traditional factors necessary to obtain preliminary
relief.
Rather, upon filing “the court must order the status quo
preserved.”
[Reply at 2.]
They argue that stay put is
“obligatory, not discretionary.
It does not require or admit to
a balancing of equities by the court.”
[Id. at 8.]
Plaintiffs
assert that the instant matter is not similar to that in the A.R.
case, and that A.R. did not hold that stay put was inapplicable
to procedural challenges.
[Id. at 6-7.]
Plaintiffs state that the DOE is “using non-payment as
a cudgel to force a student out of a program the DOE does not
5
want to pay for . . . without first obtaining a determination
that the placement offered by DOE is sufficient to address the
student’s needs.”
[Id. at 7.]
DISCUSSION
I.
Plaintiffs Are Entitled to Stay Put
The IDEA provides, in pertinent part, that:
[D]uring 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); see also 34 C.F.R. § 300.518(a).4
“[C]ommonly referred to as the ‘stay put’ provision, [§ 1415(j)]
requires the educational agency to maintain a disabled child’s
educational program until any placement dispute between the
agency and the child’s parents is resolved.”
Johnson v. Special
Educ. Hearing Office, State of Cal., 287 F.3d 1176, 1179 (9th
Cir. 2002).
Under this provision, “the school district and the
state [are] responsible for the costs of [a student’s] placement
4
Section 300.518(a) provides:
Except as provided in § 300.533, during the pendency of
any administrative or judicial proceeding regarding a
due process complaint notice requesting a due process
hearing under § 300.507, unless the State or local
agency and the parents of the child agree otherwise,
the child involved in the complaint must remain in his
or her current educational placement.
6
during the court review proceedings regardless of which party
prevails in this appeal.”
Clovis Unified Sch. Dist. v. Cal.
Office of Admin. Hearings, 903 F.2d 635, 641 (9th Cir. 1990).
Upon entry of a stay put order, a school district is obligated to
pay the cost of the student’s current educational placement
pending the resolution of the judicial proceedings.
Joshua A. v.
Rocklin Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009).
“A motion for stay put functions as an ‘automatic’
preliminary injunction, meaning that the moving party need not
show the traditionally required factors (e.g., irreparable harm)
in order to obtain preliminary relief.”
Id. at 1037 (citing
Drinker ex rel. Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864
(3d Cir. 1996)).
Indeed, “the stay put provision requires no
specific showing on the part of the moving party, and no
balancing of equities by the court[.]”
Id. at 1040.
Application of the stay put provision does not
ordinarily depend on whether the underlying suit is meritorious.
Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 82 (3d Cir.
1996).
Susquenita recognized that stay put “represents Congress’
policy choice that all handicapped children, regardless of
whether their case is meritorious or not, are to remain in their
current educational placement until the dispute with regard to
their placement is ultimately resolved.”
Drinker, 78 F.3d at 864-65).
96 F.3d at 83 (quoting
Congress made a clear policy choice
with § 1415(j) “that the danger of excluding a handicapped child
entitled to an educational placement from that placement was much
7
greater than the harm of allowing a child not entitled to an
educational placement to remain in that placement during the
pendency of judicial proceedings.”
Cronin v. Bd. of Educ. of the
East Ramapo Central Sch. Dist., 689 F. Supp. 197, 202 (S.D.N.Y.
1988).
The DOE urges the Court to follow the decision in the
A.R. case, which held that, where the parent failed to cooperate
in the development of the IEP, the parent is not entitled to
relief under the stay put provision based on a procedural defect
that the parent has caused.
Chief United States District Judge
Susan Oki Mollway explained her decision in A.R. in a subsequent
case, as follows:
This court has previously refused to read the
“stay put” provision of the IDEA as providing a
remedy to a parent for an alleged IDEA violation
that she herself caused. A.R. v. Hawaii, Dept. of
Educ., Civil No. 10–00174 SOM/RLP, 2011 WL 1230403
(D. Haw. Mar. 31, 2011). In A.R., the parent
alleged that the untimeliness of her son’s IEP
constituted a procedural violation of the IDEA.
Id. at *2. The hearings officer disagreed,
declining to conclude that the DOE had
procedurally violated the IDEA because the
untimeliness resulted from the mother’s
obstruction, delay, and lack of cooperation. Id.
at 11. This court affirmed the hearings officer,
ruling that “when a parent causes the untimeliness
and then, without disputing that she caused the
untimeliness, appeals an adverse administrative
ruling only on the ground that she must prevail as
a matter of law whenever an IEP is untimely, the
parent may not prevail in the appeal.” Id. at
*15.
