J.E. et al v. BOYERTOWN AREA SCHOOL DISTRICT

Filing 49

MEMORANDUM. ( SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 9/1/11. ) 9/1/11 ENTERED AND COPIES E-MAILED.(gn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
J.E., et al.,

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Plaintiffs,
v.
BOYERTOWN AREA SCHOOL DISTRICT,
Defendant.

CIVIL ACTION
NO. 10-2958

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

I.

SEPTEMBER 1, 2011

INTRODUCTION
Plaintiffs J.E. and the parents of J.E. (J.E. and A.E.,

“the Parents”) (collectively “Plaintiffs”), initiated this action
against the Boyertown Area School District (“Defendant” or
“School District”), seeking the reversal of a Pennsylvania
Special Education Hearing Officer’s decision finding that the
2009-2010 Individualized Education Plan (“IEP”) that the School
District proposed was appropriate and that the School District
would no longer have to reimburse Plaintiffs for private school
placement.
Pending its decision, the Court ordered the School
District to continue to fund J.E.’s tuition and transportation
costs for his private school placement pursuant to 20 U.S.C. §
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1415, the IDEA’s stay-put provision.

In deciding motions for

judgment on the record, the Court upheld the Hearing Officer’s
decision.

Plaintiffs now bring a Motion for Preliminary

Injunction asking the Court to Order that the School District be
required to continue to fund J.E.’s private placement while the
case is on appeal to the Third Circuit, again pursuant to the
IDEA’s stay-put provision.
For the reasons set forth below, the Court will deny
Plaintiffs’ Motion for Preliminary Injunction.

II.

BACKGROUND
On June 21, 2010, Plaintiffs initiated this action

against the Boyertown Area School District.1

Plaintiffs seek the

reversal of Pennsylvania Special Hearing Officer William
Culleton, Esq.’s (“Culleton” or “Hearing Officer”) decision that
the School District’s IEP for J.E. for the 2009-2010 school year
was an appropriate placement.

Plaintiffs claim that the School

District’s proposed IEP fails to provide J.E. with an appropriate
placement.

Plaintiffs argue that instead of placing J.E. in the

District’s Autism Support class (“AS class”) at the public

1

This Court has jurisdiction as this claim is alleging
violations of the Individuals with Disabilities Education
Improvement Act, 20 U.S.C. §§ 1412(a), 1414(d). Thus, the Court
has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
As to this motion, this Court retains jurisdiction while the case
is on appeal to maintain the status quo. See Fed. R. Civ. Pro.
8(a).
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Boyertown Area High School (“BAHS”), the appropriate placement
for J.E. is at the private Hill Top Preparatory School (“Hill
Top”) and that J.E.’s parents should be reimbursed for tuition
and transportation costs for J.E.’s attendance at the Hill Top.
Plaintiffs are also seeking attorney’s fees and costs.
When the School District offered this IEP to J.E.,
J.E.’s parents disagreed with it and filed for a due process
hearing.

Hearing Officer Culleton resolved the dispute in favor

of the School District.

In their Complaint, Plaintiffs attack

the Hearing Officer’s decision on several grounds: (1) it is
based on a non existent document, (2) it ignores the evidence
that the School District failed to offer a timely IEP, (3) it was
not supported by a preponderance of the evidence, (4) it applied
the wrong legal standard, and (5) it made an erroneous
credibility determination finding that A.E.’s “startled reaction”
to a loud sound in the room was evidence that she had a
“heightened sensitivity” to the atmosphere of a large school.
(Plf.s’ Comp. at ¶ 30.)

On August 30, 2010, Defendant filed its

answer, denying Plaintiffs’ allegations and asserting numerous
defenses.

(See Def.’s Answer.)
On September 2, 2010, Plaintiffs filed a Motion for

Preliminary Injunction, arguing that Hill Top was J.E.’s pendent
placement and that under the “stay-put” provision of the IDEA the
School District is responsible for continuing to pay for J.E.’s

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tuition at and transportation to Hill Top.
Prelim. Inj.)

