Seashore Charter Schools v. E.B. bnf G.B.
Filing
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ORDER GRANTING PRELIMINARY INJUNCTION; granting 4 Motion for Temporary Restraining Order.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
SEASHORE CHARTER SCHOOLS,
Plaintiff,
VS.
E.B. BNF G.B.,
Defendant.
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§ CIVIL ACTION NO. 2:14-CV-345
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ORDER GRANTING PRELIMINARY INJUNCTION
Pending before the Court is “Plaintiff’s Application for Extension of Amended
TRO or in the Alternative Plaintiff’s Application for Temporary Injunction Hearing”
(D.E. 4). The Court reviewed the record, including the Application and Memorandum
(D.E. 4, 7), the Response and Memorandum (D.E. 8, 8-6), and the Special Education
Hearing Officer’s rulings (D.E. 7-1, 7-4, 8-1). On August 29, 2014, the Court heard
evidence and arguments and, at the conclusion of the hearing, ruled in favor of Plaintiff,
Seashore Charter Schools (Seashore), GRANTING the Application and ordering that
Defendant be restrained from attending school at Seashore.
The Court issues the following findings of fact and conclusions of law in support
of its ORDER, as follows:
1.
Seashore Charter Schools, Plaintiff in this cause, filed a Verified
Application for Injunctive Relief, including a request for a temporary restraining
order in County Court at Law No. 3 in Nueces County on August 15, 2014. D.E.
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1-1. The state court issued a temporary restraining order and set the matter for
hearing on a state temporary injunction for August 28, 2014. D.E. 4-1.
2.
On August 20, 2014, the Defendants removed the matter to this
Court. D.E. 1.
3.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. §
1331 in that it presents a federal question under the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. § 1415, et seq.
4.
To the extent applicable, Seashore has exhausted all available
administrative remedies. Based on the facts and circumstances of this matter, any
further attempts to exhaust remedies would be futile.
5.
To be entitled to a preliminary injunction, the applicant must show
(1) a substantial likelihood that it will prevail on the merits; (2) a substantial threat
that it will suffer irreparable injury if the injunction is not granted; (3) a substantial
injury outweighs the threatened harm to the party whom it seeks to enjoin, and (4)
granting the preliminary injunction will not disserve the public interest. Bluefield
Water Ass’n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252-53 (5th Cir. 2009).
Seashore has met each of these requirements.
6.
The parties are currently engaged in an administrative special
education due process hearing styled E.B. v. Seashore Charter Schools, Docket
No. 260-SE-0613.
The “stay-put” provision of IDEA states that “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
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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.” 34 C.F.R. § 300.518(a).
7.
In White v. Ascension Parish School Board, 343 F.3d 373, 379 (5th
Cir. 2003), the Fifth Circuit held that “an educational placement” as used in the
IDEA means educational program—not the particular institution where the
program is implemented. “Placement” does not mean a particular school, but
means a setting such as regular classes, special education classes, special schools,
home instruction, or hospital or institution-based instruction.
8.
E.B. is a 15-year-old male student who has been diagnosed with
severe Autism, communication and cognitive delays, and who has demonstrated
unpredictable behavioral issues.
During his time at Seashore, despite always
being accompanied by a teacher or an aide, he has assaulted at least one student,
that student’s parent, and his own teacher or aide. He has bit, leaving substantial
teeth marks, scratched, grabbed, hit, and has pulled out a chunk of hair. He has
also engaged in self-injury. Seashore has hired a behavioral specialist to try to
work with E.B. on his violent tendencies.
9.
E.B. has experienced substantial growth with puberty and has
become increasingly difficult to control among a student population that is
younger and smaller than he.
10.
During the last school year, the teacher who had been working as the
special education teacher for Seashore resigned from that position. After Seashore
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could not find a suitable replacement teacher, a behavioral specialist who had
worked with E.B. and has special education credentials rearranged her private
clinic practice to finish out the school year with E.B. That teacher is no longer
available to Seashore.
11.
The evidence is undisputed that Seashore engaged in reasonable
efforts to secure a new special education teacher to work with E.B. Seashore has
been unable to find such a teacher.
12.
Without an appropriate teacher, homebound education is not a
practical alternative. Furthermore, the parties agree that homebound education
would be a step backward for E.B.’s education and development. The detrimental
impact of homebound education was described as likely to cause regression on
issues of both aggression and social gains E.B. has made in past years.
13.
It is undisputed that Flour Bluff High School (FBHS) is the public
school to which E.B. is assigned based upon his residence.
14.
Seashore demonstrated that FBHS has an equivalent self-contained
classroom for students with similar educational challenges as E.B. FBHS is ready,
willing, and able to comply with all aspects of E.B.’s Individual Educational Plan
(IEP) and Behavioral Intervention Plan (BIP). FBHS has the facilities and staff to
fulfill E.B.’s particular needs, both with respect to his Autism and his behavioral
issues.
FBHS also offers age-appropriate fellow students and a program to
eventually transition out of the school atmosphere. Included are extra-curricular
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opportunities not available at Seashore, such as Special Olympics and a number of
sports.
15.
While E.B.’s mother criticized the FBHS facility and program, she
admitted that she had not taken advantage of opportunities that FBHS provided to
visit the facility and observe the program. Neither was she familiar with the
comparative facilities at Seashore, which had changed over the last year.
Furthermore, her complaints regarding E.B.’s potential exposure to crowds and
noise were not credible, given Seashore’s witnesses explaining E.B.’s equivalent
participation in physical education classes and lunch in the cafeteria or library at
Seashore.
16.
The evidence demonstrates a substantial likelihood that Plaintiff will
prevail on the merits.
17.
Additionally Plaintiff will suffer irreparable injury if an injunction is
not granted. Plaintiff is a charter school that serves students from kindergarten to
eighth grade. Defendant is a young man who will turn 16 next month and has
already been retained one year at Seashore.
Due to Defendant’s behavioral
challenges and the younger ages of the students at Seashore, Defendant poses a
substantial risk of harm to the other students and staff, with or without the staff
with credentials necessary to address E.B.’s issues.
18.
The evidence demonstrates that the substantial injury to be suffered
by Seashore outweighs the threatened harm to the Defendant. E.B. will only
benefit from an age appropriate placement at the Flour Bluff High School. It is the
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least restrictive environment that will fully provide him with the services outlined
in his current IEP with age appropriate peers.
Finally, the granting of this
preliminary injunction will not disserve the public interest since the appropriate
placement of a student in a setting required by law only fosters the public interest,
which inures to the benefit of the other students, staff members, the community in
general, and, most importantly, E.B.
19.
After reviewing the evidence, case law, the administrative hearing
officer’s orders, and the arguments of counsel, the Court has determined that a
preliminary injunction should issue and that the stay-put placement for E.B. is at
FBHS, in the self-contained setting, which is age appropriate.
The Court ORDERS that E.B. is not to attend Seashore. His stay-put placement is
at FBHS until October 8, 2014 or until the administrative hearing officer renders a
decision. Defendant E.B. shall attend FBHS, in a self-contained setting, under his current
educational program until further action is taken by this Court or until the appropriate
resolution of the administrative proceedings.
On August 15, 2014, the state district clerk issued a cash bond certification on
behalf of the Plaintiff in the amount of FIVE HUNDRED DOLLARS ($500.00). This
bond shall remain in effect during the pendency of the temporary injunction issued by the
Court in this matter.
ORDERED this 3rd day of September, 2014.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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