L.I. v. State of Hawaii, Dep’t of Educ., Civil No. 10–00731
SOM/BMK, 2011 WL 6002623, at *6-7 (D. Hawai‘i Nov. 30, 2011).
8
Here, as in the A.R. case, the Court accepted the
Hearings Officer’s uncontested finding that “Mother failed
to reasonably co-operate in setting up a meeting date prior
to the statutory deadline.
To the contrary, her actions
undermined the DOE’s ability to set up that meeting.”
WL 4472263 at *13.
2012
The Court found that Plaintiffs were not
denied a FAPE based on the failure to conduct an IEP meeting
with parents present, as there was no procedural violation
like in the A.R. and L.I. cases.
The Court, relying in part
on A.R., ruled as follows in the 9/25/12 Order:
In sum, the Court concludes in the instant
matter that Plaintiffs were not denied a FAPE.
The DOE has an obligation to schedule an annual
IEP review and, while parental participation is a
critical component of an IEP meeting, the DOE’s
requirement to secure parental participation has
to be met with reasonable efforts. On the
specific facts of this case, the DOE did not fall
short of its obligation. The system functions
best when parents are required to be reasonably
responsive to the DOE’s efforts to schedule the
IEP. Here, the Hearings Officer did an admirable
job of setting forth the facts in the record
supporting his conclusion that Parents failed to
show that the April 14, 2011 IEP meeting was
improperly conducted without a parent in
attendance. The Court AFFIRMS the Decision on
this issue.
Id. at *14.
This Court agrees with the district court’s
decision in A.R., but finds for the purpose of the instant
Motion that A.R. is not governing.
9
In the instant
proceeding, Plaintiffs asserted that “the DOE developed a
Transition Plan, but that it was not incorporated into the
IEP, and therefore, the IEP did not consider Student’s
unique needs and was not designed to offer Student
educational benefits.”
Id. at *15.
The Court found no
denial of FAPE, and found that “the Decision correctly held
that the DOE was not required to include a Transition Plan
in this particular IEP, and that the plan was sufficient to
support the Student’s transfer to a new school environment.”
Id.
On the other hand, in A.R., the plaintiff did “not
bring a substantive challenge to the IEP by arguing, for
example, that the IEP offered by the DOE is not reasonably
calculated to enable Joshua to receive educational
benefits.”
A.R., 2011 WL 1230403, at *6.
In any event, A.R. did not hold that stay put
categorically does not apply to challenges to IEPs based
solely on alleged procedural violations of the IDEA.
A.R.
explains the scope of its holding as follows:
While Joshua’s mother seeks a ruling that any
untimeliness in the issuance of an IEP causes
a state to be liable for private school
tuition, this court does not make that broad
pronouncement. Instead, this court, focusing
on the reason for the untimeliness, confines
itself to ruling that, when a parent causes
the untimeliness and then, without disputing
that she caused the untimeliness, appeals an
adverse administrative ruling only on the
ground that she must prevail as a matter of
law whenever an IEP is untimely, the parent
10
may not prevail in the appeal. That is, the
parent may not prevail either in the form of
a reversal of the administrative ruling, or
in the form of benefits under the “stay put”
provision.
This ruling is not only more limited
than the ruling sought by Joshua’s mother, it
is also more limited than the ruling sought
by the DOE. The DOE appears to be seeking a
ruling that, when a challenge to an IEP is
based on alleged procedural violations of the
IDEA, rather than substantive challenges to
the content of the IEP, the “stay put”
provision does not apply. This court need
not and does not address that broad
contention.
Id. at *6-7 (emphasis added) (citations omitted).
A.R.
explained that its holding was limited to that particular
factual situation, wherein
the only reason Joshua remains at [private
school] is that Joshua’s mother caused the
IEP to be late. Absent her actions, the
substantively unchallenged IEP would have
been in place before the school year began at
[public school], and Joshua’s mother would
have had no basis to challenge the IEP or to
seek private school tuition from the DOE for
the 2009–10 school year. . . . “Appropriate
relief” in this case does not include
reimbursement of [private school] tuition
based on an IEP’s tardiness that Joshua’s
mother herself caused. To rule otherwise
would frustrate, rather than advance, the
intent of Congress.
Id. at *13.
In fact, A.R. recognizes that “[t]he Ninth Circuit
has clearly held that, throughout court review proceedings,
a school district is responsible for maintaining a placement
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that has been determined in an administrative decision to be
appropriate until a court directs otherwise.”
Id.