(See Plf.s’ Mot. for

On September 16, 2010, the School District

responded that it should not be responsible for these costs.
(See Def.’s Resp. to Mot. for Prelim. Inj.)

On December 12,

2010, following a hearing, the Court granted Plaintiffs’ motion
and ordered the School District to pay for J.E.’s tuition costs
and transportation to Hill Top pending this Court’s decision.
(Doc. no. 18.)
On December 8, 2010 both parties filed motions for
judgment on the administrative record.
were filed by January 7, 2011.

Responses and replies

On January 18, 2011, the Court

held a hearing on the motions for judgment on the administrative
record and issued a Memorandum Opinion and Order granting the
School District’s motion for judgment and denying Plaintiffs’
motion for judgment.
Plaintiffs now bring a Motion for Preliminary
Injunction asking the Court to Order that the School District be
required to continue to fund J.E.’s private placement while the
case is on appeal to the Third Circuit, again pursuant to the
IDEA’s stay-put provision.

This motion and the School District’s

response are now before the Court.

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III. DISCUSSION
At the beginning of this case, this Court’s Order
granting a preliminary injunction only required the School
District to fund the J.E.’s placement at Hill Top through the
completion of this case in the United States District Court for
the Eastern District of Pennsylvania.

Plaintiffs now move for a

preliminary injunction compelling the School District to maintain
J.E.’s current placement at Hill Top Preparatory School for the
pendency of their appeal to the Third Circuit (doc. nos. 40 &
42).

A. The Third Circuit has Not Decided the Question of
Whether The Stay Put Provision Remains in Effect
Through a Federal Appeal.
The IDEA requires that a state receiving federal
education funding provide for disabled children, a “free
appropriate public education” (“FAPE”).

20 U.S.C. § 1415(a)(1).

In doing so, if a school district cannot provide an appropriate
placement for the child within its public schools, the school
district must pay for tuition and transportation to a private
school that can provide an appropriate education for that child.
In order to provide a FAPE, school districts design and
administer a program of individualized instruction that is set
forth in an IEP.

20 U.S.C. § 1414(d).

The IDEA also gives

parents the right to an impartial due process hearing on

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complaints regarding the educational placement of their disabled
children.

20 U.S.C. § 1415(b)(2).

Parents also have a right to

state or federal judicial review of final administrative
decisions.

20 U.S.C. § 1415(e)(2).
More specifically, the IDEA’s “stay-put” rule requires

that “during the pendency of any proceedings conducted pursuant
to this section, unless the State or local educational agency and
the parents or guardian otherwise agree, the child shall remain
in the then current education placement.”
1415(e)(3).

20 U.S.C. §

The Third Circuit considers the IDEA’s “stay-put”

rule to “function[], in essence, as an automatic preliminary
injunction.”
(1996).

Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864

“[T]he statute substitutes an absolute rule in favor of

the status quo for the court’s discretionary consideration of the
factors of irreparable harm and either a likelihood of success on
the merits or a fair ground for litigation and a balance of the
hardships.”

Id. (citations and quotations omitted).

While it is clear that the IDEA’s stay-put provision
maintains the child’s placement during the District Court’s
review of the agency’s decision, it is not a decided question in
the Third Circuit that the stay-put provision applies during the
pendency of a federal appeal.

A District Court in this Circuit

has found the language in Drinker to mean that the stay-put
provision remains in effect during the appeal to the Third

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Circuit.

Ringwood Bd. of Educ. v. K.H.J., 469 F. Supp. 2d 267

(D.N.J. 2006) (concluding that the stay-put provision applies
throughout the entire judicial process, including circuit court
appeals).

However, both the 6th and D.C. Circuits, as well as at

least one District Court in this Circuit have found that the stay
put provision does not remain in effect during a federal appeal.
See Kari H. v. Franklin Special School Dist., 125 F.3d 855 (6th
Cir. 1997) (holding that Congress did not intend the stay-put
provision to apply during circuit court review); Andersen v.
Dist. of Columbia, 877 F.2d 1018 (D.C. Cir. 1989) (same); Bd. of
Educ. of the Appoquinimink Sch. Dist. v. Johnson, Civ.
06-770-JJF, 2008 WL 5043472 (D. Del. Nov. 25, 2008).
The circuit courts that have found that the stay-put
provision does not apply during a federal appeal have considered
the specific purpose of the stay-put provision in reaching their
conclusions.

That is, that the purpose was “‘to prevent school

officials from removing a child from the regular public school
classroom over the parents’ objections pending completion of the
review proceedings.’”

Andersen, 877 F.2d 1018 at 1024 (emphasis

in original) (quoting Burlington School Committee v.
Massachusetts Dep’t of Ed., 471 U.S. 359, 373 (1985)).

The D.C.

Circuit in Andersen reasoned that “[o]nce a district court has
rendered its decision . . . that change is no longer the
consequence of a unilateral decision by school authorities” so

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that the “automatic injunction perpetuating the prior placement
would not serve the section's purpose.” Id.
The D.C. Circuit also found that the statute itself did
not contemplate that the stay-put provision would remain in
effect during a federal appeal:
Subsection 1415(e)(3) states that a stay-put injunction
shall be granted during “the pendency of any
proceedings conducted pursuant to this section.” The
“section,” 1415, speaks of only three types of
proceedings: due process hearings, state administrative
review where available, and civil actions for review
brought “in any State court of competent jurisdiction
or in a district court of the United States.” 20
U.S.C. § 1415(e)(2). The only other reference in the
section to court proceedings (other than the stay-put
provision itself) is the last sentence of § 1415(e)(2),
authorizing “the court” to hear additional evidence;
this obviously contemplates only the trial court.
Thus, although an appeal is part of a “civil action,”
Congress’s focus appears to have been on the trial
stage of proceedings.
Andersen, 877 F.2d at 1023.
Plaintiffs argue that the stay-put provisions should
remain in place during their appeal to the Third Circuit because
the Third Circuit has recognized that “[t]he Supreme Court has
described the language of section 1415(e)(3) as ‘unequivocal,’ in
that it states plainly that ‘the child shall remain in the then
current educational placement.’”

Drinker v. Colonial Sch. Dist.,

78 F.3d 859, 864 (1996)(quoting Honig v. Doe, 484 U.S. 305, 323
(1988)); see also Pardini, 420 F.3d at 190.

Plaintiffs

specifically point to the Third Circuit’s finding that “[t]he
provision represents Congress’ policy choice that all handicapped
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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.
However, it is in Drinker, the same opinion, that the
Third Circuit identifies the issue of whether the stay-put
provision applies during a federal appeal and explicitly chooses
not to decide the issue.

Drinker, 78 F.3d at 868 n.16 (citing

Andersen, 877 F.2d at 1023).

Thus, the Third Circuit’s strong

language supporting the finding that the stay-put provision
remain in effect during the District Court’s review cannot
support a finding that the Third Circuit supports the application
of the stay-put provision on federal appeal where the Third
Circuit explicitly declined to decide the issue.
Although the Third Circuit has not specifically held
that the stay-put provision remains in effect during the pendency
of an appeal to the Third Circuit, like the court in Johnson, the
Court finds the reasoning of the Andersen court to be very
persuasive.

Providing the stay-put provision during the pendency

of the District Court’s review ensures that school officials
cannot unilateral move a child without federal review.

Indeed,

by providing that the stay-put provision stays in effect through
the District Court proceedings, parents are also protected from
the consequence of a unilateral decision by the local

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government’s agency that provides the initial review of the
school authorities decisions.
However, to require that the stay-put provision applies
during a federal appeal could yield absurd results.

Parents

could continue to appeal to the Third Circuit and then the
Supreme Court forcing a school district to reimburse private
school tuition where multiple levels of review have found that
the IEP offered to the child provides a FAPE.