Here,
the application of the stay-put provision is unequivocal -because Plaintiffs challenged Student’s educational
placement in addition to the alleged procedural violations,
Student “shall remain in the then-current educational
placement . . . until all such proceedings have been
completed.”
20 U.S.C. § 1415(j) (emphasis added); see Honig
v. Doe, 484 U.S. 305, 323 (1988) (rejecting “petitioner’s
invitation to rewrite the statute” when “[f]aced with this
clear directive”).
When Plaintiffs requested a due process hearing,
Student was a qualified disabled student receiving benefits
under the IDEA and was placed, in part, at Pacific Autism
Center.
That is, Pacific Autism Center was her “then-
current educational placement.”
Therefore, under
§ 1415(j)’s clear directive, Plaintiffs were entitled to
stay put at Pacific Autism Center pending these proceedings.
The right to stay put continues to apply through any appeal
to the Ninth Circuit.
See Rocklin Unified Sch. Dist., 559
F.3d at 1038 (rejecting “the [School] District’s position
that the plain language of the stay put provision excludes
appeals from final judgments of the district courts from
civil actions”).
12
It makes no difference that Plaintiffs did not
succeed on the merits of their challenge before this Court.
Section 1415(j) enjoins the DOE from changing Students’s
educational placement “regardless of whether [her] case is
meritorious or not,” Susquenita, 96 F.3d at 83, and
“regardless of which party prevails [on the merits].”
Clovis, 903 F.2d at 641.
Nonetheless, this Court recognizes there are
practical limitations to stay put’s “automatic” nature.
“The reference to ‘automatic’ means ‘that the moving party
need not show the traditionally required factors (e.g.,
irreparable harm) in order to obtain preliminary relief.’
This is a far cry from saying that any request for relief
under the ‘stay put’ provision must automatically be
granted.”
A.R., 2011 WL 1230403, at *10 (quoting Rocklin
Unified Sch. Dist., 559 F.3d at 1037).
As A.R. discussed,
courts have “rejected [the] argument that ‘stay put’
automatically always applies, no matter what.”
Id. at *12.
Under the present circumstances, however, the Court finds
that stay put does apply because, although the parents did
not cooperate with the DOE in scheduling the IEP meetings,
Plaintiffs challenged both the lack of parental
participation and the content of the IEP.
II.
Scope of Stay Put
13
In their reply, Plaintiffs state that: “At the
very least her parents should receive reimbursement for her
attendance at Variety School during that time, and payment
prospectively for [Pacific Autism Center] for a period equal
in length from May 9, 2012, until this matter is concluded.”
[Reply at 14.]
Although the Court finds that Plaintiffs are
entitled to stay put, the Court cannot say as a matter of
law that Plaintiffs are entitled to stay-put reimbursement
for the Variety School, which is not Student’s “current
educational placement.”
It is clear that Plaintiffs are
entitled to reimbursement for Student’s program at Pacific
Autism Center for the period from December 1, 2011 through
May 9, 2012, and prospectively through the pendency of these
proceedings for time she is actually enrolled at Pacific
Autism Center.
The proper course for Plaintiffs, however,
would have been to file a motion for stay put upon filing
their Complaint with this Court, when they were notified by
the DOE that it would no longer pay for Student’s tuition at
Pacific Autism Center.
In any event, the Court is persuaded by
Plaintiffs’ arguments that Student was forced to withdraw
from Pacific Autism Center when the DOE refused to honor
14
stay put, and that this move was not in the nature of a
unilateral placement initiated by Plaintiffs.
The Court
cannot, however, order reimbursement for Student’s tuition
at Variety School because it is not her “current educational
placement,” and has not been determined to be an appropriate
placement under the IDEA.
The Motion is GRANTED with respect to tuition and
fees only at Pacific Autism Center and to the extent
Plaintiffs’ Motion seeks an order requiring the DOE to: “(1)
Immediately pay for [Student’s] special education and
related services at the Pacific Autism Center from
December 1, 2011 through May 9, 2012; and (2) Resume
[Student’s] stay-put payments through the conclusion of
these proceedings and any appeal.”
[Motion at 2.]
The
Motion is DENIED with respect to stay-put payments for any
other placement, including the Variety School.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion
for Stay Put, filed August 24, 2012, is HEREBY GRANTED IN
PART with respect to reimbursement for Student’s placement
at Pacific Autism Center and DENIED in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 30, 2012.
15
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RACHEL L. V. DOE; CIVIL NO. 11-00756 LEK; ORDER RANTING IN
PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR STAY PUT
16
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