Further, this will

discourage school officials from agreeing to provide support for
private placement for fear that this leaves them required to pay
until the child graduates regardless of changed circumstances
because all the parents would have to do is continue to appeal.

B. Alternatively, Stay-Put Provision No Longer Applies
as the Parties “Otherwise Agreed”
Alternatively, even if the Third Circuit finds that the
stay-put provision does apply during a federal appeal, Plaintiffs
are not entitled to reimbursement because J.E.’s current pendent
placement is BAHS as the parties “otherwise agreed” to this
placement.

Under the “stay-put” rule, “[t]he relevant inquiry

under section 1415(e)(3) thus becomes the identification of ‘the
then current educational placement.’”
omitted).

Id. at 865 (citations

This Court has already found that J.E.’s pendent

placement was Hilltop when litigation in this Court commenced.
However, the School District argues that by creating a transition
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plan for J.E., the parents and the School District have agreed on
a placement, rendering Boyertown High School as J.E.’s new
pendent placement.
On February 8, 2011, this Court denied all of the
Parents’ claims raised on appeal and ordered that:
the parties shall file an agreed upon transition plan
by Friday, February 18, 2011. If the parties cannot
agree on a transition plan for J.E., each party shall
file a proposed transition plan by Friday, February 18,
2011 for the Court to decide.
(doc. no. 33).
On February 18, 2011, the parties submitted a Joint
Motion For Approval of Joint Transition Plan for this Court’s
approval. (See doc. no. 34.)

The parties’ Joint Transition Plan

included a detailed five-day plan to transition J.E. to the
School District’s high school, as well as a plan to follow up
with a meeting a month after J.E. began attending the District’s
high school to review and revise J.E.’s IEP accordingly.

The

Court approved of the parties’ Joint Transition Plan. (See Doc.
no. 35.)
While the School District attempted to implement the
Joint Transition Plan, Plaintiffs refused to cooperate.

Instead

of following the Joint Transition Plan, J.E. remained at Hill Top
and Plaintiffs pursued a further appeal of this matter to the
Third Circuit and requested continued public funding and
transportation for J.E. to attend the Hill Top.

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However, the

School District denied their request.

The School District now

argues that the transition plan constituted an “agreement”
between the parties, thus satisfying a condition under which the
stay-put provision is no longer applicable.

The Court agrees.

The IDEA’s “stay put” rule requires that “during the
pendency of any proceedings conducted pursuant to this section,
unless the State or local educational agency and the parents or
guardian otherwise agree, the child shall remain in the then
current education placement.”

20 U.S.C. § 1415(e)(3).

Here,

Plaintiffs engaged in discussions with the School District to
create a Joint Transition Plan.

They further submitted the plan

to the Court as one agreed to between the parties without
qualifying their agreement or making any reference to an actual
intent of not following the plan, maintaining J.E. at Hilltop,
filing an appeal, and requesting an injunction requiring the
School District to reimburse them for J.E.’s tuition at Hilltop
and transportation costs.

Once Plaintiffs agreed to the

placement of BAHS in the Joint Transition Plan, the stay-put
provision no longer applied under the clear language of the
provision.
Thus, the Court will deny Plaintiffs’ Motion for
Preliminary Injunction requiring the School District to fund
J.E.’s tuition and transportation costs of attending Hilltop.2
2

The Court does not need to address the issue of
whether, once application of the stay-put provision is denied, a
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IV. CONCLUSION
For the reasons stated above, the Court will deny
Plaintiffs’ Motion for Preliminary Injunction.

An appropriate

order will follow.

preliminary injunction pursuant to Rule 65 may be obtained.
Even if the Court found that Rule 65 is applicable and that
Plaintiffs satisfied all the requirements for a preliminary
injunction, it would be fruitless for Plaintiffs as under Rule
65(c) they would still have to provide security (in the amount of
tuition and transportation costs they seek), negating Plaintiff’s
purpose for seeking this relief.
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